Posted on September 19, 2023 by Stuart Simington and

Reminder: The modification of a development consent is not the ‘grant of a development consent’

The power of a consent authority to modify a development consent is set out at sections 4.55 (for modification of consents generally) and 4.56 (for modification of consents granted by the Court) of the Environmental Planning and Assessment Act 1979 (EPA Act).

Sections 4.55(4) and 4.56(1C) of the EPA Act each provide that “[t]he modification of a development consent in accordance with this section is taken not to be the granting of development consent under this Part, but a reference in this or any other Act to a development consent includes a reference to a development consent as so modified.”

Therefore, where a provision relates only to the ‘granting of development consent’, it will generally not apply to the modification of a development consent.

The courts have confirmed this principle in a number of contexts, for example:

  • A condition requiring a contribution under s 7.11 of the EPA Act cannot be imposed to meet the modification of a development consent: see Peter Duffield and Associates Pty Ltd v Canada Bay City Council [2002] NSWLEC 168 at [34] – [35].
  • A written request pursuant to cl 4.6 of a standard instrument local environmental plan is not required for the contravention of a development standard arising as a result of a modification application: SDHA Pty Ltd v Waverley Council [2015] NSWLEC 65 at [34] – [35].

While there is no express power to impose or amend conditions when determining an application for a modification application, the courts have found that the power to do so is implied: see for example Ku-ring-gai Council v Buyozo [2021] NSWCA 177 at [42].

No power to modify a consent subject to a deferred commencement condition

A recent decision of the Land and Environment Court considered whether a council had the power to grant the modification of a development consent subject to a deferred commencement condition.

The applicant was the owner of land which had the benefit of a development consent for the construction of a residential flat building (Development Consent). The Development Consent had previously been modified subject to a number of conditions (Modification), including the imposition of a deferred commencement condition requiring certain steps to be taken in relation to the proposed stormwater arrangements prior to the commencement of the consent (Deferred Commencement Condition).

The power of a consent authority to impose a deferred commencement condition is provided at s 4.16(3) of the EPA Act, which provides that a “development consent may be granted subject to a condition that the consent is not to operate until the applicant satisfies the consent authority…as to any matter specified in the condition.”

The applicant submitted that as the power to impose a deferred commencement condition relates only to the granting of development consent, it is not available on the modification of a consent.

Justice Duggan accepted the applicant’s submissions, finding that the reference to ‘development consent may be granted‘ at s 4.16(3) of the EPA Act does not include the modification of a development consent, and therefore the council did not have the power to impose the Deferred Commencement Condition.

Her Honour said:

“The power to modify a development consent is not the grant of a development consent. Whilst a consent, once modified, operates as a development consent it is not either by text or context to be taken to be the grant of a development consent.”

On this basis, the Modification was set aside, having the effect that the Development Consent would continue to operate as if it had never been modified.

Takeaway

This case serves as a reminder of the more limited powers available to consent authorities when granting consent to applications for modifications of development consents. Both applicants and consent authorities should be aware of those limitations when either preparing, or determining, modification applications, to ensure that both processes are properly directed towards the requirements which are relevant to those applications.

The judgment is available to read on the NSW Caselaw website here: Peake Pearce Pty Ltd v Georges River Council [2023] NSWLEC 89.

If you wish to discuss this post please contact Stuart Simington on 8235 9704 or Alex Rutherford on 8235 9720.