Posted on July 15, 2021 by Megan Hawley

UPDATE: Modifications of Modification Applications and Requests

After a number of weeks of uncertainty, the State Government has now amended the Environmental Planning & Assessment Regulation 2000 (EPA Reg) to ensure that a modification application made under s4.55 of the Environmental Planning & Assessment Act 1979 (EPA Act) or a request to modify an approval in respect of State significant infrastructure, can be amended before it is determined.

The Environmental Planning and Assessment Amendment (Modifications) Regulation 2021 (Amending Reg) was published on 14 July 2021.

It inserts new provisions into the EPA Reg including a new clause 121B which provides that an application for modification of a development consent may, with the agreement of the consent authority, be amended by the applicant at any time before the application is determined by lodging the amendment on the NSW planning portal. 

There is a similar provision in the new clause 196B which provides that a request to modify the Minister’s approval for State significant infrastructure under s5.25(2) of the EPA Act may be amended by the proponent with the agreement of the Planning Secretary at any time before the request is determined.

This addresses the issues raised by Preston CJ sitting in the Court of Appeal in AQC Dartbrook Management Pty Ltd v Minister for Planning and Public Spaces [2021] NSWCA 112 and Robson J in the Land & Environment Court Duke Developments Australia 4 Pty Limited v Sutherland Shire Council [2021] NSWLEC 69, regarding the inability to modify most modification applications due to a lack of a specific power to do so. Our article on those decisions can be found here.

The Amending Reg also inserts some additional provisions into the EPA Reg as follows:

  • a new clause 121A provides for consent authorities to request additional information in respect of modification applications;
  • a new clause 122B which relates to deemed refusals of modification applications and provides that the time between a request for information and the provision of the information, or notification that no information will be provided, is not included in the calculation of the deemed refusal period.

Presumably the new clause 121A has been included as a result of a concern that the absence of an express power to request further information in respect of modification applications could be construed to mean there was no power to make such requests, based on the reasoning of Preston CJ in respect of the power to amend in AQC Dartbrook.

The amendment to the EPA Reg means that consent authorities can revert to what was their common practice before the decision in AQC Dartbrook, and accept amendments to modification applications.

The Amending Reg is in force (in respect of the above provisions) and can be found here.

If you would like to discuss the impact of the Amending Reg, or any other matter relating to the assessment of modification applications, leave a comment, or call Megan Hawley on 02 8235 9703.