Legal Insights

Can I amend it? Power to amend a modification application

By Breellen Warry, Patrick Ibbotson, Joshua Same, Michael Winram, Georgia Appleby & Susanne Rakoczy

• 10 August 2021 • 3 min read

New amendments to the Environmental Planning and Assessment Regulation 2000 allowing amendment modification applications and explain the outcomes of AQC Dartbrook Management Pty Ltd v Minister for Planning and Public Spaces [2021] NSWCA 112.

In early June 2021, the NSW Court of Appeal published its decision in AQC Dartbrook Management Pty Ltd v Minister for Planning and Public Spaces [2021] NSWCA 112 (Dartbrook Management) which raised significant doubts regarding the power to amend a modification application (Mod).

This overturned a raft of previous decisions of the Land and Environment Court on this issue and caused many industry players, including councils and proponents alike, to hurriedly come up with creative solutions and workarounds for amending existing Mods.

However, we can now rest easy as the NSW Government moved quickly to resolve this by introducing amendments to the Environmental Planning and Assessment Regulation 2000 (EP&A Regs) which came into effect from 14 July 2021. These amendments clarify that a proponent can amend a Mod, in the same way as a development application.

What does the decision in Dartbrook Management mean for proponents and local councils?

In Dartbrook Management, the Court found that (prior to the recent amendments of the EP&A Regs):

  • there was no express or implied authority in the Environmental Planning and Assessment Act 1997 allowing a proponent to amend an application to modify a development consent or an approval
  • the Court had no power to amend, or allow the amendment of, an application to modify a development consent or approval

Changes to the EPA Regulations

The decision in Dartbrook Management raised concerns in the industry, particularly because it essentially reversed a commonly-held belief that Mods could be amended, and in doing so, left many proponents in limbo.

So, to combat this, the NSW Government introduced amendments to EP&A Regs to deal with the issues raised by Preston CJ in Dartbrook Management. These amendments came in to force on 14 July 2021 and make plain that proponents can seek to amend a Mod with the agreement of the relevant consent authority.

So, what does this mean for proponents?

  • Clause 121B of the EP&A Regs will allow a proponent to amend a Mod with the agreement of the consent authority at any time before the application is determined. This can be done by lodging an amendment on the NSW Planning Portal.
  • Clause 196B will allow a proponent to amend the Minister’s approval for State significant infrastructure, but only with agreement of the Planning Secretary, and only before the application is determined.

What are the implications for local councils?

  • Clause 121A allows councils to request additional information from applicants seeking to amend a Mod.
  • Clause 121B provides that proponents will need agreement from council, where the council is the consent authority for that Mod.

The amendments to the EPA Regulations also specify the timing of when documents are to be provided and the period for the deemed refusal of Mods.

Require further assistance on these changes?

Contact a member of our Planning & Environment team for further guidance

By Breellen Warry, Patrick Ibbotson, Joshua Same, Michael Winram, Georgia Appleby & Susanne Rakoczy

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