Update on law relating to modification applications

Following the recent excitement concerning whether an application to modify a development consent under the Environmental Planning and Assessment Act 1979 (NSW) (“Modification Application”) could be amended prior to its determination, the legislation has been clarified.

In the decision of AQC Dartbrook Management Pty Ltd v Minister for Planning and Public Spaces [2021] NSWCA 112 (“Dartbrook”), published on 3 June 2021, Chief Justice Preston of the Land and Environment Court (“LEC”) expressed the view that there was no power in the legislation to amend a Modification Application after it had been lodged.

Then, on 2 July 2021, Justice Robson of the LEC handed down his decision in Duke Developments Australia 4 Pty Limited v Sutherland Shire Council [2021] NSWLEC 69 (“Duke Developments”), in which he agreed with the Chief Judge of the LEC, after a considered analysis of the relevant law.

These decisions caused a stir because, for more than a decade, the ability to amend a Modification Application had been accepted by applicants and consent authorities (including the LEC on appeal) in reliance on the decision in Jaimee Pty Ltd v Council of the City of Sydney [2010] NSWLEC 245.

Thankfully, on 14 July 2021, the Environmental Planning and Assessment Regulation 2000 (NSW) was amended to provide that amendments are allowed to Modification Applications, prior to determination, with the agreement of the consent authority.  In effect, the ability to amend a Modification Application is to be treated in the same way as an amendment to a development application.

If you would like legal advice regarding a development application or Modification Application, including with respect to amendments to such applications, please do not hesitate to reach out.