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.

Why go to the NSWLEC for a development appeal

The Land and Environment Court (“LEC”) is a specialist environmental court in New South Wales.  Amongst other things, the LEC hears development application appeals.  Applicants can appeal their development application if they are not satisfied with the outcome of the application or if Council has failed to make a determination within 40 days (deemed refusal).  Two common reasons an applicant will appeal to the LEC are timing and objectivity.


Councils are often flooded with development applications and waiting patiently for them to get to yours is oftentimes unfeasible.  You may have high holding costs for sites or you may have an option to purchase a property which expires sometime in the not so distant future.  The LEC operates under the view that court proceedings should be resolved in a just, quick and cheap way.   In terms of how that translates to the real world, the Court sets a formal timetable for the resolution of the appeal and the parties are expected to stick to that timetable.  Having a formal timetable provides applicants much greater certainty over the determination of their development application when there are competing time constraints.


Another reason you might wish to appeal to the LEC is that decisions about whether an issue with a proposed development is a real issue are made on the basis of expert opinions and evidence.  The LEC provides a mechanism for the party’s experts to confer in an effort to reach agreements.  Further, the Court is objective and impartial.  If your development application is suitable on its merits and evidence can support this, then personal or political inclinations should not impact the determination of your appeal.   Many applicants of development applications who feel hard done by the decisions of Councils are comforted by how the LEC is a platform for reaching an evidence based, just outcome.

There are countless other reasons why applicants appeal to the LEC, including the availability of dispute resolution options, the opportunity to obtain a formal statement comprising Council’s issues with the proposal and opportunities to meet with Council and its experts to resolve and narrow issues and explore alternative schemes worthy of approval.

Contact us for a complimentary discussion about whether appealing to the LEC is the right move for you.

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