The NSW Government has tabled a bill proposing to amend the Environmental Planning and Assessment Act 1979. The proposed amendments are in response to decisions of the Court that have caused the construction industry some uncertainty, and look to restore a level of practicality to the power to modify a consent, codify power to approve a development inconsistent with a concept, and recognise the status of an objection made out of time.

Key points

• Potentially an additional threshold in the exercise of the power to modify a consent, introducing "no or" to the minimal environmental impact test and "same or" to the substantially the same development test.
• A modification application can be made to modify a condition only; there is no need for a physical change to the development.
• Development consent can be granted to a development which is inconsistent with a concept consent provided a condition is imposed requiring the modification of surrender of the concept.
• Objections by way of submission received out of time are not to be considered in determining the relevant consent authority; the consent authority may consider submissions received out of time.

What amendments are proposed

On 18 February 2025, Mr Paul Scully, Minister for Planning and Public Spaces, moved a motion introducing the Environmental Planning and Assessment Act Amendment Bill 2025 (Bill 2025) in the Legislative Assembly.

The amendments proposed by the Bill 2025 include:

• The power to modify a development consent in two respects.
• The power to approve an application which is inconsistent with a concept.
• The community participation requirements.

Minister Scully in his Second Reading said that, “[The Bill 2025]… makes necessary amendments to further streamline the planning system, support the delivery of housing and provide certainty to the construction industry…The bill responds to decisions from three separate challenges in the New South Wales courts to restore certainty in planning assessment decisions...”

Below we discuss the more interesting amendments proposed by the Bill 2025, to the Environmental Planning and Assessment Act 1979 (EP&A Act) and the Ministers justification where provided.

Amendments to modification power

Additional threshold for modification

The Court has established principles over the years with respect to what s4.55 and 4.56 of the EP&A Act requires when considering if a modification is of minimal environmental impact (see Bechara v Plan Urban Services Pty Ltd & Ors [2006] NSWLEC 594) and substantially the same (see our article The 'substantially the same' test for modification applications: How to apply it). These ‘tests’ are jurisdictional, in other words they are a threshold to be passed, in the exercise of the power to approve a modification.

The Bill 2025 proposes to amend ss4.55 and 4.56 which will require a consent authority to consider whether a modification will have"no or" minimal environmental impact, and will result in the "same or" substantially the same development. It is difficult to appreciate the rationale for this amendment because not only does the Second Reading not mention it, but neither does the Explanatory Notes to the Bill 2025.

In our view this is an unnecessary change and could lead to greater costs for applicants if not refused applications because the words "no or", and "same or" arguably add an additional threshold. The consequence of this being that the proposed amendment is likely to be ineffective, if not lead to increased costs of assessment.

For example, if an applicant simply sought to establish that the modification was of no impact, but the consent authority formed the view that it was of some impact then the threshold to grant the modification could not be passed. The result being that in every case it is likely that an applicant would incur additional consultant costs in order to establish that the modification is of minimal impact, leaving it open for the consent authority to find that it was so minimal as to have no impact, or provide an assessment of both no impact or alternatively minimal impact.

Power to modify a condition only

In our article Constraints on modifying consent conditions, we discussed the effect of the decision of the Court of Appeal in Ku-ring-gai Council v Buyozo Pty Ltd [2021] NSWCA 177 where the Chief Judge of the Land and Environment Court found that there was no power to modify a consent where the proposed modification did not effect a physical change to the development the subject of the consent.

This decision was contrary to widely accepted practice and judicial precedent that the beneficial and facultative modification power was wide enough to permit the modification of conditions without effecting any physical change to the development.

In response to Buyozo, the the Bill 2025 propose an amendment to ss4.55 and 4.56 to insert an additional section which provides that, “To avoid doubt a consent authority is not prevented from modifying a consent under this section…if it would not result in a change to the development the subject of the consent. ”This is to counter what the Minister describes, as a consequence of Buyozo, as the proliferation of applicants bundling changes in order to make non-physical changes to development.

In our view this is a very pragmatic amendment and should be made, to combat what we have also seen (and recommended) in applicants bundling modifications.

Inconsistency with a concept

Consent authorities often cite s4.24(2) of the EP&A Act as a jurisdictional (threshold) barrier for any development application being made that is inconsistent with a concept consent. It is obvious why this is the case, from the plain reading of the section which is, “While any consent granted on the determination of a concept development application for a site remains in force, the determination of any further development application in respect of the site cannot be inconsistent with the consent for the concept proposals for the development of the site.”

The case of Castle Hill Panorama Pty Ltd v The Hills Shire Council [2023] NSWLEC 24 is one such example. The applicant’s solution was that, on the granting of consent to the inconsistent development application, the consent authority can impose a condition requiring the modification or surrender of the concept consent. Both the Council and the Court accepted this as a “…proper basis by which the Council's jurisdictional concerns are able to be resolved.” The Minister in his Second Reading speech commented on how, “…by using the mechanism established in section 4.17 (1) (b) and (5) of the EP&A Act. The decision resulted in a positive planning outcome enabling an increase in housing supply.”

The Bill 2025 seeks to codify this solution by inserting a new section in s4.24(4) of the EP&A Act which will provide that s4.24(2) does not prevent the determination of a further inconsistent development application if the consent authority grants consent subject to a condition requiring the modification or surrender of the concept.

This is another pragmatic amendment which we expect will ensure that the jurisdictional issue raised in Castle Hill will no longer require unnecessary legal argument, and ensure that a concept consents will not lock development over a site.

Objections out of time

In our article Objections to DAs out of time, we discussed the finding of the Court of Appeal in Filetron Pty Ltd v Innovate Partners Pty Ltd atf Banton Family Trust 2 and Goulburn Mulwaree Council [2024] NSWCA 41 with respect to the obligations to notify a development application and take into consideration submissions received.

What Filetron did not consider, and what the Second Reading speech states as the reason for the amendment being, is “… that incorrect counting of a late submission may lead to the wrong consent authority being appointed. Without an amendment to the EP&A Act to clearly define when a submission should be counted, it is possible that inadvertent errors will be made, and further court challenges will follow—further adding uncertainty and potential delays to the delivery of housing projects.”

While this was not an issue in Filetron, we can see how the Minister may have come to this conclusion. If a council officer was of the view that late submissions were to be considered as submissions, then this may cause a development application to be assessed not by a council planning officer in the ordinary course but a planning panel, if the requisite number of unique submissions was reached but out of time. This may result in delayed assessment of a development application.

The Bill 2025 proposes an amendment to Schedule 1 cl.15 of the EP&A Act to insert two further sections which will definitively state that a submission received outside of the prescribed time is not a submission for the purposes of the Act, but that does not prevent a consent authority from considering a late submission.

In our view this is not an unreasonable amendment to make, to ensure that development applications are determined within a reasonable time and by the correct consent authority.

Final thoughts

We will need wait for the Bill 2025 to be passed by both houses of Parliament before we will know if the proposed amendments will be made law with or without changes. We understand it is to be read again 18 March, following which we will provide an update if there are any changes to the Bill 2025.

We would expect that the amendment to s4.55 and 4.56 to permit a modification with a physical change to be made, and to s4.24 to codify the ability to approve applications inconsistent with concepts, to be made; they are the most pragmatic amendments in the pursuit of certainty for the construction industry in the delivery of housing.

Whether or not the amendment to community participation requirements is made we do not consider as critical; it is primarily an administrative issue although it may make the assessment process more streamlined. The one amendment we would not recommend being made is to s4.55 and 4.56 to introduce "no or"and "same or" as part of the consideration of modification applications as it will likely result in the uncertainty which the Bill 2025 was introduced to overcome.

If you have any questions about the above, or about government, planning and development in NSW generally, please do not hesitate to contact us.