Updates to NSW Planning Act – modifying consents, supporting the delivery of housing and consolidating strategic planning direction

Co-authored by Jake Meyers, Solicitor

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Updates to NSW Planning Act – modifying consents, supporting the delivery of housing and consolidating strategic planning direction

Updates to NSW Planning Act – modifying consents, supporting the delivery of housing and consolidating strategic planning direction

Co-authored by Jake Meyers, Solicitor

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June 2, 2025

On 10 March 2025, we outlined the proposed amendments to the Environmental Planning and Assessment Act 1979 (EPA Act)) - see our prior publication. Since then, the Environmental Planning and Assessment Amendment Bill 2025 (Amendment Act) has been passed; it passed on 7 May 2025, and was assented to on 22 May 2025.

The Amendment Act implements the changes we previously outlined.

We set out a summary of the changes below.

Key points

The Amendment Act seeks to give effect to the NSW Government’s desire to improve the efficiency of the planning system.

The key changes are:

Development consents can be modified even if no change to the development is proposed.
Housing affordability conditions can be imposed provided any environmental planning instrument (not just a local environmental plan) enables the condition to be imposed.
Development consents which are inconsistent with a concept development consent can be granted.
The Minister can:

a. declare residential accommodation to be State Significant Development (SSD) without first obtaining advice from the Independent Planning Commission,
a. determine SSD applications within a shorter timeframe, and
b. make, amend and revoke district and regional strategic plans.

Why was the EPA Act recently amended?

In his second reading speech to the Legislative Assembly, the Hon. Paul Scully MP, Minister for Planning and Public Spaces (the Minister) stated that the Bill introduces amendments to:

respond to decisions from three separate challenges in the New South Wales courts to restore certainty in planning assessment decisions.
further streamline the planning system, [to] support the delivery of housing and provide certainty.
[provide] more cohesive strategic planning framework for the State.

Below we explore the amendments further.

Legislative Response to Court Decisions

A key aspect of the amendments is a legislative response to recent Court decisions.

Modification of Development Consents

In direct response to the Land and Environment Court’s decision in Ku-ring-gai Council v Buyozo Pty Ltd [2021] NSWCA 177, the Amendment Act introduces new provisions which make clear that a consent authority can approve a modification even if it does not result in a change to the approved development.

In Buyozo, the Court found that development consent conditions cannot be modified unless they effect a change to the development itself – see our previous publication for further discussion.

The legislative changes are set out below:

Prior wording	Amended wording (amendments in bold)
S4.55(1A) A consent authority may…modify the consent if- (a) it is satisfied that the proposed modification is of minimal environmental impact, and … (2) A consent authority may… modify the consent if- (a) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all)…	S4.55(1A) A consent authority may…modify the consent if- (b) it is satisfied that the proposed modification is of no or minimal environmental impact, and … (2) A consent authority may… modify the consent if- (b) it is satisfied that the development to which the consent as modified relates is the same or substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all)…
	(5) To avoid doubt, a consent authority is not prevented from modifying a consent under subsection (1A) or (2) merely because the modification only modifies a condition of consent and would not result in a change to the development the subject of the consent.
S4.56(1)(a) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all), and	S4.56(1)(a) it is satisfied that the development to which the consent as modified relates is the same or substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all), and
	S4.56(1B) To avoid doubt, a consent authority is not prevented from modifying a consent under this section merely because the modification only modifies a condition of consent and would not result in a change to the development the subject of the consent.

Housing Affordability Conditions

In Hanave Pty Ltd v Waverley Council [2025] NSWLEC 19, the Court found that a consent authority cannot impose a housing affordability condition (under s7.32 of the EP&A Act) without an authorising provision in a local environment plan - see our prior publication discussing the case.

Section 7.32 has now been amended to make clear that an affordable housing contribution condition can be imposed in accordance with any environmental planning instrument (not just a local environmental plan).


Prior wording	Amended wording (amendments emboldened)
s7.32(3)(b) the condition is authorised to be imposed by a local plan, and is in accordance with a scheme for dedications or contributions set out in or adopted by such a plan…	s7.32(3)(b) the condition is authorised to be imposed by an environmental planning instrument, and is in accordance with a scheme for dedications or contributions set out in or adopted by such an instrument

Consents which are inconsistent with concept consents

Unlike the other responses to the Court, the changes to s4.24 solidify the Court’s solution to inconsistency with concept consents. In Castle Hill Panorama Pty Ltd v The Hills Shire Council [2023] NSWLEC 24, the Court recognised the modification or surrender of an inconsistent concept consent as a “…proper basis by which the Council's jurisdictional concerns are able to be resolved.”

Section 4.24 has been amended to entrench this approach. It stipulates that a further development application can be determined even if it is inconsistent with its concept consent, provided a condition requires the surrender or modification of the concept consent.


Prior wording	Amended wording (amendments emboldened)
(2) 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.	(2) 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 concept consent).
	(4) Subsection (2) does not prevent the determination of a further development application for the site that is inconsistent with the concept consent if the consent authority determines the application by granting development consent subject to a condition requiring the modification or surrender of the concept consent.

State Significant Development

The Amendment Act contains two key provisions which streamline the process for the Minister to declare projects as SSD.

First, amendments to section 4.36 remove the need for the Minister to obtain advice from the Independent Planning Commission before declaring residential development as SSD.
Second, the Planning Secretary can specify a shorter exhibition period for residential SSD or SSD specified in Schedule 1 of the State Environmental Planning Policy (Planning Systems) 2021. The specified timeframe must be at least 14 days, which is half the time period of the usual exhibition period.


Prior wording	Amended wording (amendments emboldened)
4.36(3) The Minister may, by a Ministerial planning order, declare specified development on specified land to be State significant development, but only if the Minister has obtained and made publicly available advice from the Independent Planning Commission about the State or regional planning significance of the development.	4.36(3) The Minister may, by a Ministerial planning order, declare specified development on specified land to be State significant development. (3A) The Minister may make a declaration under subsection (3) only if the Minister has obtained and made publicly available advice from the Independent Planning Commission about the State or regional planning significance of the development. (3B) Subsection (3A) does not apply if the development includes residential accommodation. (3C) If the Minister makes a declaration under subsection (3), the Planning Secretary must, as soon as practicable, notify the council for the area in which the specified land is located that the declaration has been made.
Sch 1, clause 9: Minimum public exhibition period for an application for development consent for State significant development 28 days.	Sch 1, clause 9: 1) Minimum public exhibition period for an application for development consent for State significant development- (a) 28 days, or (b) for a relevant SSD application- (i) 28 days, or (ii) if a relevant community participation plan prepared by the Planning Secretary specifies a period of public exhibition for the application-the period specified in the plan. (2) For subclause (1)(b)(ii), the period specified in the plan must be at least 14 days. (3) In this clause- relevant SSD application means- (a)an application for development consent for development declared to be State significant development under section 4.36(3) and that includes residential accommodation, or (b)an application for development consent for State significant development that includes development specified in State Environmental Planning Policy (Planning Systems) 2021, Schedule 1, section 26, 26A, 27 or 28 or Schedule 2, section 19.

District and Regional Strategic Plans

The Amendment Act also seeks to provide consistent and consolidated planning direction through district and regional strategic plans. Key amendments, as set out in the passed version of the Amendment Act, are:

The Minister may make a strategic plan based on the draft or with modifications as the Minister sees fit, or otherwise decide to not make the draft strategic plan.
The planning proposal authorities must give effect to district strategic plans and any regional strategic plan if there is no district strategic plan.
References to the Six Cities Region are deleted and replaced by references to strategic plans.
Local strategic planning statements must be consistent with strategic plans.
Clarifying the Minister may determine, amend, or revoke a strategic plan.

However, these changes have not yet “commenced” although they appear to have been “passed”.

Should you wish to discuss the implications of these amendments, please contact our team.