13 August 2021

Just when you thought you understood the law around modifying a development consent

The NSW Court of Appeal has been busy lately addressing matters relating to the modification of a development consent in NSW which the development world had no idea were issues.  In AQC Dartbrook Management Pty Ltd v Minister for Planning and Public Spaces [2021] NSWCA 112 the Court held that once an application has been made seeking to modify a development consent it is impossible to amend the application before it is determined, even where the changes are agreed by the applicant and the consent authority.  Within 2 weeks of the judgement, the Planning Minister amended the EPA Regulation to expressly allow for a pending modification application to be amended.  Today the Court of Appeal delivered judgement in Ku-ring-gai Council v Buyozo [2021] NSWCA 177 in which it held that the power to modify a development consent only arises where the proposed modification changes the development itself.  If the only modification sought is a change to the conditions of the consent, the power to modify is limited to the power to correct a minor error, misdescription or miscalculation.   It remains to be seen whether the Planning Minister takes steps to reverse that position.  It is unlikely to be so easily achieved this time as it seems likely to require a change to the EPA Act itself and therefore a decision of Parliament, rather than a step the Minister can take alone.

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