A Bill to amend the Environmental Planning and Assessment Act 1979 has passed through both houses of NSW Parliament, ushering in a number of important changes in the NSW planning space.

The headline amendment in the Bill is the resolution of an issue that arose out of the decision Ku-ring-gai Council v Buyozo Pty Ltd [2021] NSWCA 177. That decision had the effect of requiring that any modification application must involve a change to the actual development the subject of the relevant consent, not just a change to a condition. New s 4.55(5) removes that limitation:

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.

Equivalent language has also been introduced in s 4.56(1B) in respect of the modification of Court-granted development consents.

The Bill also includes a planning pathway that arose in Castle Hill Panorama Pty Ltd v The Hills Shire Council [2023] NSWLEC 24. That case identified a process by which a development application for works which would be inconsistent with an existing concept approval for the same site could still be approved, despite the restriction on such inconsistencies in s 4.24(2). That process involves the imposition of a consent condition for any such development requiring the amendment or surrender of the relevant concept approval so as to remedy the inconsistency.

New s 4.24(4) confirms the availability of this option:

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.

This is of particular utility to developers of land affected by older concept approvals – especially in the context of significant planning scheme changes over recent years which can have a material bearing on a developer’s options and objectives.

The Bill also introduces changes to:

• State Significant Development exhibition periods, which will now be able to be shortened to 14 days instead of 28 days in certain circumstances;
• public submissions made after the end of an exhibition period, which will now explicitly not be considered submissions for the purposes of the EP&A Act, the EP&A Regulations or an environmental planning instrument;
• meeting requirements for the Housing Delivery Authority, which will be able to be less formal in certain respects; and
• open up the ability of Councils to impose conditions of consent requiring the making of contributions for the purpose of providing affordable housing (s 7.32(1)).

The Bill completed its passage through Parliament on 7 May and is currently awaiting assent. The Bill as passed can be accessed here.

Beatty Hughes & Associates are experts in environmental and planning law in NSW. If you would like to discuss the above changes, or another environmental or planning law matter, please feel free to get in touch.

By Timothy Allen