The State Government has proposed a bill to amend the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act) which has the potential to fix one of the more notable gaps in the planning system.
The Environmental Planning and Assessment Amendment Bill 2025 (NSW) (Amendment Bill) proposes several amendments, including those which would widen the scope of the EP&A Act’s modification powers to include modification applications where no physical change to the development is proposed. This is a welcome change following the decision of the Court of Appeal’s in Ku-ring-gai Council v Buyozo Pty Ltd [2021] NSWCA 177 (Buyozo).
The Amendment Bill also proposes amendments to a diverse range of other areas of the planning system.
Buyozo
The Buyozo decision raised significant interest among practitioners, developers, and consent authorities when it was published in August 2021 because it overturned two long-standing planning practices. Firstly, the Court held that development which had already been carried out could not be approved under the EP&A Act’s modification powers (per Preston CJ of LEC at [40]). Secondly, the Court held that the EP&A Act’s modification powers (with the exception of the power under section 4.55(1) to modify development consents to correct minor errors, misdescriptions, or miscalculations) require that there must be ‘some change to the development the subject of the development consent’ (per Preston CJ of LEC at [56]).
The effect of Buyozo was that modification applications could no longer be used as an avenue to modify conditions of consent which, if approved, would not change the underlying development which was the subject of the original development consent. For example, as was the proposal in the Buyozo case, there was no power to modify a development consent merely to reduce the development contributions payable, because the modification of a development contributions condition does not effect a change to the actual development.
This gap in the modification powers limits the types of changes to a development consent which can be sought, and has created uncertainty for developers and consent authorities in determining what relevantly constitutes a ‘change to the development’. For example, there was some ambiguity as to whether the proposed modification must result in a physical change to the development.
The Amendment Bill, if passed, is likely to bring an end to these issues. In summary, it:
- adds new sub-sections in sections 4.55 and 4.56 of the EP&A Act which expressly permit a consent authority to modify a development consent under sections 4.55(1A), 4.55(2), or 4.56 where the proposed modification modifies a condition of consent and would not otherwise result in a change to the development the subject of the consent;
- amends the test in those sections from ‘substantially the same’ to ‘the same or substantially the same’ to make it clear that the modification powers extend to changes which may result in a development that is ‘the same’; and
- amends the ‘minimal environmental impact’ test in section 4.55(1A) to read as ‘no or minimal environmental impact’.
Other proposed amendments under the Amendment Bill
The Amendment Bill also seeks to better streamline processes relating to residential accommodation in a further effort to boost housing stock by:
- excluding the State’s new Housing Delivery Authority (HDA) from some of the procedural requirements which apply to planning bodies under Schedule 2 to the EP&A Act; and
- do away altogether with the requirement for the Minister to obtain and publish advice from the Independent Planning Commission (IPC) before declaring State significant development where the development includes residential accommodation. This change does not necessarily change the current state of play given that the IPC has already delegated that function in respect of residential developments to the HDA.
In addition, the Amendment Bill proposes:
- to enable the Minister to declare housing targets for a region or a local government area, and the period within which the target must be achieved;
- removing the requirement for development applications to be consistent with existing concept development consents if the determination of that development application requires the modification or surrender of the concept development consent;
- to ensure that the requirements for development contributions for affordable housing apply to any development application to carry out development in an area in which a state environmental planning policy has identified a need for affordable housing; and
- reducing minimum public exhibition periods for certain housing-based State significant development to 14 days (down from the usual 28 days).
The Amendment Bill also makes consequential administrative amendments to the Environmental Planning and Assessment Regulation 2021 (NSW) and the Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017 (NSW), which arise out of the proposed amendments to the EP&A Act.
Key takeaway
If passed, the Amendment Bill will broaden the scope of the modification powers under the EP&A Act so as to facilitate amendments which do not necessarily change physical aspects of the development. This change will address a gap in the EP&A Act’s modification powers as identified in Buyozo.
The amendments also show an ongoing commitment by the State Government to the efficient delivery of much-needed housing stock in New South Wales.
