Those who have been involved in NSW Land and Environment Court appeals since the introduction of the NSW Planning Portal will be familiar with the frustrations experienced in uploading documents to the Portal when an Applicant wishes to amend a development application or a modification application.
The power to amend or vary a development application before the application was determined was previously found in clause 55(1) of the Environmental Planning and Assessment Regulation 2000 (“the 2000 Regulation”), and the power to amend or vary a modification application before the application was determined was previously found in clause 121B(1) of the 2000 Regulation. Clauses 55(1) and 121B(1) of the 2000 Regulation relevantly stated:
“55 What is the procedure for amending a development application?
(1) A development application may be amended or varied by the applicant (but only with the agreement of the consent authority) at any time before the application is determined, by lodging the amendment or variation on the NSW planning portal.
121B Amendments of modification application – the Act, s 4.64(1)(q)
(1) In application for modification of a development consent may, with the agreement of the consent authority, be amended by the applicant at any time before the application is determined by lodging an amendment on the NSW planning portal.”
Clauses 55 (1) and 121B (1) of the 2000 Regulation made clear that in order to amend a development application or modification application, the amendment must be lodged on the NSW Planning Portal.
On 1 March 2022, The Environmental Planning and Assessment Regulation 2021 (“the 2021 Regulation”) came into force.
The 2021 Regulation removed the need for amendments to development applications the subject of Court proceedings to be made on the Portal. However, at the time the 2021 Regulation commenced, the requirement remained for amendments to modification applications the subject of Court proceedings to be made on the Portal.
As of 13 April 2022, an amendment to the 2021 Regulation removed the need for all modification applications subject to Court proceedings to be made on the Portal.
This means that the documentation relating to development and modification applications before the NSW Land and Environment Court is now only required to be lodged with the Court.
The power to amend or vary a development application before the application is determined can be found in section 37 of the 2021 Regulation. The power to amend or vary a modification application before the application is determined can found in section 113 of the 2021 Regulation. Sections 37 and 113 of the 2021 Regulation relevantly state:
“37 Amendment of development application
(1) An applicant may, at any time before a development application is determined, apply to the consent authority for an amendment to the development application
(2) The application must be made on the NSW planning portal.
…
(7) A requirement to use the NSW planning portal under this section does not apply if the development application is subject to proceedings in the Court.
113 Amendment of modification application
(1) An applicant may, at any time before a modification application is determined, apply to the consent authority for an amendment to the modification application.
(2) The application must be made on the NSW planning portal.
…
(6) A requirement to use the NSW planning portal under this section does not apply if the modification application is subject to proceedings in the Court.”
Schedule 6 of the 2021 Regulation contains the following savings provision:
“3 Applications submitted before 1 March 2022
The 2000 Regulation continues to apply instead of this Regulation to the following applications submitted but not finally determined before 1 March 2022—
(a) a development application,
(b) an application for a complying development certificate,
(c) a modification application,
(d) an application to modify a complying development.”
As a result of the savings provision contained in Schedule 6 of the 2021 Regulation, the 2000 Regulation (and the requirement to lodge amended plans on the Portal in Court proceedings) will continue to apply to development applications or modification applications lodged before 1 March 2022 that are the subject of Court appeals.
The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.
