Since changes made to the Environmental Planning and Assessment Regulation 2000 on 1 July 2020, development applications and modification applications have not been required to be accompanied by written owner’s consent.
Where an application was made by someone other than the owner of the land, consent from the land owner still needed to be provided. However, as a result of the changes on 1 July 2020 no document was required to be uploaded to the NSW Planning Portal which provided evidence of this consent. Instead, an applicant was required to make a “declaration” confirming that owner’s consent had been obtained to submit the application.
Over the past two years this created problems for a number of councils where, in the absence of proof, there has been no certainty as to whether owner’s consent has in fact been obtained by an applicant before lodgement of an application.
On 1 March 2022, the Environmental Planning and Assessment Regulation 2000 was repealed and replaced by the Environmental Planning and Assessment Regulation 2021, and the amended wording was carried over.
Recently, this change was reversed as a result of amendments made to the Environmental Planning and Assessment Regulation 2021.
On 25 November 2022, the Environmental Planning and Assessment Amendment (Miscellaneous) Regulation (No 2) 2022 came into force, the objects of which included “to require the written consent of the owner of land if a development application is made by a person other than the owner, …”
The Environmental Planning and Assessment Amendment (Miscellaneous) Regulation (No 2) 2022 resulted in the word “written” being inserted into section 23(1) of the Environmental Planning and Assessment Regulation 2021 so that it now reads as follows (with emphasis added):
“23 Persons who may make development applications
(1) A development application may be made by—
(a) the owner of the land to which the development application relates, or
(b) another person, with the written consent of the owner of the land.”
The changes make clear that development applications must be accompanied by written consent from the owner of the land to which the application relates. Where written consent is not provided, councils are able to reject development applications (within 14 days of lodgement) on the basis that it has not been accompanied by written owner’s consent.
However, this change has not been extended to modification applications. In that regard, the wording of section 98 of the Environmental Planning and Assessment Regulation 2021 merely requires that the application be made “with the consent of the owner of the land” and does not stipulate that proof of that consent is required to be provided in writing.
Consequently, it seems that where an applicant states that a modification application has been made with the consent of the owner, councils are still unable to reject modification applications (within 14 days of lodgement) on the basis that it has not been accompanied by written owner’s consent. Notwithstanding that a modification application cannot be rejected on this basis, in our view it remains open to councils to request evidence of owner’s consent having been granted in cases where it may be in doubt.
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.
