A new Bill will, if passed, expand the statutory power to modify development consents and continue to accelerate housing approvals via the Housing Delivery Authority.
On 19 February 2025, the NSW Minister for Planning and Public Spaces introduced the Environmental Planning and Assessment Amendment Bill 2025 (NSW) (Bill) to “make miscellaneous amendments” to the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act). This article outlines the key reforms contained in the Bill.
Expanded Modification Powers
The power to modify a development consent under the EP&A Act is limited. Around four years ago, the Court of Appeal delivered judgement in Ku-ring-gai Council v Buyozo [2021] NSWCA 177 (Buyozo) in which it held that the power to modify a development consent only arises where the proposed modification changes the development itself (see our article here). This decision was inconsistent with the previous approach of consent authorities and has led to what the Minister describes as a “proliferation” of applicants "bundling" otherwise unnecessary physical changes into applications to ensure the modification can lawfully be granted.
The Bill proposes to override the decision in Buyozo and expand the statutory power to modify development consents by:
- expressly allowing modification of a development consent under sections 4.55(1A) or (2) where the modification only changes a condition of consent and does not change the development itself (currently, this is only allowed if the modification is to correct a minor error, misdescription or miscalculation);
- clarifying that a “minimal environmental impact” modification under section 4.55(1A) is available where the consent authority is satisfied that the proposed modification is of “no or minimal environmental impact” (emphasis added) rather than just where the proposed modification is of “minimal environmental impact”;
- clarifying that the “substantially the same development” test for a modification under sections 4.55(1A) and (2) may be satisfied where the development is actually “the same” (not just “substantially the same”).
The effect of these changes would be to allow proponents and consent authorities to progress modifications to delete or amend conditions which turn out to be impractical, unworkable, undesirable or out of date, without any other associated change to the approved project. This could include a modification to change a condition relating to the proposed timing, staging or sequencing of development, for example, to remove or defer a requirement that something be done “prior to the commencement of construction” where that requirement is unnecessarily holding up commencement.
Housing reforms
Further refinements are proposed to facilitate the work of the new Housing Delivery Authority (HDA) in assessing and approving State significant housing developments. The Bill proposes to:
- reduce the minimum public exhibition period for State significant development relating to housing to 14 days (down from 28 days), including for HDA and transport oriented development (TOD) projects;
- enable the Minister to declare development including residential accommodation to be State significant development without obtaining advice from the Independent Planning Commission; and
- facilitate ‘less formal meeting arrangements’ for the HDA by exempting the HDA from the requirements to conduct its meetings in public, record and publicly release the audio of its meetings, and to record certain circulating resolutions in the minutes of its meetings. This appears to reflect the HDA's current operating procedures.
The Bill also includes a new power for the Minister to declare time-based housing targets .
Other Amendments
Other “miscellaneous” amendments include:
- a new provision to clarify that, in determining who is to be the consent authority for State significant development applications as between the Independent Planning Commission or the Minister, only submissions received during the exhibition period will be taken into account, in response to the decision in Filetron Pty Ltd v Innovate Partners Pty Ltd atf Banton Family Trust 2 and Goulburn Mulwaree Council [2024] NSWCA 41;
- in relation to concept development applications, a new clarification that a development consent may be granted that is inconsistent with the concept development consent if the consent authority, in determining the application, requires the modification or surrender of the concept consent, based on the decision in Castle Hill Panorama Pty Ltd v The Hills Shire Council [2023] NSWLEC 24; and
- removal of outdated references to the Six Cities Region and consequential amendments.
What’s next?
The two major political parties started this year embracing the potential for a bipartisan approach to planning reforms. This is the first real test. If passed, the Bill will bring about some modest but pragmatic changes.
Could more substantial reform be on the cards? Apparently yes. The Minister says: “This bill is not the end of the planning reform journey started by the Minns Labor Government.”
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