Introduction
The New South Wales State Government has recently unveiled the Environmental Planning and Assessment Amendment Bill 2025 (Amendment Bill) which was introduced in the NSW Legislative Assembly on 19 February 2025 to amend the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act).
The purpose of the Amendment Bill is to streamline the planning process and increase housing supply, avoiding further ‘bottlenecking’ of the planning system, and remedying uncertainties caused by recent decisions of the Court of Appeal and the Land and Environment Court.
Modification applications
The Amendment Bill proposes to expand statutory expansion of the modification powers under the EPA Act.
Two new sections (s4.55(4) and s4.56(1A)) are to be inserted, to remedy the Court of Appeals decision in Ku-ring-gai Council v Buyozo Pty Ltd [2021] NSWCA 177 (Buyozo), which altered the long-held understanding that the modification powers under ss4.55(1A), (2) and s4.56(1) allowed developers to modify a consent, even mere conditions, without having to change a part of the development.
As a result of the amendment, developers will be able to apply to modify conditions of consent under ss4.55(1A), (2) or s4.56(1) without having to propose any change to the development for which the consent was granted. Currently this is only permitted where the modification is to correct a minor error, misdescription or miscalculation.
The Amendment Bill also seeks to clarify:
- what constitutes a ‘minimal environmental impact’ modification under s 4.55(1A) allowing developers to bypass a full environmental assessment where the proposed changes have negligible or no environmental impacts; and
- that the ‘substantially the same’ threshold test under ss 4.55(1A) and (2) may be satisfied if the proposed modifications result in the development being the same, rather than ‘substantially the same’.
The implementation of the changes proposed by the Amendment Bill will assist developers to amend or delete conditions which are impractical or outdated, provided that no other alterations to the development are proposed. This will result in faster approvals, greater flexibility during development and reduced costs.
Concept plan consent
Under the Amendment Bill, the position with respect to concept plan consents is set to be clarified under proposed s4.24(4) of the EPA Act, in response to the Land and Environment Court decision in Castle Hill Panorama Pty Ltd v The Hills Shire Council [2023] NSWLEC 24. This decision confirmed that a consent authority has the power to grant a development application which departs from the original concept consent by virtue of s4.17 (1) (b) and (5) of the EPA Act, which is currently not enshrined in the legislation.
Due to this amendment, developers will therefore no longer be prevented from obtaining the approval of a development application for a site that is inconsistent with a concept development consent under the proposed s4.24(2), subject to a modification or surrender of the existing concept consent by way of a condition of consent.
This is good news for developers who may be hamstrung by Lazarus concept consents which no longer align with current planning controls and will assist in increasing housing supply in NSW.
Miscellaneous amendments
The Amendment Bill proposes several other key amendments to the EPA Act including:
- Regional Housing Targets – the Amendment Bill establishes specific housing targets for regions to address housing shortages.
- Housing Delivery Authority – exemptions for the Housing Delivery Authority from certain requirements to provide for ‘less formal meeting arrangements’ under the Environmental Planning and Assessment Regulation 2021, including exemptions from publicly releasing meeting recordings.
- Affordable Housing – financial contributions for affordable housing can be imposed by condition of a development consent if a SEPP identifies a need for affordable housing in a specific area and the condition is authorised by an environmental planning instrument.
- State Significant Development – a reduction in the minimum public exhibition period for State significant development declared under the EPA Act related to residential housing from 28 days to 14 days and allows the Minister to declare residential development to be State significant development without advice from the Independent Planning Commission.
- Submissions – s15 of schedule 1 is proposed to be amended so that only submissions received during the public exhibition period will be counted for the purposes of identifying a consent authority. This will not prohibit late submissions from being considered, however it will remove any uncertainty with identifying who the consent authority is to determine an application in response to the decision of the Land and Environment Court in Filetron Pty Ltd v Innovate Partners Pty Ltd atf Banton Family Trust 2 and Goulburn Mulwaree Council [2024] NSWCA 41.
In terms of what’s next for the Amendment Bill? It appears it will be debated by NSW parliament during the March sittings.
This article was written by Jane Hewitt, Partner and Julia Henderson, Solicitor.
