Section 4.55 of the Environmental Planning and Assessment Act 1979 allows a landowner/developer to apply to Council to modify a development consent. The power to modify a consent has been described by the Council as beneficial and facultative, but not unconstrained. A recent NSW Court of Appeal decision [Ku-ring-gai Council v Buyozo Pty Ltd (2021) NSWCA 177], has caused some consternation in the development industry. Some industry feedback has been that the modification power is now significantly weakened and developers are no longer able to rely on it to make small adjustments to their projects.

While the decision was significant – it was not as dire as a first reading would suggest. As with much in litigation, the facts in this matter are crucial.

In essence, the developer had the benefit of a consent and one of the conditions required payment of the monetary contribution prior to issue of the first construction certificate (standard type of condition). The developer paid the contribution and the development proceeded to completion. At some later point, the developer determined that the calculation of the amount of the monetary contribution had been excessive and lodged a modification application to amend the terms of that specific condition (i.e. the amount). While a judge in the Land and Environment Court (LEC) determined that the modification power was available to so amend the condition, the NSW Court of Appeal disagreed. The current Chief Judge of the LEC was sitting as one of three appellate judges.

In essence the Court of Appeal said that the modification power was not available after a condition of consent had already been fully complied with. The modification of a condition had to apply to a prospective action i.e. the modification has to effect some change to the development the subject of the development consent. For example, a condition dealing with trading hours can be amended as it continues to have a future effect; or a building modified (before it is constructed). The Court of Appeal said once the money was paid, there was no further work for the condition to do and therefore there could be no modification available under modification powers under the EP&A Act.

The Court of Appeal did say other judicial remedies could have been employed to cure the miscalculation of the monetary contribution – just not the modification power.

If you want to discuss the issue further or have some other similar or other planning enquiry, contact our Property & Planning Team at SWS Lawyers and we will be able to assist.