Modifying a development consent in NSW: choosing the correct pathway

A modification changes an existing development consent through a defined statutory pathway. Each pathway has a gateway: statutory requirements that must be met before the change can be approved. A modest change does not avoid the gateway. The applicant must identify the correct power and provide enough material for the decision-maker to assess the development as modified. For a shorter overview, including conditions and review options, see modifying development consents in NSW.

The original consent determines the forum

Section 98 of the Environmental Planning and Assessment Regulation 2021 (the EP&A Regulation) generally permits the landowner, or another person with the owner’s consent, to make a modification application, subject to stated exceptions. Section 100 specifies the information and documents that must accompany a modification application, subject to the exceptions in that provision.

The destination depends on the original consent:

• applications under section 4.55 of the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act) ordinarily go to the consent authority;
• for a consent granted by the Court, section 4.56 permits the consent authority to determine a modification; and
• section 4.55(8) also extends the modification provisions so the Court can modify a consent it granted, subject to the Regulation.

Section 98(7) of the Regulation is mandatory: “A development consent may not be modified by the Court under the Act, section 4.55 if a modification application has been made to the consent authority under the Act, section 4.56 and has not been withdrawn.” The correct forum should be resolved before lodgement.

Each pathway has a distinct gateway

Section 4.55(1): correction or no environmental impact

Under the current provision, a consent authority may modify a consent “to correct a minor error, misdescription or miscalculation” or “if satisfied the proposed modification has no environmental impact”. Each is a distinct limb. The correction limb must genuinely answer that statutory description; it cannot be used simply to shorten the process for a design change with planning consequences.

Section 4.55A and section 118A of the Regulation prescribe 14 days after lodgement for determination. After that period, section 4.55A(3) says the authority “must, as soon as practicable, determine” the application and “must not refuse” it.

If the authority imposes a condition, section 4.55A(5) says the condition “must relate only to the modification application” and “must not defeat the purpose of the modification application”. There is an express exception in section 4.55A(6): the authority must refuse a proposed modification to a housing and productivity contribution condition unless the Minister has approved it under section 7.28(6). Expiry is not deemed approval.

Section 4.55(1A): minimal environmental impact

The consent authority must be satisfied that “the proposed modification has minimal environmental impact” and that the development as modified is the same or substantially the same development as the development originally approved. Relevant notification, consultation and concurrence requirements must also be satisfied. For applications lodged from 21 March 2026, the “no environmental impact” limb appears in section 4.55(1) rather than here.

Section 4.55(2): other modifications

Section 4.55(2) requires no finding of nil or minimal environmental impact. The authority must be satisfied that the development as modified is the same or substantially the same development as the development originally approved, and the notification and submission requirements in section 4.55(2) must be met.

In deciding an application under subsection (1A) or (2), section 4.55(3) requires the authority to consider the matters in section 4.15(1) and the reasons given for the original consent, in each case only so far as they are relevant. For a consent for targeted assessment development, section 4.55(3A) applies section 4.15(1C), which confines those matters to the ones in section 4.15(1)(a) and (d).

Section 4.56: a consent granted by the Court

The consent authority can modify a Court-granted consent if the section 4.56 requirements are met. The same-or-substantially-the-same gateway, notification and consideration requirements remain central. The authority must notify, or make reasonable attempts to notify, each person who made a submission on the original development application and must consider submissions on the proposed modification: section 4.56(1)(c)–(d). After determining the application, it must send notice of the determination to each person who made a submission on the modification application: section 4.56(2).

Applications lodged before the reforms commenced

The present categories commenced on 21 March 2026. Under Schedule 6, section 34A of the Regulation, a modification application lodged, but not finally determined, before that date must be determined as if those amendments had not commenced.

Other savings in Schedule 6, Part 15 also turn on the lodgement date. The amendments of 15 December 2025, under which section 4.15(1)(b) now refers to a development’s “significant likely impacts”, do not apply to an application lodged, but not finally determined, before they commenced: section 34(2). That saving “ceases to have effect 12 months after” their commencement: section 34(3). An older application still undetermined at that point will generally be assessed under the new wording. Separate savings cover the concurrence and referral changes of 1 July 2026, including the repeal of section 4.55(2)(b) (section 46), and the notification changes of 1 September 2026, under which sections 4.55 and 4.56 refer to the council’s community participation plan instead of a development control plan (section 34(5A)).

Establish the lodgement date before choosing or describing the pathway.

“Same or substantially the same” compares the two developments

The comparison is fact-specific. A percentage change in floor area or a count of amended drawings is evidence for it, not the test itself. Whether the changed development’s impacts are acceptable is a separate question, considered on the merits once the gateway is passed.

The NSW Court of Appeal authorities lead the analysis. In Feldkirchen Pty Ltd v Development Implementation Pty Ltd [2022] NSWCA 227, Preston CJ of the Land and Environment Court (LEC), with Macfarlan JA and Meagher JA agreeing, said at [112]:

“The comparison required by s 4.55(2)(a) is simply between two developments: the development as modified and the development as originally approved”.

At [112]–[113], the Court explained that aids suggested in earlier cases, such as comparing the “material and essential features” of the two developments or making a qualitative and quantitative assessment, do not displace the statutory test, and a decision-maker need not use their language. The appeal was dismissed because neither ground was established, including the alleged failure by the council to form the necessary opinion: [115]–[118].

The case concerns legal validity rather than a merits rehearing or a rule about any particular factual change. It construed the words “substantially the same development”. Section 4.55(2)(a) now reads “the same or substantially the same development”, but the comparison is still between the development as modified and the development as originally approved. The March 2026 changes altered other pathways, not this test.

In Etherington v North Sydney Council [2026] NSWCA 137, an appeal from Pain J’s disposition of an appeal under section 56A of the Land and Environment Court Act 1979 (NSW) (LEC Act), Preston CJ of LEC said at [73] (Leeming JA agreeing and giving supplementary reasons; Free JA agreeing with both judgments):

“upon satisfying such statutory requirements, the consent authority (or the Court on appeal) has a discretion as to how to exercise the power under s 4.55(2)”.

The Court granted leave on grounds alleging a duty to approve acceptable or unopposed modifications, but dismissed the appeal on those grounds: [81] and order 1. Only the challenge to the restrictive terms of the remitter succeeded. Whether a decision-maker may approve some, but not all, modifications in one application was left unresolved at [67]–[68] and assumed rather than decided at [88]. The decision confirms that a discretion exists once the statutory requirements are satisfied. It establishes neither a power to approve only part of an application nor any particular merits outcome.

The submission should provide a side-by-side schedule covering use, built form, footprint, height, access, intensity, hours, staging, environmental effects and the consent’s essential planning identity. Passing the gateway permits assessment to continue; it does not compel approval on the merits.

Condition-only changes do not cure retrospective non-compliance

Current section 4.55(5) and section 4.56(1B) make a condition-only modification available even where the development itself does not change. Those provisions do not decide whether a proposed retrospective condition can lawfully alter an obligation already performed, or provide safe retrospective approval for development carried out inconsistently with consent. The application should distinguish:

• changing the consent for future work or use;
• correcting the documentary description of an approval; and
• attempting to regularise completed unauthorised work.

Enforcement exposure and any separate building information certificate or approval pathway require distinct analysis. For the limits on conditions themselves, see Development consent conditions in NSW.

A complete record controls procedure and timing

A complete application should include:

1. the current consent consolidated through every earlier modification;
2. approved and proposed plans with an exact change schedule;
3. a section-specific gateway assessment;
4. an updated impact assessment proportionate to every change;
5. owner consent and prescribed documents;
6. referral, concurrence and notification analysis; and
7. proposed replacement condition wording.

For an amendment during assessment, section 113(5) of the Regulation says that, if the authority approves the amendment, the modification application is taken to have been lodged on the day the applicant applied for the amendment only if the authority “considers the amendment not to be minor” and “notifies the applicant, through the NSW planning portal, that the later day applies”. Record the amendment-application date, approval, non-minor assessment and portal notice; “acceptance” alone is not the statutory test.

For section 4.55(1A), section 4.55(2) and section 4.56, section 119(1) says that an authority is taken to have refused the application if it does not determine it “within 40 days after the modification application is lodged”.

Under sections 119(4) and 119(5), that period ceases to run between a request for additional information under section 104 and the earlier of the information being given or the applicant giving, or being taken to have given, notice that it will not be given. The pause applies only if the request is made “within 25 days after the day on which the modification application is lodged”.

A section 4.55(1) application has the separate 14-day no-refusal mechanism, and Part 8 of the Act, which contains the review and appeal provisions, does not apply to it: section 4.55(1AA). Other modification determinations and deemed refusals may be appealed under section 8.9.

For an actual determination of a modification application, section 8.10(1) says the appeal “must be made within 6 months after the date the determination is notified or registered on the NSW planning portal”. Many council and panel determinations can first be reviewed under Division 8.2. No appeal can be made while a review is under way (section 8.9A), and that time is not counted towards the six months (section 8.10(4)). A deemed-refusal appeal may be made at any time after the 40-day period ends and before the application is determined: section 8.10(2). See Deemed refusal in NSW: when appeal rights arise and, on the choice between review and appeal, Development application refusals in NSW.