Under Section 4.55 or Section 4.56 of the Environmental Planning & Assessment Act 1979 (EP&A Act), an applicant may seek approval to modify a State significant development (SSD) development consent at any time. These modifications may be necessary to improve the design of the project or to vary the conditions of consent.
The modification process will vary depending on the scale and nature of the proposed modifications, and any statutory requirements.
Modifications fall into one of the following three categories:
- modifications involving minor error, misdescription or miscalculation
- modifications involving minimal environmental impact
- other modifications involving greater than minimal environmental impact.
Prior to lodging a modification application, the applicant should consult with the department to identify the issues to be addressed and the need for any community engagement.
Prepare modification report
A modification application must be accompanied by a modification report which details the nature of the proposed modification. The applicant must have regard to the State Significant Development Guidelines - Preparing a Modification Report (Appendix E) when preparing the modification report.
Submit modification application
Once complete, the applicant must submit the modification application and modification report on the NSW planning portal.
If the modification application is not in the correct form or incomplete, the department may reject the application within 7 days after receiving it, with reasons provided in writing to the applicant.
Exhibit modification application
As soon as it is received, the department will publish the modification application and modification report on the NSW planning portal. The department is required to exhibit modification applications involving greater than minimal environmental impact as well as applications to modify a consent granted by the Court.
If the department exhibits the modification application, the exhibition period will generally be for a minimum of 14 days. This is to give the community an opportunity to read the modification report and make a submission on the merits of the modified project.
The department will notify and advertise the public exhibition in accordance with the requirements in the EP&A Act and Environmental Planning and Assessment Regulation 2021.
During the exhibition period, anyone can make a written submission on the modification application.
People may also subscribe for updates on progress of the modification application.
Respond to submissions
If the modification report is exhibited, the department will publish the submissions online and ask the applicant to prepare a submissions report to respond to the issues raised in submissions.
Amend a modification application
The applicant for an SSD modification may, with the approval of the consent authority, amend the modification application at any time before it is determined.
Assess modification application
The department will complete its assessment of the merits of the modifications in accordance with any relevant Government legislation, plans, policies and guidelines and consider the issues raised in submissions and the applicant's response to those issues (if the modification report is exhibited).
The department will summarise the findings of its detailed assessment of the modification application in a whole-of-government assessment report, which will include any recommended changes to the existing conditions of the SSD development consent.
Once complete, the department will publish its assessment report and ask the consent authority to determine the application.
Determine modification application
The Independent Planning Commission is the consent authority for modification applications if the applicant has made a reportable political donation. Click here for more information on the commission’s policies and procedures when it determines a modification application.
The Minister for Planning is the consent authority for all other modification applications. The Minister has delegated this function to senior officers of the department in certain circumstances.
In determining a modification application, the consent authority must evaluate the merits of the modified project as a whole and have regard to relevant matters including those in Section 4.15 of the EP&A Act. The consent authority may approve the modification application subject to conditions or refuse it.
After the determination, the department will:
- publish the decision online
- notify the applicant and everyone who made a submission (if the application was exhibited)
- give public notice of the decision and how community views were taken into account in making the decision.
Reviews and appeals
Under the EP&A Act, decisions on modification applications for SSD are subject to review and appeal rights.
Anyone may seek a judicial review of the decisions on a modification application within 3 months of the public notice of the determination. The proceedings will be heard by a judge of the Land and Environment Court and will consider the legality or validity, not the merits of the decision.
Applicants may also:
- appeal to the Land and Environment Court against the merits of the decision on a modification application within 6 months of the public notice of the determination
- seek a review of the merits of the decision on a modification application if it was determined under delegation by department staff (excluding the Planning Secretary).
Finally, an applicant may appeal to the Land and Environment Court if the consent authority does not determine the modification application within 40 days of the modification application being lodged. Notwithstanding this appeal, the consent authority may still determine the application.