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State Significant Development

Modifications

Seeking approval for modifications to an approved project

Under Section 4.55 or Section 4.56 of the Environmental Planning & Assessment Act 1979 (EP&A Act), an applicant may seek approval for modifications to 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 process for seeking modifications will vary depending on the scale and nature of the proposed modifications, and any statutory requirements.

Click below for a summary of the statutory requirements for modifications to approved SSD projects or a summary of the process.

Early Consultation

Prior to lodging a modification application (MA), the applicant must consult with the Department.

The purpose of this consultation is to clarify the assessment process, identify what information must be included in the Modification Report, and determine what (if any) community engagement must be undertaken during the preparation of the Modification Report.

Following consultation, the Department may issue environmental assessment requirements for the Modification Report. However, this is only likely to occur for reasonably complex modifications.

Prepare Modification Report

The applicant must prepare the Modification Report in accordance with any requirements issued by the Department.

The purpose of the Modification Report is to assess the economic, environmental and social impacts of the proposed modifications and to help the community, government agencies and the consent authority make informed submissions or decisions on the merits of the modifications.

The scope of the Modification Report will vary depending on the scale and nature of the modifications, and whether further community engagement is required.

The Modification Report should:

  • include a short description of the approved SSD project and the reasons why the modifications are required
  • describe the proposed modifications
  • explain the relevant strategic and statutory context
  • describe the findings of any community engagement
  • assess the relevant impacts of the modifications
  • evaluate the merits of the modification.

The Modification Report must be easy to understand, rigorous and as succinct as possible.

Once complete, the applicant must lodge the MA and Modification Report online.

The Department will check the MA and Modification Report before publishing it online.

Exhibit Modification Report

Under the EP&A Act, the Department is only required to exhibit MAs with greater than minimal environmental impact or that are seeking to modify a consent that was granted by the Land & Environment Court.

However, the Department has the discretion to exhibit other MAs.

When the Department decides whether to exhibit a MA, it will consider several factors, including:

  • the relevant statutory requirements
  • the scale and nature of the proposed modifications
  • the likely impacts of the modifications
  • the likely level of community interest in the modifications.

If the Department decides to exhibit the MA, the exhibition period will generally be for 14 days but this could be extended to up to 28 days for more complex modifications.

For exhibition, the Department will:

  • publish the MA and Modification Report online
  • make copies of the Modification Report available at the local council’s offices and Service NSW centres
  • notify and advertise the public exhibition in accordance with the requirements in the EP&A Act.

During the exhibition period, anyone can make a written submission on the MA.

People may also subscribe for updates on the progress of the MA.

Respond to Submissions

If the MA is exhibited, the Department will publish all submissions online and ask the applicant to prepare a Submissions Report.

The purpose of the Submissions Report is to give the applicant an opportunity to respond to the issues raised in submissions and to help the consent authority to evaluate the merits of the MA.

Once complete, the applicant must lodge the Submissions Report online.

Assess Modification Application

After publishing the Submissions Report, the Department will complete its assessment of the merits of the proposed modifications in accordance with Government legislation, policies and guidelines and prepare an Assessment Report.

While the scope of this assessment will vary depending on the scale and nature of the proposed modifications, the activities involved are likely to be similar to those involved in assessing a DA.

Once complete, the Department will ask the consent authority to determine the application.

Determine Modification Application

The Independent Planning Commission is the consent authority for MAs if:

  • the local council has objected to the proposed modifications
  • at least 25 or more submitters have objected to the proposed modifications
  • the applicant has made a reportable political donation.

Click here for more information on the Commission’s policies and procedures when it determines a MA.

The Minister for Planning (or delegate) is the consent authority for all other MAs.

Consent authorities must evaluate the merits of the MA against the matters in Section 4.15 of the EP&A Act as well as the reasons for granting the original consent. The consent may approve the MA subject to conditions or refuse it.

After the determination of the MA, the Department will:

  • publish the decision online
  • notify applicant and everyone who made a submission of the decision
  • give public notice of the decision and how community views were taken into account in making the decision.

Reviews & Appeals

Under the EP&A Act, decisions on SSD MAs are subject to review and appeal rights.

Anyone may seek a judicial review of the decisions on an MA 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 MA within 6 months of the public notice of the determination
  • seek a review of the merits of the decision on a MA if it was determined under delegation by Departmental staff (excluding the Planning Secretary).

These appeals and reviews involve remaking the original decision.

Finally, an applicant may appeal to the Land and Environment Court against the deemed refusal of a consent authority to determine a MA within 40 days of the lodgement of the MA. Notwithstanding this appeal, the consent authority may still determine the MA.