Once an applicant obtains a development consent, they may wish to make changes to the development.
Sections 4.55 and 4.56 of the Environmental Planning and Assessment Act 1979 (EPA Act) provide mechanisms for applicants to make an application to modify a development consent.
An applicant can alternatively lodge a fresh development application for development on land where there is already an operational consent. There can be more than one valid consent operating at the same time.
This article explores some of the reasons why an applicant may choose to lodge a fresh development application rather than seek to modify an existing consent, factors for councils to consider in determining a fresh development application for land where an existing consent is already in place, and how inconsistencies between development consents can be resolved.
Why would an applicant lodge a fresh DA over a modification application?
A consent authority can only grant approval to modify a development consent if the modification application satisfies the prerequisites in section 4.55 of the EPA Act.
One of the prerequisites requires the consent authority to be satisfied that the proposed development as modified, will be substantially the same development as the development for which consent was originally granted. If a consent authority is not satisfied that an applicant's modification is substantially the same development, then it does not have power to modify the existing consent.
To avoid this possibility, an applicant may seek to change development under an existing development consent by lodging a fresh development application.
An applicant might also elect to lodge a fresh development application instead of a modification application if they want to have the option of keeping the existing consent, as the new development consent does not become operational until the development is physically commenced on the land. By contrast, if a modification application is approved, the determination modifies the existing consent immediately.
Factors for consent authorities to consider in drafting conditions
If a consent authority determines to grant consent to a fresh development application, or the Court upholds an appeal regarding the fresh development application, then the consent authority will need to draft conditions for land where existing conditions of consent apply.
In these circumstances, the consent authority should:
- check existing conditions of consent to ensure that, insofar as possible, there is no inconsistency with the existing development consent(s) applying to the land
- clearly specify all the plans and documents the applicant must comply with in carrying out the development, including any existing plans and documents that the applicant is already required to comply with under the earlier consent(s)
- consider the fresh development application for the same land on its own merits, as the latest consent does not take precedence over an earlier approval, unless the implementation of the existing consent is no longer a practical possibility.
How can consent authorities resolve inconsistencies with conditions?
If a consent authority determines to grant consent to a fresh development application, it may not be possible to prevent inconsistencies arising between the latest conditions of consent and an earlier approval in respect of the same land.
Given the obligation to comply with existing conditions of consent is not displaced by the grant of a fresh development consent for the same land, any inconsistencies may lead to practical difficulties for a landowner in complying with all development consents, and difficulties for a consent authority in ensuring compliance with all consents.
A consent authority could resolve inconsistencies where multiple conditions of consent apply to the same land by:
- expressly stating in the latest conditions of consent that if there is any inconsistency with an equivalent condition of the earlier approval, the condition under the latest consent shall prevail to the extent of any inconsistency
- granting development consent to a fresh development application, subject to a condition requiring the modification or surrender of an existing condition of consent
- the applicant voluntarily surrendering an earlier approval in accordance with the regulations.
Conclusion
When drafting conditions for a fresh development application on land where an existing consent already applies, consent authorities have a range of options at their disposal to avoid the possibility of inconsistencies arising between the conditions of consent.
Given the enduring nature of a development consent, consent authorities and applicants should take care in ensuring they understand how multiple development consents operate and interact.
This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.