05 October 2023
22 min read
#Government, #Property, Planning & Development
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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.
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.
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:
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:
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.
If you have any questions or wish to discuss, please get in touch with our team below.
Authors: Thomas Kwok, Katharine Huxley and Paul Libreri
New pathway to guide Cootamundra-Gundagai Regional Council de-amalgamation
The NSW Government has today salvaged the plan to de-amalgamate Cootamundra-Gundagai Regional Council (CGRC). A new plan to guide the establishment of two new sustainable local government areas will be assessed by the public inquiry led by the Boundaries Commission (3 October 2023). Read more here.
NSW inquiry to hear from children forced into motels, hotels due to shortage of foster carers
A special New South Wales inquiry will hear from vulnerable children who are living in hotels, motels and caravan parks due to an acute shortage of foster carers. Minister for Families and Communities Kate Washington said the inquiry, to be led by the Office of the NSW Advocate for Children and Young People, would shine a light on the problem (24 September 2023). Read more here.
Building an innovation sector for New South Wales
The Minns Labor Government will work with the innovation sector, leading experts including universities and business to produce a blueprint to guide how to support the NSW innovation sector. The Innovation Blueprint will be drafted alongside sector leaders and experts to start innovation in new sectors including energy, advanced manufacturing and agrifood and to enable new technologies like artificial intelligence and robotics. Roundtable discussions will help guide the Blueprint’s development (22 September 2023). Read more here.
NSW mayors from tourism hotspots eye Victoria’s Airbnb, short-stay accommodation levy
From 2025, holiday-goers across Victoria will be expected to pay extra to help with funding the state-s social and affordable housing by introducing a 7.5% levy on short-term rental properties. A mayor from a holiday hotspot in New South Wales says the "balancing act" between tourism and housing supply should be carefully considered before a short-term rental levy is introduced for platforms like Airbnb and Stayz. (21 September 2023). Read more here.
Changes to Minns Government Ministry strengthens focus on skills, jobs and regions
On 27 September 2023, NSW Premier Chris Minns announced changes to the NSW Ministry with the aim of boosting the government’s focus on skills, domestic manufacturing and the importance of TAFE to regional NSW. A new portfolio of Domestic Manufacturing and Government Procurement will seek to drive the return to domestic manufacturing and boost local jobs (27 September 2023). Read more here.
Civil and Administrative Tribunal Amendment Act 2023
The NSW Government has implemented recommendations arising out of the Report of the Statutory Review of the Civil and Administrative Tribunal Act 2023 which concluded minor and technical changes to support the conduct of proceedings and relating to the Occupational Division and Guardianship Division of the NSW Civil and Administrative Tribunal (20 September 2023). Read the Amendment Act here. Read the second reading speech here.
Final Report of the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability
The Governor-General, the Honourable David Hurley AC DSC, delivered the Final Report on 28 September 2023. Government will table the report in the Australian Parliament at a later time. The report will be available to the public on this website after the tabling process is complete. The Royal Commission has made 222 recommendations and the Final Report consists of 12 volumes plus an additional introductory volume. Click here to access the Final Report volumes. Click here to view the Royal Commission’s “A brief Guide to the Final Report”.
Final Report of the Future Drought Fund
The Australian Government Productivity Commission’s final inquiry report examines the effectiveness, efficiency and appropriateness of Part 3 of the Future Drought Fund Act 2013. The report was handed to the Australian Government on 8 September 2023 (26 September 2023). Read more here.
Working Future: The Australian Government’s White Paper on Jobs and Opportunities
On 25 September 2023, the Treasury published its Employment White Paper. The paper says policymakers needs to acknowledge the reality of underemployment and under-utilisation in the economy, and the impact they've had on communities across the country. The government says it plans to use the policy tools available to remove barriers to work, to help Australians acquire the skills they need, and to ensure people have secure jobs that are fairly paid (25 September 2023). Read the Paper here.
Harbourlights – Strata Plan 32515 v Chief Commissioner of State Revenue [2023] NSWCATAP 265
TAXATION AND DUTIES – Parking Space Levy – exemption – whether parking spaces ‘set aside exclusively’ for exempt / non-exempt purposes – whether visitor parking spaces in a residential complex can be said to be spaces that are set aside exclusively for the purpose of parking of motor vehicles ‘by’ persons who reside on the premises within the meaning of reg 7(1)(b) of the Parking Space Levy Regulation 2009 (NSW) and reg 8(1)(b) of the Parking Space Levy Regulation 2019 (NSW).
Civil and Administrative Tribunal Act 2013 (NSW); Interpretation Act 1987 (NSW); Parking Space Levy Act 2009 (NSW); Parking Space Levy Regulation 2009 (NSW); Parking Space Levy Regulation 2019 (NSW); Trade Practices Act 1974 (Cth).
The Trusteee For Good Time Holdings NSW Trust v The Council of the City of Sydney [2023] NSWLEC 1572
DEVELOPMENT APPLICATION – demolition of part of a former warehouse building and construction of a hotel including ancillary uses – insufficient environmental planning grounds to justify the exceedance of the height of buildings development standard – the provisions in the Sydney Development Control Plan 2012 regarding warehouse buildings older than 50 years apply to the existing building notwithstanding that the site is not identified as a local heritage item – the proposal does not conserve the significant elements of the part of the former warehouse on the site.
Environmental Planning and Assessment Act 1979, ss 8.7, 8.15; Land and Environment Court Act 1979, s 39; Sydney Local Environmental Plan 2012, cll 4.6, 6.4, 6.21B, 6.21C, Sch 5.
Alves v State Insurance Regulatory Authority [2023] NSWCA 232
ADMINISTRATIVE LAW – Judicial review – Jurisdictional error – application for review of District Court decision dismissing appeal against sentence imposed by Local Court – where applicant pleaded guilty to charge of dishonestly obtaining financial advantage by deception – where applicant claimed he was criminalised for no reason – where leave to appeal against conviction not sought – whether District Court committed jurisdictional error in determining sentence appeal.
Crimes Act 1900 (NSW), s 192E; Crimes (Appeal and Review) Act 2001 (NSW), ss 11, 12, 17, 20; Crimes (Sentencing Procedure) Act 1999 (NSW), ss 4, 5, 7, 73, 73A; District Court Act 1973 (NSW), s 176; Supreme Court Act 1970 (NSW), s 69; Uniform Civil Procedure Rules 2005 (NSW), rr 42.1, 59.4.
Hamdan v Commissioner for Fair Trading [2023] NSWCATOD 147
OCCUPATIONS – other occupations – electrical contractors and electricians – whether the Applicant is a fit and proper person to hold the licence.
Administrative Decisions Review Act 1997 (NSW) Home Building Act 1989 (NSW); Home Building Regulation 2014 (NSW).
Andrews v Transport for NSW [2023] NSWLEC 1568
COMPULSORY ACQUISITION – objection to the amount of compensation offered by the Respondent – conciliation conference – agreement between the parties – orders.
Land Acquisition (Just Terms Compensation) Act 1991, ss 49, 50, 55, 66; Land and Environment Court Act 1979, s 34.
Fire Brigades Employees Union v Fire and Rescue NSW [2023] NSWCATAD 253|
ADMINISTRATIVE LAW – administrative review – Government information – Whether reasonable searches were conducted – absence of supporting evidence from the respondent – whether summonses should be issued to officers and/or former officers of the respondent – matter remitted to the respondent for reconsideration.
Administrative Decisions Review Act 1997 (NSW); Government Information (Public Access) Act 2009 (NSW).
Greyhound Welfare and Integrity Commission v Bell [2023] NSWSC 1150
ADMINISTRATIVE LAW – JUDICIAL REVIEW – where greyhound tested positive to prohibited substances after a race – whether factual finding as to when the greyhound ingested the prohibited substances was legally unreasonable – finding was based on expert evidence – high threshold for establishing legal unreasonableness or illogicality – not established – whether Commission was denied procedural fairness in not being on notice that the Tribunal would find the contamination happened post-race – where finding not specifically advanced by the parties – Commission was on notice and had the opportunity to make submissions – whether Commission was on notice that the Tribunal would accept expert evidence as to timing but not contamination – no denial of procedural fairness – whether penalty imposed was unreasonable or irrational because it was manifestly inadequate – not established.
Greyhound Racing Act 2017 (NSW), ss 4, 55, 58(1), 59(1); Greyhound Racing Rules 2022, rr 42(2), 83(2(a); Racing Appeals Tribunal Act 1983 (NSW), ss 5, 6, 15A, 16(1)(2), 17A(1)(2), 18; Racing Appeals Tribunal Regulations 2015 (NSW), regs 9(1), 10; Supreme Court Act 1970 (NSW), s 69.
Independent Liquor and Gaming Authority v Whitebull HTL Pty Ltd; Independent Liquor and Gaming Authority v Area Hotel UT Pty Ltd; Independent Liquor and Gaming Authority v The Griffith Hotel Pty Ltd [2023] NSWCA 224
ADMINISTRATIVE LAW – gambling regulation – applications to transfer or lease gaming machine entitlements – applications to increase gaming machine thresholds – conditions imposed on hotel licenses – whether declarations as to construction of statute were appropriate – whether order requiring grant of application was appropriate – scope of discretions under ss 19, 25 and 34 of the Gaming Machines Act 2001 (NSW) – scope of discretion under s 53 of the Liquor Act 2007 (NSW) – whether s 53 of the Liquor Act provides power to impose conditions on liquor licences relating to harm minimisation concerns relating to gaming machines.
Casino Control Act 1992 (NSW); Community Gaming Act 2018 (NSW); Gaming and Liquor Administration Act 2007 (NSW); Gaming Machines Act 2001 (NSW); Gaming Machines Amendment Act 2008 (NSW); Gaming Machines Amendment Bill 2008; Gaming Machines Regulation 2019 (NSW); Interpretation Act 1987 (NSW); Liquor Act 2007 (NSW); Unlawful Gambling Act 1998 (NSW).
Regan v Commissioner of Police (No 2) [2023] NSWIRComm 1097
EMPLOYMENT AND INDUSTRIAL LAW – appeal from two decisions – application for leave to appeal –unfair dismissal application – victimisation application – no error of law identified – leave to appeal refused in both appeals.
Industrial Relations Act 1996, ss 181, 187, 190A, 191; Police Act 1990 s 72 A.
Police Association of New South Wales v Commissioner of Police, NSW Police Force [2023] NSWIRComm 1095
EMPLOYMENT AND INDUSTRIAL LAW – Appeals – application for leave to appeal – Commissioner at first instance exercised discretion not to grant orders sought pursuant to ss 136 and 137 of Industrial Relations Act 1996 to prevent medical retirement of police officer pursuant to s 94B of the Police Act 1990 – no practical utility in appeal – appeal raises significant questions with implications for jurisprudence of Commission – leave to appeal granted – relevance of collective character of dispute in exercising discretion to grant relief in industrial dispute proceedings – collective character relevant to making dispute orders pursuant to s 137 – appeal dismissed.
Commonwealth of Australia Constitution Act; Industrial Relations Act 1996 (NSW) ss 3, 6, 84, 89, 130, 132, 133, 134, 135, 136, 137, 139, 187, 188, 191, 193; Police Act 1990 (NSW) s 94B; Workers Compensation Act 1998 (NSW); Workplace Injury Management and Worker’s Compensation Act 1998 (NSW) s 49; Workplace Relations Act 1996 (Cth).
Fairfield City Council v Bastow Civil Constructions Pty Ltd [2023] NSWSC 1143
STATUTORY INTERPRETATION – Impounding Act 1993 (NSW) (repealed) – whether s 45(3) confers statutory right of action – whether subsection creates exception to statutory extinguishment of right of former owner to sue impounding authority for damages for exercise of power of sale of impounded item.
TORTS – negligence – duty of care – public authority – whether Civil Liability Act 2002 (NSW), 43A engaged – whether liability based on exercise of special statutory power.
TORTS – negligence – standard of care – Civil Liability Act 2002 (NSW), s 43A(3) – whether no public authority could properly consider pleaded acts and omissions a reasonable exercise of its power – multiple failures to keep records leading to sale of impounded vehicle.
TORTS – negligence – Civil Liability Act 2002 (NSW), s 43 – whether s 43 applies to actions in negligence.
Civil Liability Act 2022 (NSW), ss 40, 41, 43, 43A, 44; Civil Liability Amendment Act 2003 (NSW); Impounding Act 1993 (NSW) (repealed), ss 15, 16, 17, 18, 20, 23, 24, 25, 27, 45; Local Court Act 2007 (NSW), ss 39, 40.
Ugur v Commissioner of Police [2023] NSWCATAP 261
GOVERNMENT INFORMATION – whether in deciding to affirm the “information not held” decision under s 58(1)(b) of the Government Information (Public Access) Act, the Tribunal made a decision without evidence.
PROCEDURAL FAIRNESS – apprehended bias – whether the reason for decision given by the Tribunal gave rise to a reasonable apprehension of bias.
PROCEDURAL FAIRNESS – adjournment – whether by declining to grant the appellant’s application for adjournment of the hearing the appellant was denied procedural fairness.
EVIDENCE – no evidence – whether Tribunal made findings of fact without evidence.
REASONS FOR DECISION – whether delay in making decision resulted in a denial of procedural fairness.
REASONS FOR DECISION – whether reasons for decision were adequate.
APPEAL – fresh evidence – whether the power conferred by 80(3) of the Civil and Administrative Tribunal Act 2013 (NSW) to deal with an appeal by way of a new hearing should be exercised.
Administrative Decisions Review Act 1997 (NSW), ss 63, 65; Civil and Administrative Tribunal Act 2013 (NSW), ss 38(2), 41, 62(3), 80, 81; Civil and Administrative Tribunal Rules 2014 (NSW), reg 25(4)(c); Government Information (Public Access) Act 2009 (NSW), ss 3, 4, 5, 9, 12, 13, 14, 53, 55, 58(1)(b), 74, 80, 86, 89, 93, 100, 105, 107, 108(3), Sch 1, cll 4, 7(b).
Environmental Protection Authority v Maules Creek Coal Pty Ltd (No 2) [2023] NSWLEC 97
PRACTICE AND PROCEDURE – application to trial judge to certify recusal decision as a proper one for determination on appeal – whether recusal decision is an “interlocutory judgment or order” within meaning of s 5F(3) of the Criminal Appeal Act 1912 (NSW) – application for stay of proceedings pending determination of appeal of recusal decision to the Court of Criminal Appeal – applications dismissed.
Criminal Appeal Act 1912 (NSW) s 5F; Supreme Court Act 1970 (NSW) s 101.
Environmental Protection Authority v Clarence Valley Metal Recyclers Pty Ltd [2023] NSWLEC 96
APPEALS – defendant pleaded guilty in the Local Court to three offences in breach of the Waste Avoidance and Resource Recovery (Container Deposit Scheme) Regulation 2017 (the Regulation) – guilty pleas entered at earliest opportunity – offences arose out of the Defendant fraudulently claiming refunds pursuant to the Regulation for containers for which refunds had previously been claimed by others – defendant’s offending conduct found by the Local Court to be in the mid-range – offences were committed for financial gain – penalty of $15,000 imposed by the Local Court for each offence – Prosecutor’s appeal against sentences imposed – Prosecutor complains Local Court sentencing process miscarried as sentences were manifestly inadequate – held Local Court sentencing process miscarried as sentences were manifestly inadequate – prosecutor’s appeals upheld – appropriate to resentenced Defendant – sentencing limit of $110,000 for each offence in the Local Court – no comparable sentencing information available as these were the first offences charged for breaches of the Regulation – appropriate starting penalty for each offence of $72,000 – defendant entitled to 25% discount for early guilty pleas – prosecutor accepts that all three offences arose from a single course of offending conduct – appropriate to adjust the overall penalties to reflect totality and accumulation of penalties to be imposed on the Defendant – defendant resentenced – defendant ordered to pay the Prosecutor's costs of the appeal as agreed or assessed – prosecutor seeks moiety of penalties – appropriate to order moiety of penalties (50%) to be paid to the Prosecutor.
Corporations Act 2001 (Cth), s 198A(2); Crimes (Appeal and Review) Act 2001, ss 42(2) and 48(1)(b); Crimes (Sentencing Procedure) Act 1999, ss 21A and 23; Criminal Procedure Act 1986, ss 257B and 257G; Fines Act 1996, ss 6 and 122; Waste Avoidance and Resource Recovery (Container Deposit Scheme) Regulation 2017.
Chalhoub v Commissioner for Fair Trading [2023] NSWCATOD 142
ADMINISTRATIVE LAW – REVIEW OF DECISION BY EXTERNAL DECISION-MAKER – decision to refuse contractor licence pursuant to the Home Building Act 1989 (NSW) – fit and proper person.
Administrative Decisions Review Act 1997 (NSW); Civil and Administrative Tribunal Act 2013 (NSW); Civil and Administrative Tribunal Rules 2014 (NSW); Firearms Act 1996 (NSW); Home Building Act 1989 (NSW).
Acts compilation
Australian Securities and Investments Commission Act 2001 30/09/2023 – Act No. 51 of 2001 as amended
Australian Prudential Regulation Authority Act 1998 30/09/2023 – Act No. 50 of 1998 as amended
International Organisations (Privileges and Immunities) Act 1963 30/09/2023 – Act No. 50 of 1963 as amended
National Consumer Credit Protection Act 2009 30/09/2023 – Act No. 134 of 2009 as amended
Foreign Acquisitions and Takeovers Act 1975 30/09/2023 – Act No. 92 of 1975 as amended
Income Tax Assessment Act 1997 29/09/2023 – Act No. 38 of 1997 as amended
Competition and Consumer Act 2010 29/09/2023 – Act No. 51 of 1974 as amended
Treasury Laws Amendment (2023 Measures No. 3) Act 2023 28/09/2023 – Act No. 75 of 2023 as amended
Banking Act 1959 28/09/2023 – Act No. 6 of 1959 as amended
Export Control Act 2020 27/09/2023 – Act No. 12 of 2020 as amended
Insurance Act 1973 27/09/2023 – Act No. 76 of 1973 as amended
Superannuation Industry (Supervision) Act 1993 27/09/2023 – Act No. 78 of 1993 as amended
Criminal Code Act 1995 27/09/2023 – Act No. 12 of 1995 as amended
Excise Act 1901 27/09/2023 – Act No. 9 of 1901 as amended
Financial Sector (Transfer and Restructure) Act 1999 27/09/2023 – Act No. 45 of 1999 as amended
Corporations (Aboriginal and Torres Strait Islander) Act 2006 26/09/2023 – Act No. 124 of 2006 as amended
Private Health Insurance (Prudential Supervision) Act 2015 26/09/2023 – Act No. 85 of 2015 as amended
Payment Systems and Netting Act 1998 26/09/2023 – Act No. 83 of 1993 as amended
Tax Agent Services Act 2009 26/09/2023 – Act No. 13 of 2009 as amended
Safe Work Australia Act 2008 26/09/2023 – Act No. 84 of 2008 as amended
Financial Regulator Assessment Authority Act 2021 25/09/2023 – Act No. 63 of 2021 as amended
Small Superannuation Accounts Act 1995 25/09/2023 – Act No. 52 of 1995 as amended
Therapeutic Goods Act 1989 22/09/2023 – Act No. 21 of 1990 as amended
Financial Sector Reform (Hayne Royal Commission Response – Protecting Consumers (2019 Measures)) Act 2020
21/09/2023 – Act No. 65 of 2020 as amended
Commonwealth Registers Act 2020 21/09/2023 – Act No. 65 of 2020 as amended
NSW Legislation
Appropriation (Parliament) Act 2023 No 25 – assented to 27 September 2023
Sydney Olympic Park Authority Amendment (Hill Road Upgrade) Act 2023 No 20 – assented to 20 September 2023
Crimes Amendment (Corrupt Benefits for Trustees) Act 2023 No 21 – assented to 20 September 2023
Civil and Administrative Tribunal Amendment Act No 22 – assented to 20 September 2023
Explosive Amendment Act No 23 – assented to 20 September 2023
Bills Introduced by Government
Criminal Procedure Amendment (Child Sexual Offence Evidence) Bill 2023 – introduced LA 20 September 2023
Regulations and other miscellaneous instruments
Environmental Planning and Assessment Amendment (Sustainable Buildings) Regulation 2023 (SI 531) – published LW 22 September 2023
Parliamentary Remuneration Amendment Regulation (No 2) 2023 (SI 533) – published LW 22 September 2023
Environmental Planning Instruments
Warringah Local Environmental Plan 2011 (Amendment No 28) 2023 (EPI 539) – published LW 22 September 2023
State Environmental Planning Policy (Sustainable Buildings) Amendment 2023 (EPI 537) – published LW 22 September 2023
Sydney Local Environmental Plan Amendment (Sirius Site) 2023 (EPI 538) – published LW 22 September 2023
Armidale Regional Local Environmental Plan 2012 (Amendment No 19) 2023 (EPI 534) – published LW 22 September 2023
Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.
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