27 September 2023
A council’s power to impose conditions when approving a modification application has long been held to be an implied power.
The recent decision of Peake Pearce Pty Ltd v Georges River Council  NSWLEC 89 (Peake Pearce) is a reminder that this implied power is more limited than the statutory power to impose conditions when granting development consent to a development application.
Sections 4.16(3) and 4.17 of the Environmental Planning and Assessment Act 1979 (EPA Act) set out the conditions that can be imposed on a development consent. Importantly, the modification of a development consent under section 4.55 or 4.56 of the EPA Act is not (and should not be thought of as) the granting of development consent. Rather, it is a post-consent approval that modifies a consent already granted.
In Peake Pearce, Duggan J considered whether a council had power to impose a “deferred commencement condition” when approving a modification to a development consent.
Deferred commencement conditions are permitted under section 4.16(3) of the EPA Act in the context of the grant of development consent:
“A development consent may be granted subject to a condition that the consent is not to operate until the applicant satisfies the consent authority, in accordance with the regulations, as to any matter specified in the condition.”
The applicant submitted, and the court accepted, that the power under the EPA Act to impose a deferred commencement condition could not relate to a modification of a development consent.
The key submissions were as follows:
The court held that:
The court declared that the modification was invalid and of no effect.
The case is a timely reminder that modification applications have a different statutory and decision-making context to development applications which can prove critical in certain situations.
Although the court did not comment on whether other types of conditions which the EPA Act allows to be imposed on development consents are more limited when imposed on modifications, Peake Pearce at least raises that question.
For example, there may be limitations on the power to impose conditions upon the approval of a modification application:
If you have any questions or need assistance regarding the assessment, determination or validity of a modification application, please get in touch with a member of our team below.
The information in this article 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 article is accurate at the date it is received or that it will continue to be accurate in the future.