On 7 May 2025, the NSW Parliament passed the Environmental Planning and Assessment Amendment Bill 2025 (Bill). While the Bill introduces several amendments, 3 key changes respond directly to separate decisions handed down by the Land and Environment Court or Court of Appeal. With the intention of "restoring certainty in planning decisions", the Bill is a case study in the symbiotic relationship between the judiciary and Parliament in the making and interpretation of statute.
This article focuses on the 3 changes to the Environmental Planning and Assessment Act 1979 (EPA Act) that respond to the Courts' decisions, and the cases that catalysed those changes.
Ensuring flexibility in concept consents
The first change relates to concept consents. Under the EPA Act, development consent can be granted to a 'concept development application' (previously known as staged development applications). These applications usually seek consent for the high-level parameters for the use of a site, with details to follow in subsequent development applications. For example, a concept development application may seek approval for a proposed land use, building envelopes, and a stage 1 subdivision of land.
The benefit of this process is the certainty it provides for later stages, as approval effectively greenlights the concept for the site. This certainty is ensured by the EPA Act, which currently provides that while a concept consent is in force, "the determination of any further development application in respect of the site cannot be inconsistent with" the concept consent.
However, issues can arise where, for instance, the subdivision is carried out in accordance with stage 1 of the concept consent and the resulting lots are then sold off. If the new owners wish to develop those lots in a way that differs from what was originally approved under the concept development consent, they will not be able to do so under the EPA Act – unless the concept consent is modified to accommodate those changes.
The Bill amends the EPA Act in response to the decision in Castle Hill Panorama Pty Ltd v The Hills Shire Council [2023] NSWLEC 204 (Castle Hill Panorama Pty Ltd), where Justice Moore of the Land and Environment Court accepted that, under the condition powers in section 4.17 of the EPA Act, a consent authority can grant consent to a later-stage development application that is inconsistent with an existing concept consent so long as a condition is imposed requiring the previously granted concept consent be modified or surrendered.
The Bill introduces a subsection that expressly confirms the approach taken in Castle Hill Panorama Pty Ltd.
Modifications that only change consent conditions
The second change introduced by the Bill responds to the Court of Appeal's decision in Ku-ring-gai Council v Buyozo Pty Ltd [2021] NSWCA 177 (Buyozo). That decision effectively overturned the established understanding of a consent authority's power to modify a development consent. The Court held that the consent authority only had power to modify a development consent where the modification application sought to change the subject development; that power did not extend to applications that sought only to modify or remove a condition of consent that did not change the development itself.
The Bill amends the EPA Act to effectively reinstate the understanding of the modification powers prior to the decision in Buyozo, ensuring that modification powers are facilitative and allowing proponents to seek modifications to consent conditions which would not change the development (the subject of the consent).
Accounting for submissions outside of a notification period
The final change brought in by the Bill which relates to recent case law clarifies how objections are counted when determining the appropriate consent authority for a development application. The amendment specifies that the number of submissions received, for this purpose, is to be determined by the number of submissions received during the exhibition period.
Under the EPA Act, councils are required to "prepare a community participation plan" outlining how and when they will engage with the community when exercising planning functions. This includes opportunities for community participation in relation to development applications and a specified periods for public exhibition.
In Filetron Pty Ltd v Innovate Partners Pty Ltd atf Banton Family Trust 2 and Goulburn Mulwaree Council [2024] NSWCA 41 (Filetron), the Council told the applicant that it would accept a submission outside the exhibition period. The Court of Appeal had to decide whether a submission made by the applicant outside this period could be considered a submission under the EPA Act. This is important because the determination of the appropriate consent authority for the development application depends on the number of submissions received. The Court acknowledged that there is nothing in the EPA Act preventing a consent authority from considering submissions made outside the notification period.
The Bill clarifies that a submission made outside the exhibition period is not a submission for the purposes of the EPA Act, but this does not prevent a consent authority from considering such a submission. This will allow the appropriate consent authority to be determined with certainty at the end of the exhibition period, based on the number of objections received during that period (where relevant).
Takeaway
Although the Bill has passed both houses in Parliament, its provisions will not commence until a date to be appointed by proclamation or otherwise on the date of assent to the Act. As such, the changes above are not yet in effect. In the meantime, government lawyers should prepare for these changes, to the extent that they change the current application of the law, and consider whether these changes will necessitate changes to the processes or approaches taken in assessing, notifying or making development applications and modification applications.
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