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Modifying a Development Application in NSW

Quite often, someone will receive approval for a Development Application and will need to modify it. The modification may be the result of wanting to change the plans, being unsatisfied with a condition that was imposed in the original approval or to correct an error in that approval.

The common slang for a modification application until recently has been a "Section 96". As I explained in my recent post on terminology, recent changes to the Act now mean that this is referred to as a "Section 4.55" Application.

There are three main types of modification application, these are:

(1) Modifications involving minor error, misdescription or miscalculation

(1A) Modifications involving minimal environmental impact

(2) Other modifications

A key test for all of the above applications is that a modification application has to be "substantially the same development". For instance changing the facade or car parking arrangements of a commercial building may be considered by a Council to be a modification application, although if the proposal is to change the entire nature of the proposal or building, an entirely new Development Application would likely be required. A modification application can potentially be lodged before a building is constructed, during construction or once it is operational.

Common types of modification include applications to change hours of operation in a consent, or to change minor aspect of the design eg. a small increase in floor area.

The fees for modification applications are regulated and are highest for Section 4.55(2) applications and lowest for Section 4.55(1) applications. For a Section 4.55(1A) application to be accepted, the Council has to be satisfied that the application is not only "substantially the same development" but is also of "minimal environmental impact". Unfortunately in practice, it can be hard to convince many Councils that any kind of modification meets the requirements for a Section 4.55(1A) regardless of how minor it is and many Councils insist on a Section 4.55(2) application where the fee is higher.

Both Section 4.55 (1A) and (2) applications may be notified by the Council to neighbours.

If an application has been approved by the Land and Environment Court despite being originally refused by Council, an proponent is still required to lodge the modification application with Council rather than going straight to Court. The option of going to court for the application to be considered then may arise if Council refuses the application or fails to determine it within the prescribed time frame.

For any questions regarding modification applications, feel free to get in contact.

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