ENVIRONMENTAL PLANNING AND ASSESSMENT REGULATION 2000 - REG 115 Application for modification of development consent except for State significant development

ENVIRONMENTAL PLANNING AND ASSESSMENT REGULATION 2000 - REG 115

115 Application for modification of development consent except for State significant development

(cf clause 71A of EP[#38]A Regulation 1994)

(1) An application for modification of a development consent under section 4.55(1), (1A) or (2) or 4.56(1) of the Act must contain the following information--

(a) the name and address of the applicant,

(b) a description of the development to be carried out under the consent (as previously modified),

(c) the address, and formal particulars of title, of the land on which the development is to be carried out,

(d) a description of the proposed modification to the development consent,

(e) a statement that indicates either--

(i) that the modification is merely intended to correct a minor error, misdescription or miscalculation, or

(ii) that the modification is intended to have some other effect, as specified in the statement,

(f) a description of the expected impacts of the modification,

(g) an undertaking to the effect that the development (as to be modified) will remain substantially the same as the development that was originally approved,

(g1) in the case of an application that is accompanied by a biodiversity development assessment report, the reasonable steps taken to obtain the like-for-like biodiversity credits required to be retired under the report to offset the residual impacts on biodiversity values if different biodiversity credits are proposed to be used as offsets in accordance with the variation rules under the Biodiversity Conservation Act 2016 ,

(h) if the applicant is not the owner of the land, a statement that the owner consents to the making of the application (except where the application for the consent the subject of the modification was made, or could have been made, without the consent of the owner),

(i) a statement as to whether the application is being made to the Court (under section 4.55) or to the consent authority (under section 4.56).

(1A) An application for modification of development consent must--

(a) be in the form that is approved by the Planning Secretary and made available on the NSW planning portal, and

(b) be accompanied by the information and documents specified in the approved form and information or documents required by the Act or this Regulation, and

(c) be lodged on the NSW planning portal.

Note : An application for the modification of a development consent granted by the Court is not required to be lodged with the Court.

(2) The notification requirements of clause 49 apply in respect of an application if the consent of the owner of the land would not be required were the application an application for development consent rather than an application for the modification of such consent.

(3) In addition, if an application for the modification of a development consent under section 4.55(2) or section 4.56(1) of the Act relates to residential apartment development and the development application was required to be accompanied by a design verification from a qualified designer under clause 50(1A), the application must be accompanied by a statement by a qualified designer.

(3A) The statement by the qualified designer must--

(a) verify that he or she designed, or directed the design of, the modification of the development and, if applicable, the development for which the development consent was granted, and

(b) provide an explanation of how--

(i) the design quality principles are addressed in the development, and

(ii) in terms of the Apartment Design Guide, the objectives of that guide have been achieved in the development, and

(c) verify that the modifications do not diminish or detract from the design quality, or compromise the design intent, of the development for which the development consent was granted.

(3B) If the qualified designer who gives the design verification under subclause (3) for an application for the modification of development consent (other than in relation to State significant development) does not verify that he or she also designed, or directed the design of, the development for which the consent was granted, the consent authority must refer the application to the relevant design review panel (if any) for advice as to whether the modifications diminish or detract from the design quality, or compromise the design intent, of the development for which the consent was granted.

(4) If an application referred to in subclause (3) is also accompanied by a BASIX certificate with respect to any building, the design quality principles referred to in that subclause need not be verified to the extent to which they aim--

(a) to reduce consumption of mains-supplied potable water, or reduce emissions of greenhouse gases, in the use of the building or in the use of the land on which the building is situated, or

(b) to improve the thermal performance of the building.

(5) The consent authority may refer the proposed modification to the relevant design review panel but not if the application is for modification of a development consent for State significant development.

(6) An application for the modification of a development consent under section 4.55(1A) or (2) of the Act, if it relates to development for which the development application was required to be accompanied by a BASIX certificate or BASIX certificates, or if it relates to BASIX optional development in relation to which a person has made a development application that has been accompanied by a BASIX certificate or BASIX certificates (despite there being no obligation under clause 2A of Schedule 1 for it to be so accompanied), must also be accompanied by the appropriate BASIX certificate or BASIX certificates.

(7) The appropriate BASIX certificate for the purposes of subclause (6) is--

(a) if the current BASIX certificate remains consistent with the proposed development, the current BASIX certificate, and

(b) if the current BASIX certificate is no longer consistent with the proposed development, a new BASIX certificate to replace the current BASIX certificate.

(8) An application for modification of a development consent under section 4.55(1), (1A) or (2) or 4.56(1) of the Act relating to land owned by a Local Aboriginal Land Council may be made only with the consent of the New South Wales Aboriginal Land Council.

(10) A development consent may not be modified by the Land and Environment Court under section 4.55 of the Act if an application for modification of the consent has been made to the consent authority under section 4.56 of the Act and has not been withdrawn.

(11) In the case of an application for modification of a Penrith Lakes Development Corporation development consent where the proposed modification relates only to part of the land to which the development consent applies, the requirement to include the owner's consent in the application under subclause (1)(h) is a requirement to include the consent of the owner of the part of the land to which the modification relates only.

(12) In subclause (11),
"Penrith Lakes Development Corporation development consent" means the development consents DA2, DA3 and DA4 granted to the Penrith Lakes Development Corporation Limited in respect of land to which State Environmental Planning Policy (Penrith Lakes Scheme) 1989 applies on 24 February 1987, 27 June 1995 and 9 September 1998 respectively.

(13) This clause does not apply to an application for modification of a development consent for State significant development.