Under Section 96 of the Environmental Planning and Assessment Act 1979, a development consent can be modified when it can be demonstrated that the modification is substantially the same as the approved development.
There are three different types of Section 96 applications and a fee is charged relevant to the type of modification proposed.
96(1) – Modifications involving minor errors, misdescription, or miscalculation
A 96(1) would be used, for example, to correct plan numbers, the description of a development or where Council has made an error in a condition of consent.
Section 96(1A) – Modifications involving minimal environmental impact
A 96(1A) would be used for minor amendments including, alterations to internal design, minor changes to the external façade, roofline, window positions or building finishes.
Section 96(2) – Other modifications
A 96(2) would be applied to developments where there is an amendment which requires further assessment in terms of car parking, servicing, environmental impacts or appearance.
If Council does not agree that the proposed modification would result in substantially the same development as originally approved, you must submit a new development application.
Please consult with the assessing officer prior to submitting your application via the NSW Planning Portal to ensure that the proposal may be considered as a modification and that you have all the relevant information to enable assessment of the application.
Determination of modifications
A modification to an application will be determined by the authority that determined the original consent. For example, where Council granted the original consent, the modification application will be determined by Council.
Timeframes for modifications
Applications for modifications are subject to deemed refusal periods based on the type of modification proposed. The recent changes to the Environmental Planning and Assessment Act 1979 provide for applicants to make an appeal to the court, if the Council has not made a decision within the timeframe allowed. The deemed refusal periods for the three types of Section 96 Application are:
- section 96 (1) – minor error or mis-description 50 days
- section 96 (1A) – minor modifications 50 days
- section 96 (2) – for other modifications 70 days