In Australian Village No. 12 – Gladstone St Pty Ltd v Inner West Council, the Land and Environment Court explained the concept and identified common confusions that can arise with “amending development applications”.

What is an Amending Development Application?

An “amending development application” is a development application that seeks to modify development in an already approved development consent by proposing changes, but does not operate under section 4.55 of the Environmental Planning and Assessment Act 1979 (EPA Act).

The decision in Gordon & Valich Pty Ltd v City of Sydney Council [2007] NSWLEC 780 provided important guidance on the proper understanding of development applications and clarified why it’s not always correct to say a development application can simply “amend” an existing consent. The key takeaway from this judgment is that a development consent is not itself “development” – it is an approval that authorises certain works or uses. His Honour Chief Judge Preston explained the following:

1. while an applicant may submit a new application for a similar or modified form of development, any approval granted does not directly amend the previous consent but rather results in a new and separate approval, which may have the effect of overriding or altering an earlier one.
2. This distinction is critical because it underscores that the planning system does not recognise an “amendment” to an existing development consent as a standalone category of application (despite what those in the industry may say colloquially). Instead, applicants must either seek a modification under section 4.55 of the EPA Act (where applicable) or lodge a fresh development application seeking consent for the revised proposal.
3. Describing a new development application as an amendment to a prior consent does not necessarily invalidate the application. Instead, courts and consent authorities must assess the substance of the proposal, examining the plans and documentation to determine what form of development approval is actually being sought.

This reasoning was directly relevant in Australian Village No. 12 – Gladstone St Pty Ltd v Inner West Council, where the Court closely examined the nature of the development application and its relationship to the earlier consent, ultimately determining that it was an “amending development application” rather than a wholly new proposal.

What is NOT an Amending Development Application?

For the purposes of clarity, it is very important to appreciate that an “amending development application” is not any of the following:

1. Not a Modification Application: Unlike an application made under section 4.55 of the EP&A Act, which requires an assessment against tests such as whether the modification is substantially the same development, an amending development application does not need to meet these requirements.
2. Not an Amendment to a Lodged Application: This is distinct from amending a development application that has been lodged but not yet determined by the consent authority. Amendments to lodged applications are processed under the procedural rules governing assessment and determination, rather than being considered as a separate new development application.

Why did it matter in Australian Village No. 12 – Gladstone St Pty Ltd v Inner West Council?

An issue in that case was whether the development application was properly considered to be a “amending development application.”

The parties had differing views on whether the application sought to amend an existing consent or if it constituted a new development application.

An understanding of the development application was critical in this case, because it determined whether the proposal complied with the planning controls under the Marrickville Local Environmental Plan 2011 (MLEP 2011). Specifically, clause 6.13 of the MLEP 2011 required that at least 60% of the gross floor area in the B7 Business Park zone be used for non-residential purposes. If the application was an amendment to an existing approved mixed-use development, the change of use from commercial to residential would have had to satisfy the requirements of clause 6.13, including demonstrating that the development remained a mixed-use development with a sufficient proportion of non-residential space. However, if the application was seeking consent for a new development in its entirety, then the absence of a compliant non-residential component would render the proposal legally incapable of approval.

The applicant considered the development application to be seeking consent for the whole of the building, which would replace the earlier consent upon approval. The Council, on the other hand, argued that the application was merely amending an already approved development consent by altering specific elements without replacing the entire original approval.

On this, the Court specifically said:

The Council characterised the DA as a form of amending development application – the development proposed being limited to changes to the building and uses approved by [an earlier consent approved by the Court in 2020]. On the other hand, the Applicant characterised the DA as seeking development consent for the whole of the building, including that which has already been approved (and upon the grant of a new consent the earlier consent would be surrendered).

The Court’s decision

The Court determined that this was an “amending development application” because it sought to modify an existing development consent rather than propose an entirely new development.

The Court identified several key indicators that supported this including:

1. Retention of approved elements – The application retained the previously approved ground-floor commercial tenancies rather than proposing a complete redevelopment of the site.
2. Modification rather than replacement – The plans submitted with the application identified areas as “Approved Development,” with annotations showing “Proposed Changes” rather than presenting an entirely new development scheme. This indicated that the application sought to alter aspects of an existing approval rather than replace it.
3. Demolition of previously approved, but not yet constructed elements – The Level 1 demolition plan included elements of the development that had been approved but not yet constructed. The Court saw this as clear evidence that the application was modifying an existing approval rather than proposing a wholly new development.
4. Application documents and cost of works – The application form, supporting documents, and cost of works estimate reflected an amendment rather than a full redevelopment. The Court noted that the estimated cost of works ($330,000) was significantly lower than the cost of constructing the entire building ($15 million), reinforcing that the application sought to amend an existing approval rather than seek fresh consent for a new development.
5. Council and applicant’s own explanations – In correspondence, the applicant’s planning consultant described the application as an “Amending DA,” and the Council also processed it as an amendment to the original consent rather than a new application. The Court found this description consistent with the nature of the proposed changes.
6. Procedural handling in the Planning Portal – The Court considered that the amendment process involved submitting an updated development application form that specifically referenced the existing approval, and the planning portal records reflected an amendment rather than a new development.

Based on these factors, the Court concluded that the development application was properly considered to be an amending development application rather than a fresh application seeking consent for a new development.

Key takeaways

1. The decision in Australian Village No. 12 – Gladstone St Pty Ltd v Inner West Council highlights the importance of correctly understanding development applications, particularly when they seek to modify an existing approval.
2. An “amending development application” is distinct from both a modification application under section 4.55 of the EPA Act and an amendment to a lodged but undetermined development application.
3. An amending development application does not alter an existing consent directly. What is actually approved by an amending development application is only the specific works and changes proposed in that application – not the entire development again. The distinction matters because different planning controls and assessment pathways can apply depending on how an application is classified.
4. Gordon & Valich Pty Ltd v City of Sydney Council establishes that planning authorities and courts must look at the substance of an application rather than its description, ensuring that proposed changes are properly assessed under the relevant statutory framework.

Further reading

Below you can read the full judgments referred to in this article.