The recent decision in Mount Druitt Inn Pty Limited v Blacktown City Council [2026] NSWLEC 1390 reinforces an important legal principle that is often overlooked: before anyone gets to the planning merits, the consent authority (or the Court) must first have the legal power to consider the modification at all.

The Proposal

The original development consent approved the demolition of an existing hotel and motel and the construction of a new hotel and motel.

Years later, the applicant sought to modify the consent to:

1. remove the remaining motel component;
2. retain only the hotel; and
3. extend trading hours together with associated acoustic and building works.

The applicant argued that the development remained “substantially the same” because the hotel was always the dominant feature of the site.

The Critical Issue

Section 4.55 only allows a consent to be modified if the development, as modified, is the same or substantially the same development as originally approved.

That sounds straightforward.

In reality, it is one of the most litigated threshold questions in planning law.

The Court found that the original consent approved two distinct land uses – a hotel, and a motel. Removing the motel wasn’t simply deleting a building or changing the layout. It removed an entire approved land use and fundamentally altered the development’s character.

The consequence was that the Court determined it had no power to approve the modification because the legal requirement in section 4.55(2) was not satisfied.

Why This Matters

It’s tempting to look at an approved consent and ask whether an unviable component can simply be removed through a modification application. This decision is a reminder that the question isn’t whether the change makes commercial sense. The question is whether the development still has the same essential character as the one originally approved. If the answer is no, section 4.55 may not be available.

Practical Lessons

When considering a modification application, it is appropriate to consider whether the application does any of the following:

1. does it remove an entire approved land use?
2. does it delete a significant building or stage of development?
3. Does the proposal fundamentally change what was originally approved?
4. Would someone reading the original consent describe the modified proposal as essentially the same development?