Modification applications need to look at the elements of the original consent to remain ‘substantially the same’



[co-author: Clara Klemski]*

Redbank power plant sought to replace its coal tailings fuel source with biomass fuel. Its modification application was refused by the Land and Environment Court in Hunter Development Brokerage Pty Limited trading as HDB Town Planning and Design v Singleton Council [2022] NSWLEC 64.

In a decision that takes a close look at the test for modification applications, Duggan J refused the application on the basis that the development consent as modified was not substantially the same when looking at all of the elements in the original consent.


The case concerns an appeal from the deemed refusal by the Council, to a modification application for the Redbank power plant site to replace the coal tailings fuel source used for the power plant with biomass fuel.

The original development consent was granted in 1994 by the Land and Environment Court (Court), in what may be called an early climate change decision in Greenpeace Australia Ltd v Redbank Power Company Pty Ltd and Singleton Council (1994) 86 LGERA 143, and was for the “construction and operation of a 120 megawatt power plant” and the “construction of an ancillary slurry pipeline over adjacent land” with conditions which originally sought to power 100,000 homes in the local area. The power plant was constructed and began operations supplying electricity to the grid in 2001, ceasing in 2014 and now running in ‘care and maintenance’ mode.

The proposed modification was to introduce biomass, a plant or organic fuel source, as a source of fuel for the operation. It included the practical requirements for transporting the biomass to the power plant. Coal tailings and biomass are not able to be conveyed simultaneously.

Look at all characteristics to decide ‘substantially the same’

The requirements under section 4.56 of the Environmental Planning and Assessment Act 1979 (Act) set the standard for modifying a consent. Duggan J acknowledged these are “beneficial and facultative” and that it means “essentially or materially having the same essence” though, following the decision of Ku-ring-gai Council v Buyozo Pty Ltd (2021) 248 LGERA 300 at [54], also noted that this interpretation is not without constraint.

The case clarifies that it is not appropriate to only consider one element of the development consent to be modified – in this case, the change to the fuel source and accompanying requirements such as transport of the biomass – but to overall look at the whole of the development consent as originally granted. To do otherwise would not be in the spirit of the provisions of the Act. The exercise is to carry out an assessment of the characteristics of the development consent as granted and compare this with the characteristics of the modification proposal for the development as a whole.

The modification proposal made it clear that it would have resulted in a development that was not only for the supplementary use of the biomass fuel to power Redbank, but also for the disposal of coal tailings as in the original development consent linked to the Warkworth Mine.

Outcome and implications

In looking at all of the elements of the proposed modification, her Honour considered that the essential elements of the development would be so changed as to materially alter the original consent as granted. The original Environmental Impact Statement incorporated within the development consent as granted was for the disposal of coal tailings and the consequential generation of electricity from the process of the disposal of the coal tailings. The modification to introduce biomass fuel would no longer be the same development in essence. Duggan J noted at [97]:

The Applicant contends that it is impermissible to “focus” upon a single element of the development in determining whether it is substantially the same and that the totality of that approved must be compared to the totality of that modified. That is so, but this exercise cannot be undertaken in a numeric “tick a box” approach. The significance of a particular feature or set of features may alone or in combination be so significant that the alteration is such that an essential or material component of the development is so altered that it can no longer be said to be substantially the same development - this determination will be a matter of fact and degree depending upon the facts and circumstances in each particular case. Such an exercise is not focussing on a single element, rather it is identifying from the whole an element which alone has such importance it is capable of altering the development to such a degree that it falls outside the jurisdictional limit in s 4.56.

This will be useful for developers and local councils for modification applications which involve multiple elements. It will be important to look at the whole of a development consent when seeking to modify it and to ensure that the original development will not be so altered that it is no longer ‘substantially the same’ in a material way.

The case has implications for the energy industry seeking to convert existing infrastructure: careful consideration must be given to whether this can be achieved through a modification application, or whether a fresh development application should be lodged.

*Senior Associate

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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