Under Section 5.25 of the Environmental Planning & Assessment Act 1979 (EP&A Act), the proponent of an approved State significant infrastructure (SSI) or Critical State significant infrastructure (CSSI) project may request the Minister to modify the approval at any time. These modifications may be necessary to improve the design of the project or to vary the conditions of approval.
The modification process will vary depending on the scale and nature of the proposed modifications, and any statutory requirements.
Prior to lodging a modification request, the proponent should consult with the department to identify the issues to be addressed and the need for any community engagement.
Prepare modification report
A modification request must be accompanied by a modification report which details the nature of the proposed modification. The proponent must have regard to the State Significant Infrastructure Guidelines - Preparing a Modification Report (Appendix F) when preparing the modification report.
Submit modification application
Once complete, the proponent must submit the modification request and modification report on the NSW planning portal.
Exhibit modification report
Once received, the department will publish the modification application and modification report on the NSW planning portal.
Under the EP&A Act, the department has discretion to exhibit and seek submissions on a modification report. In determining whether the modification report will be publicly exhibited, the department will consider if there is a material environmental impact beyond the impacts expected by the approved project.
If the department exhibits the modification application, the exhibition period will generally be for a minimum of 14 days. This is to give the community an opportunity to read the modification report and make a submission on the merits of the modified project.
During the exhibition period, anyone can make a written submission on the modification request.
People can also subscribe for updates on the progress of the modification request.
Respond to submissions
If the modification report is exhibited, the department will publish the submissions online and ask the proponent to prepare a submissions report to respond to the issues raised in submissions.
Assess modification request
The department will complete its assessment of the merits of the modifications in accordance with any relevant Government legislation, plans, policies, and guidelines and consider the issues raised in submissions and the applicant's response to those issues (if the modification report is exhibited).
The department will summarise the findings of its detailed assessment of the modification application in a whole-of-government assessment report, which will include any recommended changes to the existing conditions of the SSI approval.
Once complete, the department will publish its assessment report and ask the approval authority to determine the application.
Determine modification request
The Minister for Planning is the approval authority for all modification requests. The Minister has delegated this function to senior officers of the department in certain circumstances.
In determining a modification request, the approval authority must evaluate the merits of the modified project as a whole, having regard to the economic, environmental, and social impacts of the modified project and the principles of ecologically sustainable development. The approval authority may approve the modification application subject to conditions or refuse it.
After the determination the department will:
- publish the decision online
- notify the proponent
- give public notice of the decision and how community views were taken into account in making the decision.
Under the EP&A Act, decisions on modification requests are not subject to merit appeal.
However, anyone can seek a judicial review of the decisions on a modification request within 3 months of the public notice of the determination. These proceedings will be heard by a judge of the Land and Environment Court and will consider the legality or validity, not the merits, of the decision.