Tiptoeing around the ‘tipping point' – limits to amending a development application before it is determined

Developers and consent authorities will be intimately familiar with the mechanism for proponents to amend a development application (and more recently, modification application) before the application is determined.

The power to amend an undetermined application allows applicants to respond to matters raised, usually by Council, while the application is under assessment, or during class 1 appeal proceedings before the Land and Environment Court.

However, the power to amend an undetermined application has limits.

In two recent Registrar's decisions, the Land and Environment Court found that proposed amendments to two development applications on appeal were outside the power to amend because the proposed amendments would push the development past the "tipping point" into being a new application.