The NSW Government’s legislative reforms under the Environmental Planning and Assessment (Planning System Reforms) Act 2025 (NSW)¹ will change how complying development certificates (CDCs) are assessed in NSW. One significant change introduces a new CDC variation process, allowing an applicant to request a variation to a complying development standard when lodging a CDC application.
This article explains how the new process will operate and outlines the implications for councils and other consent authorities.
Although these amendments have received Royal Assent, they are not expected to commence until the second half of 2026.
New Power to Request a CDC Variation
Under new section 4.31A of the Environmental Planning and Assessment Act 1979 (NSW)², an applicant may apply to vary a complying development standard when:
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Lodging a CDC application; or
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Seeking a modification of an existing CDC.
The request must be made to an “appropriate person” within the meaning of the Act.
Who Is the “Appropriate Person”?
Section 4.31A(9) of the EP&A Act defines the appropriate person as:
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The council for the area where the complying development is proposed; or
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Another person prescribed by the regulations.
The Regulations accompanying the amending Act are yet to be published. As a result, the relevant local council is currently the only authority approved to issue a variation certificate.
Where a CDC application includes a variation request, the council may issue both the variation certificate and the CDC at the same time.
Limits on the Power to Issue a Variation Certificate
The power to issue a variation certificate is quite constrained. It only applies where:
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Complying development is permitted on the land; and
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The planning instrument specifically identifies the relevant development standard that may be varied by a variation certificate.
In assessing a variation request, the appropriate person must only consider matters relating to the development standard itself and its application to the proposed development.
For example, broader planning impacts such as loss of views cannot be taken into account when assessing a request to vary a landscaped area standard.
Statutory Timeframes and Deemed Approval
The reforms introduce strict statutory timeframes for determining variation requests:
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10 days where a variation certificate application is lodged on its own;
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20 days where the variation request is lodged with a CDC application.
If the appropriate person does not determine the application within the relevant timeframe, the variation certificate is deemed to have been issued. This is commonly referred to as a “deemed to be approved” (see section 159A of the EP&A Regulations).
Practical Implications for Councils
These reforms have important implications for councils and other appropriate persons responsible for issuing variation certificates.
As a result of the deemed approval mechanism, there may be increased pressure to determine applications quickly. In some cases, an appropriate person may be inclined to refuse a variation request within the statutory timeframe if:
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The assessment has not been completed; or
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Further information has been requested but not yet provided.
This risk is likely to be more pronounced where resourcing constraints affect assessment capacity.
No Appeal Rights for Refused Variation Certificates
The EP&A Reforms do not appear to provide any right against a refusal to issue a variation certificate. This further elevates the importance of the initial assessment process and timely provision of supporting information.
Key Takeaways for NSW Councils and Planners
As noted in the NSW Legislative Council’s second reading speech, the EP&A Reforms are intended to streamline the planning system, support housing delivery, and provide greater certainty to the construction industry.
The CDC variation process will provide a faster and more cost-effective approval pathway for some developments that currently require a development application. However, uncertainty around deemed approvals and council capacity may limit how effectively the reforms operate in practice.
This article does not constitute legal advice. If you require legal advice on how these reforms may apply to your specific circumstances, please contact Michael Mantei, Partner – Planning, Environment and Government at Madison Marcus.
Written by Savannah Moubarak and Michael Mantei
¹ Environmental Planning and Assessment Amendment (Planning System Reforms) Bill 2025 (NSW), New South Wales Parliament, Bill Details Page, available at: https://www.parliament.nsw.gov.au/bills/Pages/bill-details.aspx?pk=18807
