May 2016

Why you can't rely on a savings provision in a Local Environmental Plan

Councils should exercise caution when relying on savings provisions in a Local Environmental Plan (LEP), according to a recent decision of the Land and Environment Court.

The decision, De Angelis v Wingecarribee Shire Council [2016] NSWLEC, examined a standard savings provision used in many LEPS throughout NSW for development applications. In this case, that provision was found in clause 1.8A of the Wingecarribee Local Environmental Plan 2010 (WLEP 2010). It said:

“If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this Plan had not commenced.”

Amended WLEP

The council had received a development application from a developer, Mr De Angelis, for a mixed retail and residential development. Mr De Angelis lodged this DA after the WLEP commenced but before the council made Amendment number 38 to the WLEP, prohibiting the development.

Mr De Angelis took his case to the Land and Environment Court. The Court was required to consider whether WLEP 2010 or the council’s Amendment applied to his DA.

In court, the council argued that WLEP 2010 and the Amendment were different plans for the purposes of the savings clause. It also argued that the savings clause only applied to DAs made before 16 June 2010, when WLEP 2010 commenced.

Meanwhile, Mr De Angelis argued that the Amendment and WLEP 2010 were the same plan. He submitted that clause 1.8A was “designed to preserve the time and expense a developer has incurred in preparing a development application, in circumstances where the law dealing with it has been changed”.

Mr De Angelis also submitted that what constituted “this Plan” was time dependent.

The Court’s findings: clause 1.8A

Justice Craig of the Land and Environment Court concluded that the Amendment did not preclude the DA. Mr De Angelis’s application should be determined as though the Amendment had not commenced.

The court accepted Mr De Angelis’s submissions that clause 1.8A saved his DA. In doing so, it ruled that the clause enabled the court or a consent authority to exercise its planning discretion under s 80 of the Environmental Planning and Assessment Act.

Amendments still relevant

But even though the court found cl 1.8A saved the DA, this did not render the Amendment entirely irrelevant.

The court noted that the decision in Maygood Australia Pty Ltd v Willoughby City Council [2013] NSWLEC 142, found that where a proposed amendment existed at the time a development application is lodged, councils should consider it when determining a development application under s 79C (1)(a)(ii) of the EPA Act.

Author: Dennis Loether