Earlier this year we published an article concerning the implications of Craig J’s decision in De Angelis v Wingecarribee Shire Council [2016] NSWLEC 1. That article can be accessed here.
The key finding in that decision was that the standard savings provision contained in Local Environmental Plans (LEP)(cl 1.8A) operated in an ‘ambulatory’ manner, which meant that it operated with respect to the LEP as amended from time to time (with Craig J reading the words ‘as amended from time to time’ into the savings clause).
This decision had some unfortunate impacts given that it involved the model savings clause, thus having application to every LEP containing the clause.
The decision meant that an amending LEP which came into force and prohibited development proposed in a development application (DA) before a council would not in fact have the effect of prohibiting the development, so long as the DA was lodged prior to the amending LEP coming into force. This was contrary to a long standing legal principle that absent a specific savings provision in an amending LEP, a DA has to be determined in accordance with the law as at the date of the determination.
The decision also had some further somewhat bizarre impacts with respect to DAs lodged in conjunction with planning proposals seeking to change a LEP to facilitate the development (such as increasing height or FSR controls, or making the development permissible).
Due to the general application of the principal, on one view it meant that even though an amending LEP had come into force, which was prepared in conjunction with, and specifically aimed to facilitate, the proposed development (something expressly contemplated by s 72J of the Environmental Planning and Assessment Act 1979 (EPA Act)), the consent authority was still bound to determine the DA as if the new amendment had not come into force. Thus the precise reason for the planning proposal seeking to amend the LEP was thwarted (though was dealt with in some cases by specific savings provisions in the amending LEP which sought to make it clear that the amendments applied to the DA in question).
Reasons such as these contributed to the Court of Appeal in Wingecarribee Shire Council v De Angelis [2016] NSWCA 189 finding that Craig J’s construction of the savings clause was in error. The Court of Appeal’s reasoning included:
- There was nothing in the principles of statutory interpretation that justified re-writing the savings clause so as to give it an ambulatory effect;
- The beneficial purpose of Division 4B of Part 3 of the EPA Act (which includes s 72J) would be frustrated by giving the savings clause an ambulatory operation;
- Clear wording would be required in order to amend the general savings provision which came into force when the original LEP commenced so as to give it an ambulatory operation; and
- Whilst LEPs should be construed having regard to practical considerations rather than meticulous comparison of provisions as may occur when construing Acts of parliament, basic principles of statutory interpretation does not entitle the Court to re-write the instrument.
Conclusion
Whilst the original decision presented some positives and negatives for Councils and developers, the Court of Appeal’s decision has returned the law to the status quo.
If an amending LEP comes into force prior to the determination of a DA, then unless there is some specific provision in the amending instrument that saves the DA, it will have to be determined in accordance with the law as at the date of the determination. For example, if the amendment prohibits what is proposed by the DA, the consent authority would have to refuse consent on the basis of that prohibition.
This article was written by Jane Hewitt, Partner and Philip Brown, Special Counsel.