Thinking | 25 February 2016

Savings provisions – the do’s and the don’ts.

The Land and Environment Court of NSW (Court) has provided clarification on the interpretation of savings clauses in Local Environmental Plans (LEP) to development applications (DAs) that are made, but not determined before the LEP is made or determined.

In De Angelis v Wingecarribee Shire Council [2016] NSWLEC 1, Mr De Angelis’s DA was made after Wingecarribee Local Environmental Plan 2010 (WLEP) commenced, but before an amendment to the WLEP commenced (Amendment No. 38). The effect of Amendment No. 38 was to prohibit Mr De Angelis’s development.

Clause 1.8A referred to in WLEP stated the following:

“If a development application has been made before the commencement of this Plan in relation to land 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.”

It was Council’s position that the words “this Plan” in Clause 1.8A referred to the WLEP as originally made. Therefore, under this interpretation, it would mean that Mr De Angelis’s DA was made after the commencement of “this Plan” and the savings clause would not apply to the DA. The result being that the WLEP as amended by Amendment No. 38 would apply to the DA and the development would be prohibited.

The Applicant submitted that Council’s interpretation was a narrow interpretation of the clause, and one should not read the words “the Plan” in such a way. Rather, any reference to the “the Plan” should be read as including the amendment to the WLEP – therefore, the saving clause would apply to the DA as Amendment No. 38 and the WLEP were the same plan.

The issue that the Court had to consider was whether clause 1.8A in the WLEP itself (rather than a savings clause in an amendment of WLEP) applied, so that the WLEP as amended did not apply to the DA.

The Court held that Amendment No.38, which was made after the DA was lodged, did not operate to prohibit the development, as the amendment was not considered part of the WLEP when the DA was determined.

The Court agreed with the Applicant, and held that the words “this Plan” in Clause 1.8A meant the Plan as it currently stood, including all amendments. In other words “this Plan” should be construed as “this Plan as amended by Amendment No. 38.” As a result, the savings clause applied to the DA as it was made before the amendments commenced.

Therefore, as Mr De Angelis had lodged his DA before the commencement of Amendment No. 38, the clause applied to the DA so that the DA was determined as if the amendment had not commenced.

This case demonstrates that retrospective action from Council to prohibit a DA that has already been made must be treated with caution. Importantly, it states that consent authorities must consider the weight to be given to an amending instrument and whether the DA is contrary to the aims and objectives of the amending instrument, if the consent authority was minded to amend an LEP following a determination of a DA.

Contact

Stan Kondilios

Stan is an Environmental and Planning Law litigator with over 25 years' experience as a NSW Local Government adviser.

Maurice Doria

Maurice is a property & projects lawyer with more than 25 years’ experience delivering legal services for clients.

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