Councils commonly amend their LEPs to retrospectively prohibit a DA that has already been made. Once such recent attempt failed, when the Land and Environment Court determined that the amending LEP did not operate to outright prohibit the development.  The Court found that the savings clause in the original LEP prevented the amending LEP from operating on the application. This case has important implications for applicants facing similar retrospective action from Councils.

Wingecarribee Shire Council has, for the second time, failed to stifle the redevelopment of a site in Bowral for mixed use development, by amending its local environmental plan (LEP) after the development application (DA) was lodged. This article discusses the recent Land and Environment Court case of De Angelis v Wingecarribee Shire Council [2016] NSWLEC 1 and its implications for developers.

Decision in a nutshell

In this case the Court held that the amendment to the LEP, which was made after the DA was lodged, did not operate to prohibit the development. The effect of the decision is that the amendment is not to be considered part of the LEP when the DA is determined.

Savings clauses in planning instruments

Planning instruments that are in force at the time a DA is determined are the instruments that must be taken into account in considering and determining the application. Importantly however, LEPs and State Environmental Planning Policies (SEPPs) may include “savings clauses” which often provide that if a DA is lodged before the LEP or SEPP is commenced, the DA is to be determined as if the LEP or SEPP had not commenced.

The savings clause in the Wingecarribee LEP does just this. Most LEPs have similar savings clauses based on the model clause promoted for adoption by the Department of Planning (we found over 100).

However the savings clause does not explicitly refer to what happens in the case that amendments are made to the LEP. Does the savings clause equally apply to development applications lodged before (but determined after) an amendment to the LEP commences?  In the De Angelis case, the Court has clarified the meaning and operation of that clause. More detail on the interpretation of that savings clause is set out below.

What happened?

In late 2013 Mr De Angelis applied for development consent to redevelop land for a mixed retail and residential development. The proposed development was permissible in the B4 mixed use zoning applying to his site under the Wingecarribee LEP.

The Council sought to change this by specifically rezoning Mr De Angelis’ land as R3 medium density residential to prohibit the retail part of the proposed mixed use development. Its first attempt was in early 2014. That amending instrument was successfully challenged in the Court of Appeal (on appeal from a decision by the Land and Environment Court) because the Council officer who signed the amending instrument did not have the power to do so on behalf of the Council (DeAngelis v Pepping [2015] NSWCA 236).

Two months later, the Council made (this time, properly) an amending instrument to rezone the site. The Court found that this amending instrument did not retrospectively prohibit the use proposed by the DA.

Legal arguments

The case centres on the correct interpretation of clause 1.8A of the LEP which states that if a development application was made but not determined before the LEP commenced, that development application must be determined as if the LEP had not commenced.

The LEP originally commenced on 16 June 2010 and adopted the form of the standard instrument local environmental plan.

The Council argued that the savings clause only applied to save development applications from the application of the LEP if they were made before 16 June 2010. In its view the LEP and the amending instrument were different plans. Additionally the Council contested that saving Mr De Angelis’ development application would render the amending instrument futile since it was created for the sole purpose of applying to Mr De Angelis’ site.

Mr De Angelis asserted that the amending instrument and the LEP were the same plan, just as any amendments to the LEP since it originally commenced on 16 June 2010 were also incorporated when reading the LEP. Any reference to “this Plan” in the LEP referred to the LEP as amended. Mr De Angelis’ argument was that the savings clause protects a proponent from the costly effects of the introduction of amendments to the planning regime after it has lodged a development application, including after 16 June 2010.

The decision

The Court agreed with Mr De Angelis: his proposed development was permissible.

The LEP and subsequent amendments made since it originally commenced on 16 June 2010 are read as the one plan and reflecting the ultimate intention of the lawmaker. References to “this Plan” in the LEP are taken as references to the LEP as changed by amending instrument. Therefore the savings clause applied to Mr De Angelis’ DA since it was made before the amendments rezoning the site commenced.

Since the Court only dealt with the legal issue posed of whether the amending instrument prohibited the proposed development (and not also whether consent would be granted), the matter continues and the application will be dealt with on its merits.

Considerations when determining a DA lodged before an amendment (or draft amendment) to an LEP has commenced

Importantly, the Court has previously indicated that the following considerations are relevant when determining a DA which was lodged before, but determined after the commencement of an amending instrument:

  • the weight to be given to the amending instrument, depending on:
    • whether the amending instrument or the principle LEP contains a savings clause
    • how certain and imminent the proposed instrument is (in cases where it has not yet been made or commenced)
  • whether the DA is antipathetic to the aims and objectives of the amending instrument.