Cumerlong Holdings Pty Ltd v Dalcross Properties Pty Ltd

Cumerlong Holdings Pty Ltd (the appellant) appealed to the Court of Appeal of the Supreme Court of New South Wales against a decision concerning the interpretation of the Ku-ring-gai Local Environmental Plan 194 (LEP 194). The dispute centred on whether certain provisions of LEP 194, which altered zoning, required the approval of the Governor under section 28(3) of the *Environmental Planning and Assessment Act 1979* (NSW) (EPA Act), and whether LEP 194 provided that a specified regulatory instrument should not apply to particular development.

The primary legal issues before the Court of Appeal were: first, whether the provisions of LEP 194 that effected a change of zoning required the approval of the Governor under section 28(3) of the EPA Act; and second, whether those provisions of LEP 194 provided that a regulatory instrument specified in LEP 194 should not apply to any particular development. The Court was required to interpret the meaning of "provide", "provision", and "tenor" within the context of the EPA Act and LEP 194, considering both the plain text and the purposive approach to statutory interpretation, and potentially referring to extrinsic material such as dictionaries.

The Court of Appeal held that the provisions of LEP 194 that changed zoning did not require the approval of the Governor under section 28(3) of the EPA Act. Their Honours reasoned that section 28(3) applied only to provisions that *exempted* development from the operation of a regulatory instrument, not to provisions that *altered* the zoning itself. The Court further found that LEP 194 did not provide that a regulatory instrument specified within it should not apply to any particular development, as the language used did not amount to such a provision. The appeal was therefore dismissed.