De Angelis v Wingecarribee Shire Council

Case •

[2016] NSWLEC 1

•

05 February 2016

No judgment structure available for this case.

Land and Environment Court


New South Wales

  • Amendment notes
Medium Neutral Citation: De Angelis v Wingecarribee Shire Council [2016] NSWLEC 1
Hearing dates:17 December 2015
Date of orders: 05 February 2016
Decision date: 05 February 2016
Jurisdiction:Class 1
Before: Craig J
Decision:

1. Question: Whether Development Application LUA 13/0968 lodged with Wingecarribee Shire Council on 11 November 2013 is saved by virtue of clause 1.8A of the Wingecarribee Local Environmental Plan 2010 or whether it is prohibited by the making of Wingecarribee Local Environmental Plan 2010 (Amendment No 38).

Answer: The development for which development consent is sought in Development Application LUA13/0968 lodged with Wingecarribee Shire Council on 11 November 2013 is not prohibited by the making of Wingecarribee Local Environmental Plan 2010 (Amendment No 38) and by operation of cl 1.8A of Wingecarribee Local Environmental Plan 2010 that Development Application must be determined under the provisions of the Environmental Planning and Assessment Act 1979 as if Wingecarribee Local Environmentall Plan 2010 (Amendment No 38) had not commenced.

2.  Stand over the proceedings to the Registrar's List on Tuesday 16 February 2016 for directions.

3.  Exhibits may be returned.

Catchwords: DEVELOPMENT APPLICATION – permissibility of proposed development – issue determined as a separate question – amendment of principal planning instrument after the development application was made but not finally determined – operation of savings provision in principal planning instrument – whether reference in the savings provision to “this Plan” should be read as a reference to the Plan as amended – development application to be determined as if the amending instrument had not commenced
Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW)
Standard Instrument (Local Environmental Plans) Order 2006
Wingecarribee Local Environmental Plan 2010
Wingecarribee Local Environmental Plan 2010 (Amendent No 13)
Wingecarribee Local Environmental Plan 2010 (Amendment No 38)
Cases Cited: Darkinjung Local Aboriginal Land Council v Wyong Coal Pty Ltd (No 2) [2014] NSWLEC 71; 202 LGERA 223
De Angelis v Pepping [2015] NSWCA 236
Marrickvile Metro Shopping Centre Pty Ltd v Marrickville Council [2009] NSWLEC 109
Maygood Australia Pty Ltd v Willoughby City Council [2013] NSWLEC 142
Ocean Road Motel Pty Ltd v Pacific Acceptance Corporation Ltd [1963] HCA 22; 109 CLR 276
R v Seller [2013] NSWCCA 42; 273 FLR 155
The Dubler Group Pty Ltd v Minister for Infrastructure, Planning and Natural Resources [2004] NSWCA 424; 137 LGERA 178
Tovir Investments Pty Ltd v Waverley Council [2014] NSWCA 379
Texts Cited: Pearce and Geddes, Statutory Interpretation in Australia, (8th Ed, LexisNexis)
Category:Procedural and other rulings
Parties: Alcide De Angelis (Applicant)
Wingecarribee Shire Council (Respondent)
Representation:

Counsel:
A Galasso SC (Applicant)
T To (Respondent)

  Solicitors:
Gadens (Applicant)
Swaab Attorneys (Respondent)
File Number(s):10029 of 2014

Judgment

  1. 1 Alcide De Angelis seeks development consent for a mixed use development on land in Bowral. Although that consent was sought in 2013, no determination of the development application had been made when the present appeal to this Court was filed on 23 January 2014. The appeal was brought pursuant to s 97(1)(b) of the Environmental Planning and Assessment Act 1979 (NSW) (the EPA Act).

  2. Since commencement of the appeal, two local environmental plans have been made, purporting to amend the principal planning instrument controlling use of the land in question. The first amending instrument was held to be invalid on appeal from this Court to the Court of Appeal (De Angelis v Pepping [2015] NSWCA 236). The second amending instrument was published on the NSW legislation website on 16 October 2015.

  3. Arising from the operation of the second amending instrument, a Judge of the Court has ordered that the following question be first determined, separately from any other question or issue arising in the proceedings:

“Whether Development Application LUA 13/0968 lodged with Wingecarribee Shire Council on 11 November 2013 is saved by virtue of clause 1.8A of the Wingecarribee Local Environmental Plan 2010 or whether it is prohibited by the making of Wingecarribee Local Environmental Plan 2010 (Amendment No 38).”

Background

  1. As the question for determination indicates, development application LUA 13/0968 was made by the applicant on 11 November 2013. The land that is the subject of that application is located at the intersection of Bowral Street and Moss Vale Road in Bowral (the Site). The development application proposed the erection of a new building on the site, providing lower basement car parking, further car parking as well as retail uses on the upper basement level, a discount department store and further retail shops at ground floor level, with residential apartments to be located on the first floor.

  2. The principal planning instrument controlling development on the Site was and remains Wingecarribee Local Environmental Plan 2010 (WLEP 2010). When the development application was made in November 2013, the Site was zoned B4 Mixed Use under WLEP 2010. The development sought by the applicant was then permissible with the consent of Wingecarribee Shire Council (the Council).

  3. On 28 March 2014 Wingecarribee Local Environmental Plan 2010 (Amendment No 13) (Amendment No 13) was purportedly made. The land to which that instrument related was confined to the Site. Amendment No 13 sought to rezone the Site so that any commercial or retail use was prohibited. It was Amendment No 13 that the Court of Appeal determined to be invalid.

  4. Wingecarribee Local Environmental Plan 2010 (Amendment No 38) (the Amending LEP or LEP 38) was made and published on the NSW legislation website on 16 October 2015. That was the date upon which “(t)his Plan” was expressed to commence: cl 2. Again, the only land to which the Amending LEP applied was the Site. By operation of cl 4 of the Amending LEP, the maps adopted by WLEP 2010 were “amended or replaced, as the case requires”. The amended maps showed the Site now to be zoned R3 Medium Density Residential. The Land Use Table to WLEP 2010 states that the use of land so zoned for “commercial premises”, defined in the Dictionary to include retail premises, is prohibited.

Wingecarribee Local Environmental Plan 2010

  1. The WLEP 2010 adopts the form of the “standard instrument” prescribed under the Standard Instrument (Local Environmental Plans) Order 2006 (the Standard Instrument Order) made pursuant to s 33A(1) of the EPA Act. Clause 1.1AA of WLEP 2010 addresses the commencement of that instrument in the following terms:

“1.1AA Commencement

This Plan commences on the day on which it is published on the NSW legislation website.”

The date upon which the instrument was first published on the legislation website was 16 June 2010.

  1. Under the Standard Instrument Order pertaining to local environmental plans that adopt the form prescribed by the Order, a number of provisions of such a plan are identified as being “compulsory”. One such provision is cl 1.1AA. Other provisions are “optional”. Clause 1.8A of WLEP 2010 falls into neither category. That clause provides:

“1.8A Savings provision relating to development applications

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.

Note. However, under Division 4B of Part 3 of the Act, a development application may be made for consent to carry out development that may only be carried out if the environmental planning instrument applying to the relevant development is appropriately amended or if a new instrument, including an appropriate principal environmental planning instrument, is made, and the consent authority may consider the application. The Division requires public notice of the development application and the draft environmental planning instrument allowing the development at the same time, or as closely together as is practicable.”

  1. Clause 1.7 of WLEP 2010 should also be noticed. Its inclusion in the instrument is made compulsory under the Standard Instrument Order. The clause relevantly provides:

“1.7 Maps

(1)   A reference in this Plan to a named map adopted by this Plan is a reference to a map by that name:

(a)   approved by the Minister when the map is adopted, and

(b)   as amended or replaced from time to time by maps declared by environmental planning instruments to amend or replace that map, and approved by the Minister when the instruments are made.”

  1. Section 74 of the EPA Act enables an environmental planning instrument to be amended by a subsequent instrument. I have earlier identified the full title of the Amending LEP. Clause 2 of the Amending LEP states that the “Plan” commences on the day on which it is published on the NSW legislation website. Clause 4 of the Amending LEP provides:

“4 Maps

The maps adopted by Wingecarribee Local Environmental Plan 2010 are amended or replaced, as the case requires, by the maps approved by the Minister on the making of this Plan.”

That clause must be understood in the context of cl 1.7 of WLEP 2010, the terms of which I have already quoted.

  1. Also to be noticed are the provisions of s 33A(6) of the EPA Act. By that subsection, where the standard instrument has been adopted as the form of the local environmental plan, that planning instrument, other than the compulsory provisions prescribed by the Standard Instrument Order, may be amended by another environmental planning instrument.

The competing responses of the parties to the separate question

  1. Each party acknowledges that the response to the separate question requires a determination as to whether the development proposed by the applicant’s development application in November 2013, in so far as it included development of the Site for “commercial premises”, is prohibited. The Council submits, for reasons that it articulates, the separate question should be answered:

“The development proposed by Development Application LUA 13/0968 lodged with the Wingecarribee Shire Council on 11 November 2013 is prohibited by the making of Wingecarribee Local Environmental Plan 2010 (Amendment 38).”

  1. The applicant submits, for reasons it articulates, that the question should be answered:

“Development Application LUA 13/0968 lodged with the Wingecarribee Shire Council on 11 November 2013 is saved by virtue of clause 1.8A of the Wingecarribee Local Environmental Plan 2010 or alternatively is not prohibited by the making of Wingecarribee Local Environmental Plan 2010 (Amendment No 38).”

Consideration

The Council’s contentions

  1. In providing their respective responses to the separate question, both parties have focused upon the proper construction of cl 1.8A of WLEP 2010. For its part, the primary submission of the Council is that cl 1.8A operates according to its terms. The clause identifies a fixed date by reference to which a development application that has been made, but not determined before that date, is saved from the operation of WLEP 2010, as the operative statutory instrument controlling development, when determining that application. The date at which the clause operates is 16 June 2010. A development application that has been made prior to, but not determined by, that date engages the clause. However, the clause is not engaged by any development application lodged after that date, no matter that the principal planning instrument is later amended but a development application made before the amendment operates remains undertermined. The Council identifies what it describes as two textual and two contextual markers for so contending.

  2. The first textual marker relied upon by the Council lies in the phrase “commencement of this Plan” as used in cl 1.8A. The meaning of that phrase is gained from cl 1.1AA. The latter clause identifies a single point in time at which the “Plan commences”, being the date on which it (the original Plan) is published on the legislation website.

  3. Although operating by way of amendment, the Amending LEP is a separate local environmental plan. By cl 2 of the Amending LEP, that “Plan commences” on the date upon which it is published on the legislation website. Obviously, it is a discrete date that differs from the commencement date identified by reference to cl 1.1AA of WLEP 2010. Neither cl 1.8A, nor any comparable provision, finds expression in the Amending LEP. As a consequence, cl 1.8A is only engaged when a development application has been made but remains undetermined on the date identified by reference to cl 1.1AA.

  4. The second textual marker relied upon by the Council arises from use of the phrase “commencement of this Plan” in each of cll 4.1 and 7.1 of WLEP 2010. Clause 4.1 (an “optional” clause under the Standard Instrument Order) is directed to minimum subdivision lot size. Subclauses (2) and (3) provide:

“(2)   This clause applies to a subdivision of any land shown on the Lot Size Map that requires development consent and that is carried out after the commencement of this Plan.

(3)   The size of any lot resulting from the subdivision of land to which this clause applies is not to be less than the minimum size shown on the Lot Size Map in relation to that land.”

  1. Clause 7.1 is a provision of WLEP 2010 directed to development on lots within certain zones. It is neither a “compulsory” nor an “optional” clause under the Standard Instrument Order. The clause relevantly provides:

“7.1 Development on existing lots in Zones R2, R3 and R5

(1)   This clause applies to lots in Zone R2 Low Density Residential, Zone R3 Medium Density Residential and R5 Large Lot Residential that were created before the commencement of this Plan …

(2)   Despite any other provision of this Plan, development consent may be granted for the erection of a dwelling house, dual occupancy development or multi dwelling housing on a lot to which this clause applies, if the development is permissible with consent on the land.”

  1. Reference is made to these clauses to found the submission that the phrase “commencement of the Plan” in each of them can only be a reference to a single point in time, namely that determined by reference to cl 1.1AA. It is submitted that there is no reason to read the same phrase in cl 1.8A in any different way.

  2. The first contextual marker upon which the Council relies to support its primary submission is the standardisation of local environmental plans directed to the format and the terms in which instruments are expressed. This is the consequence of the introduction of s 33A into the EPA Act and the Standard Instrument Order for local environmental plans made under subsection (1) of that section. For present purposes reliance is placed not only upon the standard form of instrument attached to the Order but also upon s 33A(8) that provides:

“(8)   The adoption of the provisions of a standard instrument in an environmental planning instrument is taken to be a matter of State environmental planning significance for the purposes of this Act.”

  1. Thus, so it is submitted, cl 1.8A of WLEP 2010 should be considered and construed in the context of the legislative aim of achieving consistency among local environmental plans made throughout the State. Attention is then given by the Council to the terms in which clauses similar to cl 1.8A are expressed in several local environmental planning instruments adopting the form of the standard instrument and applicable to other areas of the State. Those local environmental planning instruments identified by the Council not only contain the equivalent of cl 1.8A of WLEP 2010 as subclause (1) of the same numbered clause, but add a subclause (2), expressing, in differing terms, a savings provision in respect of any development application made but not determined before commencement of a nominated local environmental plan that amends the relevant principal planning instrument.

  2. The Council points to the manner of drafting the equivalent of cl 1.8A in those other local environmental plans in order to contend that the additional savings provision in subclause (2) of each of the identified instruments would be unnecessary unless subclause (1), being the totality of cl 1.8A in WLEP 2010, had the meaning for which it contends as to when “this Plan” commences. If cl 1.8A is construed in a manner that fulfils the object of standardising the text of local environmental plans, the interpretation fixing a single date for operation of the clause should be applied.

  3. The second contextual marker relied upon by the Council is the circumstance in which the Amending LEP was made. It was in substantially the same terms as Amendment No 13, being the amending instrument that was declared to be invalid. The latter instrument applied only to the applicant’s land in Bowral and sought to rezone that land to R3 Medium Density Residential by amending the maps first adopted by WLEP 2010. Like the present Amending LEP, Amendment No 13 did not, in terms, include any savings clause.

  4. Amendment No 13 was challenged on three grounds, two of which allege that notice of the planning proposal that was the precursor to the making of the instrument had not been given to the applicant or otherwise notified conformably with the legislative requirements. The third ground of challenge alleged that the delegate of the Minister who purportedly signed the amending instrument had not been lawfully delegated to perform that function. The challenge to validity in the Court of Appeal succeeded on the third ground of challenge only.

  5. The leading judgment in the Court of Appeal in De Angelis v Wingecarribee Shire Council was delivered by Sackville AJA (Macfarlan and Gleeson JJA agreeing). However, the Council places reliance upon additional remarks made by Macfarlan JA. His Honour addressed a submission that the applicant was denied procedural fairness because he was not informed that there would not be a savings provision in the amending instrument to ensure that the development application would be dealt with in accordance with the provisions of WLEP 2010 as they were prior to Amendment No 13 taking effect. In response to that submission his Honour observed at [5]:

“However, the fact that there would not be such a savings provision must have been obvious to the appellant and his advisors because they knew that the Amending LEP’s operation was to be confined to his site. To exempt the appellant’s Development Application from its operation would have rendered it futile.”

  1. Applying his Honour’s observations to the present Amending LEP, the Council submits that the making of that instrument would be rendered futile if cl 1.8A was construed as having an ambulatory operation. That circumstance, coupled with the absence of a savings provision in either Amendment No 13 or in the present Amending LEP, objectively demonstrate that the Amending LEP was not intended to save the applicant’s development application. However, according to counsel involved in the Court of Appeal hearing, the proper construction of cl 1.8A was not the subject of any submissions when the validity of Amendment No 13 was argued before the Court of Appeal.

  2. In further support of its last submission, the Council points to the circumstance that the applicant made representations to the Minister for Planning requesting that he include a savings provision in the Amending LEP. In response to that request, his Department wrote to the Council on 7 September 2015, “encouraging” it to include such a provision “to ensure the current development appeal can continue”. Despite those representations and the fact that a copy of the letter of “encouragement” from the Department of Planning and Environment to the Council was forwarded to Parliamentary Counsel, no such provision was included in the Amending LEP.

The applicant’s contentions

  1. The applicant accepts that the construction of cl 1.8A advanced by the Council is an available construction of the clause. However, he submits that is not the manner in which the clause should properly be construed. On the narrow construction for which the Council contends, the operation of the clause would be limited to a development application that was made before but not determined by 16 June 2010. Despite the fact that WLEP 2010 has been amended many times since June 2010, cl 1.8A remains unaltered. This circumstance suggests, so it is submitted, that it still has work to do. Whether that work extends beyond pre-June 2010 development applications that had not by then been determined is the issue.

  2. Subject to the operation of cl 1.8A, when giving effect to the provisions of ss 76A and 76B of the EPA Act, the permissibility or prohibition of proposed development is to be determined by reference to the applicable planning instrument, as it applies to the land the subject of the development application, at the date upon which that application is determined (The Dubler Group Pty Ltd v Minister for Infrastructure, Planning and Natural Resources [2004] NSWCA 424; 137 LGERA 178 at [20]). This has the consequence that in the absence of a savings provision such as cl 1.8A, an application for development that is both permissible and conforms with any other provision of an environmental planning instrument at the date upon which that application is made may not satisfy the requirement of permissibility if that planning instrument is amended between that date and the date upon which it is determined.

  3. As the Amending LEP in the present case operates to amend the maps adopted by WLEP 2010, so far as they apply to the Site, those two statutory instruments are to be construed conformably with the principles applicable to an Act that is amended by a later Act (Darkinjung Local Aboriginal Land Council v Wyong Coal Pty Ltd (No 2) [2014] NSWLEC 71; 202 LGERA 223 at [17]). The relevant principle is summarised in Pearce and Geddes, Statutory Interpretation in Australia, (8th Ed, LexisNexis) at [7.23]:

“The basic rule is that when any Act is amended by a later Act, the two are to be regarded as one connected and combined statement of the will of parliament: … ”.

  1. To similar effect are the observations of Bathurst CJ in R v Seller [2013] NSWCCA 42; 273 FLR 155 at [100] where the Chief Justice said:

“Where a statute is amended both the act which is amended and the amending act must be read together as a combined statement of the will of the legislature as a consequence of which the effect of the amending act may be to alter the meaning which the remaining provisions of the amended act bore before the making of the amendments.”

  1. The inclusion of a clause such as cl 1.8A in a local environmental plan is clearly intended to address the position that would otherwise obtain, requiring each development application to be determined upon the law that applies at the date of determination. The clause overrides that position, at least as it pertains to the introduction of planning controls introduced by the new planning instrument, provided the development in question otherwise engages the terms in which the clause is expressed. So much is consistent with the observations of Giles JA (Sheller and Santow JJA agreeing) in Dubler at [26].

  2. Expressed differently, a savings provision such as cl 1.8A alleviates, in the circumstances identified in the clause, exposure of an applicant for development consent to the effect of change in the planning regime after the application has been made. The applicant submitted that such a clause 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”. That submission is consistent with an observation to that effect by Giles JA in Dubler at [28].

  3. The applicant further submits that a provision directed to the purpose just identified should be given a beneficial construction so that it becomes ambulatory in its operation. Not only does it preserve the law applicable to the determination of a development application that had been made but not determined when WLEP 2010 first commenced, but the provision should also be interpreted as operating in respect of development applications that have been made but not determined at the time of amendment to that instrument.

  4. The applicant’s development application had been made but not finally determined when the Amending LEP was made. That is a necessary prerequisite to the operation of cl 1.8A if it is construed so as to protect undetermined development applications when the amendment commenced. Whether the clause is engaged in the present circumstances therefore necessitates consideration of the phrase “the commencement of this Plan” as used in that clause.

  5. The applicant submits that there is no reason to read the words “this Plan” as referring to the instrument as originally published on the legislation website in 2010. The phrase is not qualified by words of limitation such as “as originally made” or “first made”. This, so it is submitted, tends to support an ambulatory construction of the phrase.

  6. What constitutes “this Plan” is a time dependant concept. As at 16 June 2010 WLEP 2010 took a particular form. With multiple amendments having been made since that time (the number assigned to the Amending LEP would suggest some 38 amendments), the instrument presently takes a different form from that which it took in June 2010. Clearly, reference to “this Plan” at the present day necessitates reference to that planning instrument incorporating all of its amendments to date.

  7. In Ocean Road Motel Pty Ltd v Pacific Acceptance Corporation Ltd [1963] HCA 22; 109 CLR 276, the High Court considered whether a reference in legislation to “this Act” that had been amended could be construed so as to refer to the Act as in force from time to time. Taylor J (Owen J agreeing) said (at 280):

“ … in my view, it is not open to question that where by amendment a new provision is inserted into a principal Act and that provision speaks of “this Act” it speaks of the whole Act of which from the time of amendment it forms part and, of course, of the Act in the form which it may from time to time thereafter assume.”

  1. The statement by Taylor J in that case is apt to be applied in the present case. Although the phrase “this Act” being considered in that case was inserted by the amending legislation rather than a phrase that appeared in the principal Act, from the time of enactment, the concluding part of the quoted passage would support the application of his Honour’s statement of principle to the present circumstance. That is, reference in cl 1.8A to “this Plan” should be construed as a reference to the provisions of WLEP 2010, as amended at any given point in time.

  2. That construction also follows from the principle, earlier identified, requiring that the principal statutory instrument and the amendment made to it be read as a combined statement of the will or intent of the lawmaker. The “commencement” of WLEP 2010, in its amended form, must be a reference to the date of commencement of the amending instrument. Relevantly, that date was 16 October 2015.

  3. The date on which the amendment commenced must also be the date of commencement for the purpose of cl 1.8A. That follows for two reasons. First, reference to “this Plan” in the phrase “before commencement of this Plan” as expressed in the clause must, for reasons earlier stated, properly be construed as a reference to the instrument as amended. Second, although the Amending LEP is a separate planning instrument, its only operative effect is to amend WLEP 2010. Indeed, it has no work to do other than to amend the maps adopted at the time at which WLEP 2010 was made.

  4. Thus, so it is submitted, cl 1.8A operates to “save” the development application made by the applicant in November 2013, being an application that was made before the commencement of WLEP 2010 as amended by the Amending LEP.

  5. Further, the statutory context in which local environmental plans are made that adopt the standard instrument is relevant to the construction for which the applicant contends. Reference has earlier been made to s 33A(6) of the EPA Act by which an environmental planning instrument that adopts the standard instrument may be amended by another planning instrument, save in respect of those provisions that, by reference to the standard instrument, are compulsory. The express sanctioning of amendment to such an instrument carries with it the necessary implication that, absent a contrary intention, a reference to the adopted instrument will be a reference to it as it may be amended at any given point in time.

  6. Further support for the submission that the application is “saved” by cl 1.8A is said to be found in the note to cl 1.8A of WLEP 2010, as published on the legislation website (quoted at [9] above). While notes do not form part of WLEP 2010 (cl 1.5), they may nonetheless “provide some guidance” to the intent of the drafter (Marrickville Metro Shopping Centre Pty Ltd v Marrickville Council [2009] NSWLEC 109 at [46]). The applicant submits that the note would be unnecessary if cl 1.8A was limited in its operation so as to apply only to a development application that had been made but not finally determined when WLEP 2010 commenced in June 2010. Particularly is this the case as the word “[h]owever”, being the commencing word of the note, identifies a qualification to the provisions of the clause by drawing attention to a mechanism by which the planning instrument may be “appropriately amended.”

  7. Finally, the applicant submits that while ordinary principles of statutory interpretation are to be applied when construing a local environmental plan, regard is to be had to the nature of the statutory instrument being interpreted. Relevantly, a local environmental plan should be construed with practical considerations in mind. Support for that proposition is found in the observations of Leeming JA in Tovir Investments Pty Ltd v Waverley Council [2014] NSWCA 379 where his Honour said at [54]:

“Lord Reid said in Gill v Donald Humberstone & Co Ltd [1963] 3 AllER 180 at 183 that the regulations in that appeal ‘ought to be construed in the light of practical considerations, rather than by a meticulous comparison of the language of the various provisions, such as might be appropriate in construing sections of an Act of Parliament’. Decisions applying that reasoning may be found in Marina Bay Developments Pty Ltd v Pittwater Council [2007] NSWLEC 41.”

  1. The practical considerations there referred to should be extended to the construction of a planning instrument that has been amended. It is not inconsistent with the application of practical considerations that cl 1.8A should be construed so that a development application that has been made after June 2010 but prior to an amendment to WLEP 2010 commencing or taking effect, should be determined by reference to the provisions of that instrument as they were immediately before that amendment commences or takes effect.

The applicant’s submissions should be accepted

  1. I accept the applicant’s submission that his development application is saved by cl 1.8A of WLEP 2010 and is to be determined as if the Amending LEP had not commenced. I do so substantially for the reasons that the applicant has advanced in his submissions as I have summarised them. In particular, reading the phrase “this Plan” in cl 1.8A as a reference to the planning instrument, as amended from time to time, not only accords with the dictum of Taylor J in Ocean Road Motel Pty Ltd v Pacific Acceptance Corporation Ltd but also gives effect to the principle earlier identified that both the original instrument and the amendments to it should be read as reflecting the combined will of the lawmaker.

  2. The only relevant amendment to WLEP 2010 that had not been made when the applicant’s development application was made in November 2013 was the Amending LEP. Without doing violence to the language and the apparent intent of cl 1.8A, the interpretation that I favour results in the clause being applied as if it read:

‘If a development application has been made before the commencement of this Plan, as amended by Wingecarribee Local Environmental Plan 2010 (Amendment No 38), in relation to land to which this Plan as amended applies and the application has not been finally determined before commencement of this Plan, as amended by Wingecarribee Local Environmental Plan 2010 (Amendment No 38), the application must be determined as if this Plan, as so amended, had not commenced.’

  1. So understood, cl 1.8A operates to “alleviate the exposure to amendment” of WLEP 2010 after a development application had been made (Dubler [26]). The clause enables the consent authority or the Court, on appeal under s 97 of the EPA Act, to determine such a development application as an exercise of planning discretion under s 80 of the EPA Act rather than compel its refusal should the amendment prohibit the purpose of development for which the application was made.

  2. That interpretation of cl 1.8A gives to the clause an ambulatory operation. So interpreting the clause is consistent with the provisions of cl 1.7, expressly directed to the amendment of a map adopted by the planning instrument. The map or maps so adopted are fundamental to the operation of WLEP 2010, as the present case illustrates. By amendment to the zoning map, the land use controls applicable to a given parcel of land may change significantly. While that change may, in a given case, be a windfall for a landowner, equally an amendment to the map may have the effect of diminishing the value of other land upon which a higher order of land use was permissible before amendment of the instrument. While that is a consequence against which there is usually no legislative protection, the particular circumstance that a development application has been made before an amendment having such a significant consequence is a circumstance for which a provision such as cl 1.8(A) might be expected so as to preserve the pre-amendment status quo when determining that particular development application.

  3. The circumstance that cl 1.8A operates only to preserve a development application that has been made but not finally determined before amendment, requiring the determination of that development application as if the amendment had not commenced, adequately responds to the Council’s submission that the making of the Amending LEP would be an exercise in futility unless cl 1.8A was limited in its operation to a development application made but not finally determined on 16 June 2010. While the interpretation that I favour would allow the applicant’s development application to be determined as if the Amending LEP had not commenced, any new or different development application for the Site would require determination by applying the provisions of WLEP 2010 as amended by LEP 38. Moreover, the circumstance that LEP 38 has been made but is taken not to have commenced does not render it entirely irrelevant to the determination of the applicant’s present development application (Maygood Australia Pty Ltd v Willoughby City Council [2013] NSWLEC 142 at [29]).

  4. Reliance by the Council upon the textual markers of cll 1.1AA, 4.1 and 7.1 in WLEP 2010 does not detract from my interpretation of cl 1.8A. While cl 1.1AA was necessary to identify the original commencing date of the planning instrument, that fact does not gainsay an ambulatory operation being given to cl 1.8A. Clearly, WLEP 2010, as amended by LEP 38, “commenced” as a comprehensive planning instrument only when LEP 38 itself commenced.

  5. By parity of reasoning, cll 4.1 and 7.1 do not provide the textual support for which the Council contends. Effect can properly be given to each clause by notionally inserting the words “as amended” after the phrase “this Plan” without detracting from the meaning or intent of either clause.

  6. The Council’s reliance upon the standardisation of local environmental planning instruments as providing contextual support for the interpretation of cl 1.8A for which it contends is, to my mind, misplaced. The extent to which the provisions of a local environmental plan are required to be in the form of the standard instrument, as prescribed by the Standard Instruments Order, are specifically identified in the Standard Instrument attached to that Order. As I have earlier stated, cl 1.8A of WLEP 2010 is neither a compulsory provision or even identified as the form of an optional provision. Further, cl 5 of the Standard Instrument Order provides that a local environmental plan may include “additional provisions” to those expressed in the prescribed form: cl 5(1).

  7. Importantly, the terms in which an additional provision may be framed is not the subject of any prescription in the Standard Instrument Order provided it is not inconsistent with a compulsory provision. There is no statutory or regulatory imperative requiring “additional provisions” to be in a standard or particular form. Indeed, those examples of provisions in miscellaneous local environmental planning instruments relied upon by the Council amply demonstrate that savings provisions of the kind reflected in cl 1.8A of WLEP 2010 are not expressed in common or “standard” terms. Reference to the provisions of other statutory instruments does not, in the present circumstance provide any assistance to the proper construction of cl 1.8A.

  8. In short, the extent to which the provisions of local environmental plans are required to be in a standard form is the subject of express direction in the statutory regime. The notion of standardisation, particularly as a tool in the process of interpretation, cannot be extended beyond those provisions of a local environmental plan that the regime requires to be in “standard” terms.

  9. The provisions of s 33A(8) to which I have referred at [21] do not detract from the conclusion last expressed. The subsection identifies the adoption of the provision of a standard instrument as a “matter of State environmental planning significance.” As “additional provisions” are contemplated without any prescription as to their form or content, beyond requiring that they not be inconsistent with a compulsory provision of the standard instrument, necessarily has the consequence that such an additional condition does not engage any perceived requirement for standardisation. There is no standard provision by reference to which it is to be construed.

Conclusion and orders

  1. For the reasons I have given, the mixed use development that is the subject of the applicant’s development application made in November 2013 is not prohibited by the making and commencement of the Amending LEP. That conclusion is the result of properly construing the provisions of cl 1.8A of WLEP 2010.

  2. Accordingly the separate question posed for determination and the answer to it together with the consequential orders I make, are as follows:

1.  Question: Whether Development Application LUA13/0968 lodged with Wingecarribee Shire Council on 11 November 2013 is saved by virtue of clause 1.8A of the Wingecarribee Local Environmental Plan 2010 or whether it is prohibited by the making of Wingecarribee Local Environmental Plan 2010 (Amendment No 38).

Answer: The development for which development consent is sought in Development Application LUA13/0968 lodged with Wingecarribee Shire Council on 11 November 2013 is not prohibited by the making of Wingecarribee Local Environmental Plan 2010 (Amendment No 38) and by operation of cl 1.8A of Wingecarribee Local Environmental Plan 2010 that Development Application must be determined under the provisions of the Environmental Planning and Assessment Act 1979 as if Wingecarribee Local Environmental Plan 2010 (Amendment No 38) had not commenced.

2.  Stand over the proceedings to the Registrar’s List on Tuesday 16 February 2016 for directions.

3.  Exhibits may be returned.

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Amendments

17 May 2016 - Added Cases Texts Cited to Coversheet

Decision last updated: 17 May 2016

Citations

De Angelis v Wingecarribee Shire Council [2016] NSWLEC 1

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