The Dubler Group Pty Ltd v Minister for Infrastructure, Planning and Natural Resources

The Dubler Group Pty Ltd appealed to the New South Wales Court of Appeal against orders of the Land and Environment Court dismissing its application for development consent. The dispute concerned the application of amendments to State Environmental Planning Policy No 53 – Metropolitan Residential Development to a development application lodged prior to the amendments' commencement. The Minister for Infrastructure, Planning and Natural Resources was the respondent.

The primary legal issue before the Court of Appeal was whether the amendments to State Environmental Planning Policy No 53, which had the effect of preventing the grant of consent for the applicant's proposed dual occupancy development, applied to a development application lodged before the amendments came into force. This involved determining whether the applicant had acquired a vested right upon the lodgment of its development application, which would be protected from retrospective application of the new provisions.

The Court of Appeal held that the applicant had acquired a vested right upon the lodgment of its development application. Applying the principle that amendments to environmental planning instruments do not affect vested rights unless expressly stated, the Court found that the new provisions did not apply to the determination of the applicant's pre-existing application. The Court reasoned that the lodgment of a development application creates a right to have that application determined according to the law in force at the time of lodgment, absent clear legislative intent to the contrary.

Consequently, the Court of Appeal allowed the appeal, set aside the orders of the Land and Environment Court, and declared that the relevant provisions of State Environmental Planning Policy No 53 did not apply to the determination of the applicant's development application. The respondents were ordered to pay the appellant's costs of the proceedings in the Land and Environment Court and the appeal, with a minor exception regarding the costs of a specific notice of motion.