Wingecarribee Shire Council v De Angelis

Wingecarribee Shire Council appealed to the Court of Appeal of New South Wales against an interlocutory decision of a judge of the Land and Environment Court. The dispute concerned a development application lodged by Mr De Angelis with the Council. The application was lodged prior to an amendment to the Wingecarribee Local Environmental Plan 2010 (the LEP). Following the amendment, the development proposed in the application became prohibited under the relevant land zoning. The central issue was whether a savings provision within the LEP operated to allow the application to be determined as if the amendment had not commenced.

The court was required to determine the proper construction of clause 1.8A of the Wingecarribee Local Environmental Plan 2010, specifically whether the phrase "this Plan" in that clause referred to the LEP as originally published or included subsequent amendments. This involved considering whether the savings provision had an ambulatory effect, meaning it applied to the LEP as it stood at the time of the development application's lodgement, or as it was amended. The court also had to determine whether the development application was prohibited under the zoning introduced by Amendment No 38 to the LEP.

The Court of Appeal held that clause 1.8A of the LEP did not apply to the development application lodged by Mr De Angelis. The court reasoned that the savings provision was not intended to have an ambulatory effect in the manner argued by the respondent. Instead, it was interpreted as referring to the LEP as it existed at the time the provision itself came into effect. Consequently, the court found that the development application was prohibited under the zoning introduced by Amendment No 38 of the LEP.

The Court of Appeal granted the Shire Council leave to appeal, allowed the appeal, and set aside the answer given by the primary judge. The court substituted its own answer, finding that clause 1.8A had no application and that the development was prohibited. The matter was remitted to the Land and Environment Court, and the respondent was ordered to pay the Council's costs.