Posted on September 16, 2013 by Stuart Simington 1

Court corrects ‘absurd’ interpretation of standard LEP transitional provisions

The Land and Environment Court has overturned a line of authority that one particular form of transitional provision in standard local environmental plans (LEP) has the effect of making those instruments largely irrelevant to the determination of development applications lodged in the period before the LEP has commenced – and even if those LEPs have actually been made.

Maygood Australia v Willoughby City Council [2013] NSWLEC 142 represents a sensible return to the well-established principle set out in Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195 to the effect that an LEP made after the lodgement of, but before the determination of a development application, will by virtue of the transitional provision, be considered under s79C of the Environmental Planning and Assessment Act 1979 (‘EPA Act’) as a ‘proposed’ instrument.

Section 79C(1)(a)(ii) of the EPA Act requires a consent authority when determining development applications to take into consideration any ‘proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Director-General has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved)…‘

In allowing the appeal, Pepper J set aside the line of authority since Dixon C in Alamdo Holdings Pty Limited v The Hills Shire Council [2012] NSWLEC 132.

Dixon C determined that the Willoughby Local Environmental Plan 2012 (WLEP 2012) was not to be considered under s79C(1)(a)(ii) of the EPA Act (even though that instrument had actually been made) because of cl 1.8A of the WLEP 2012 which provided:

‘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 [Emphasis added].

Dixon C considered that WLEP 2012  was neither to be considered to be an instrument which had been made, nor as a proposed instrument.

Dixon C came to that conclusion because she distinguished the oft cited reasoning of the Court of Appeal in Terrace Tower Holdings in finding that the transitional provision in that case was materially different. It had directed the determining authority to apply the recently made LEP ‘as if this plan had been exhibited but had not been made‘.

In Maygood, Pepper J recognised that she was not required to follow Alamdo, or any of the cases adopting its reasoning, because those were all decisions of Commissioners of the Court and therefore that no issue of judicial comity arose. Her Honour nevertheless felt that ‘cautious consideration’ should be given before overturning the line of authority stemming from Alamdo.

Ultimately, however, her Honour did overturn Alamdo and allowed the appeal against Tuor C’s decision, for the following reasons:

• the difference in terminology (i.e. between the transitional provision in WLEP 2012 and that considered in Terrace Tower Holdings) does not warrant the different construction given to the provision by Dixon C and other commissioners,
• properly construed, the effect of cl 1.8A is to ‘fictitiously set the WLEP 2012 back to a point in time immediately before its commencement’ thereby requiring it to be considered as a ‘proposed instrument’ under s79C(1)(a)(ii),
• no legislative intention had been evinced to give the provision in WLEP  2012 a different effect to that considered in Terrace Tower Holdings; rather the different terminology in WLEP 2012 harmonises the provision with the current community consultation requirements of the EPA Act which no longer refer to the need for ‘exhibition’,
• the construction given to cl 1.8A by Tuor C would effectively give either that clause, or s79C(1)(a)(ii) no work to do, and
• the construction of cl 1.8A given by Tuor C resulted in absurdity – it would  lead to the result that an instrument that had commenced (and thus was captured by cl 1.8A) would be deemed less relevant to the determination of a development applicant than an instrument that had not yet commenced.

It now seems clear that the Court will construe transitional provisions  in LEPs in line with the authority in Terrace Tower Holdings, whether those provisions are in the same terms as that considered in Terrace Tower Holdings, or take the form of that considered in Alamdo and Maygood.

LEPs containing such provisions must be considered as ‘proposed instruments’ under s79C(1)(a)(ii) of the EPA Act and, in line with the authority in Terrace Tower Holdings, are entitled to be given significant weight where they are ‘certain and imminent‘. It must be remembered, however, that the weight actually given to any such draft LEP is always a matter for the consent authority acting reasonably.