Posted on May 30, 2023 by Megan Hawley and Samantha Hainke

Deadlines in Gateway Determination do not effect validity of LEP

In a recent decision the Land & Environment Court considered a range of challenges to various decisions arising from a planning proposal to rezone land by amending the Bega Valley Local Environmental Plan 2013 (Amending LEP). The proceedings were brought by landowners whose land was proposed to be included in environmental zones by the planning proposal. They challenged the decision of the Minister’s delegate to make a gateway determination under s56(2) of the Environmental Planning & Assessment Act 1979 (EPA Act) (as it then was), the decision by the Secretary of the Department of Planning to ‘endorse‘ the planning proposal, and the Council’s decision to support the Amending LEP and request the Minister make the Amending LEP.

All grounds of challenge were dismissed by the Court.  Of interest is that the Court did not find the decision of the Council to support the Amending LEP invalid despite it being made a significant period of time after the deadline specified in the gateway determination.

Deadline in Gateway Determination

It is common for gateway determinations which enable a council to proceed to public exhibition of a planning proposal to contain deadlines by which certain matters, sometimes including the making of the proposed planning instrument, need to be complete.

It is also common for a council to seek extensions of the deadlines in a gateway determination.

In this case, the gateway determination required certain conditions to be satisfied by a specific date. The Council sought an extension but a significant time after the deadline passed. The extension was not granted. However the Council proceeded to make a decision to support the Amending LEP and request that the Minister make the Amending LEP.

The proceedings were commenced before the Amending LEP was made and sought to restrain its making.

The Court found that s 56(8) (now s3.34(8)) of the EPA Act was a complete answer to this ground of challenge.

Section 3.34(8) provides that:

‘A failure to comply with a requirement of a [gateway] determination under this section in relation to a proposed instrument does not prevent the instrument from being made or invalidate the instrument once it is made. However, if community consultation is required under Schedule 1, the instrument is not to be made unless the community has been given an opportunity to make submissions and the submissions have been considered under that Schedule.’

This section was found to apply to the requirement that certain matters be undertaken within a certain period of time, and to protect the validity of Council’s decision to support the Amending LEP. It could be assumed that if the Amending LEP had been made, it similarly would not have been invalid for a failure to be made within the time specified in the gateway determination.

Of course, whilst the validity of the resulting planning instrument might not be an issue if the deadlines in the gateway determination are not met, it would still be necessary to persuade the Minister to make the instrument, despite those deadlines not having been met. Councils should therefore not assume that any such deadlines can be ignored.

Other challenges

One of the other challenges was that the applicants were denied procedural fairness as they claimed the Council had represented that it would provide an ecological report they had prepared to the Department of Planning & Environment, and the report was not provided.

The Court referred to earlier authority that the Council’s obligations to notify and consult with the applicants was limited to the obligations contained in Part 3 of the EPA Act. The Court found those obligations to have been met, and the failure to provide the report to the Department did not constitute a denial of procedural fairness.

A further ground of challenge was that the planning proposal did not satisfy the requirements for a planning proposal in the EPA Act as it failed to set out the justification for the Amending LEP. The Court found that the planning proposal did contain the justification required by the EPA Act.

Another ground of challenge was based on the fact that the gateway determination contained conditions (as they commonly do). The Court dismissed this challenge and confirmed that in accordance with orthodox principles of statutory contribution, the Minister can determine that the planning proposal can proceed subject to conditions.

The applicants also failed in their arguments that both the Council and the Secretary failed to take into account relevant considerations.

The case can be found here .

If you have any questions about this blog post, please leave a comment below or contact Megan Hawley on 02 8235 9703