Posted on February 15, 2016 by Megan Hawley

LEP Savings Clauses

The Land & Environment Court has clarified further how to apply savings clauses in local environmental plans (LEPs) to development applications (DAs) made but not determined before the LEP is made or amended.

In De Angelis v Wingecarribee Shire Council [2016] NSWLEC 1, the Court considered clause 1.8A of the Wingecarribee Local Environmental Plan 2010 (LEP 2010) which reads as follows:

‘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.

We have previously blogged here about whether a LEP could be ignored in the assessment of a development application , if a savings clause in the LEP applies to the development application, such that the application is determined as if the LEP had not commenced.

The Land & Environment Court in De Angelis has confirmed that the LEP is still a relevant consideration in the determination of the DA in those circumstances as s79C of the Environmental  Planning & Assessment Act 1979 requires a draft local environmental plan to be considered, and that is how the relevant LEP is to be treated.

The main issue in the case, however, involved  how such savings clauses operate in respect of LEP amendments.

Mr De Angelis’ DA was made after LEP 2010 commenced, but before an amendment to LEP 2010 (being Amendment N0. 38) commenced. The effect of Amendment No. 38 was to prohibit Mr  De Angelis’ development.

The Court had to consider whether clause 1.8A in LEP 2010 itself (rather than a savings clause in Amendment No. 38) applied so that LEP 2010 as amended by Amendment No. 38 did not apply to the DA.

Council argued that the words ‘this Plan’ in clause 1.8A referred to LEP 2010 as originally made. This would mean that Mr De Angelis’ DA was made after the commencement of ‘this Plan’ and the savings clause would not apply to the DA. The result would be that LEP 2010 as amended by Amendment No. 38 would apply to the DA and prohibit the development.

This argument was rejected by the Court. The Court held that the words ‘this Plan’ in the savings clause means the Plan as it currently is, including all amendments. That is ‘this Plan‘, should be read as ‘this Plan as amended by Amendment No. 38’.

As Mr De Angelis had lodged his DA before the commencement of Amendment No. 38, the clause applied to the DA so that the DA was determined as if Amendment No. 38 had not commenced.

The decision gives savings clauses in LEPs an ambulatory meaning, that is, the commencement date referred to in the clause will change over time to reflect amendments to the LEP.

As stated above, though, Amendment No. 38 would still be relevant to the consideration of the DA, as a draft LEP.

The case was limited to consideration of the interpretation of the savings clause, and did not go on to determine, on the merits, how the consideration of Amendment No. 38 as a draft LEP would impact on Mr De Angelis DA. There is precedent for refusing consent to a development application where a  draft LEP, the making of which is certain and imminent, prohibits the development the subject of the development application.