Posted on December 4, 2012 by Megan Hawley 1

More on savings provisions

Further to our blog on the effect of savings provisions in planning instruments on existing use rights, a Commissioner of the Land & Environment Court has also considered the proper interpretation of the savings provision in cl1.8A of the The Hills Local Environmental Plan 2012 (Hills LEP) in Alamdo Holdings Pty Limited v The Hills Shire Council [2012] NSWLEC 1302

The savings provision reads:

‘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‘.

This provision differs from that which the Court of Appeal considered in Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) 129LGERA 195 which was to the effect that development applications must be determined as if the plan had been exhibited but not made.

Section 79C(1)(a)(i) of the Environmental Planning & Assessment Act 1979 (Act)  requires the provisions of any environmental planning instrument to be considered by a consent authority in determining a development application. Section 79C(1)(a)(ii) requires that proposed planning instruments which have been the subject of public consultation must also be taken into consideration.

The Court of Appeal in Terrace Tower recognised the long line of cases in the Land & Environment Court to the effect that where the coming into force of the proposed instrument was ‘certain or imminent’, the consent authority, in giving consideration to that instrument, was entitled to give it significant weight.

The effect of the savings provision in the instrument being considered in Terrace Tower was that the instrument was to be considered as being a proposed instrument which had been the subject of consultation, as it was to be treated as though it had been exhibited but not made. Because it had in fact been made, it could be considered that its making was certain and imminent, and it could therefore be given significant weight.

The Court in Alamdo distinguished Terrace Tower. The Court noted that the Council had specifically removed the words ‘had been exhibited’ from the savings clause in this case. So the savings clause itself did not specify that the instrument was to be treated as a proposed instrument. The Court considered that the removal of those words from the savings provision must have been intended to have some effect.

The Court accepted the Applicant’s arguments that because the LEP had to be treated as if it had not commenced, it could not be considered at all under s79C because:

• it could not be considered under s79C(1)(a)(i) as the savings clause was to the effect that it had to be treated as though it had not commenced;  and
• it could not be considered under s79C(1)(a)(ii) as  it was not in fact a proposed instrument (being one that had already been made), and the savings clause did not say it should be treated as such.

The Court also said the following in respect of the requirement to consider the public interest under s79C:

‘I agree with the applicant that [the LEP] has no legal status for this application. Despite that it is a consideration under s 79C (1) (e) as part of the public interest however, in accepting that I must have regard to the words in the savings provision in cl1.8A that removes it from consideration.’

This appears to be an attempt by the Commissioner to follow the approach taken by Cowdroy J of the Land and Environment Court in the proceedings which gave rise to Terrace Tower.  Cowdroy considered the relevance of a draft state environmental planning policy (SEPP) which contained a savings clause which did not require the draft SEPP to be treated as exhibited but not made. Cowdroy held that the draft SEPP remained a relevant consideration as part of the public interest under s79C(1)(e), but he gave it no weight, as he considered that to give it weight would be to elevate the significance of the draft instrument above that it would have once commenced.

I am not persuaded by the Commissioner’s decision. The Commissioner has read the clause as meaning that the LEP must be treated as if it never existed. However, all the clause requires is that it is treated as not having been made.

One could argue that the clause in this case is no different to the clause in Terrace Tower, as all that one is to ignore is the actual commencement of the instrument. If that is the only step in the process of making the instrument which is ignored, then one is left with a draft instrument which has been exhibited. On this analysis, Terrace Tower would apply to permit the consent authority to consider the provisions of the instrument under s79C(1)(a)(ii).

The judgment indicates that the Council argued that Terrace Tower applied, although the Council’s reasoning is not set out.

I am also of the view that the Commissioner’s reliance on the wording of a previous draft of the instrument to aid her interpretation may not have been appropriate.

It should be noted that the decision  in Alamdo is a decision of a Commissioner of the Court, and is therefore not binding on the other Commissioners or judges of the Court.