Posted on June 14, 2015 by

Variations to Planning Proposals – An Update

Hard on the heels of the first case to consider legislative amendments to the scheme for variations to planning proposals, the Land and Environment Court (Court) has delivered a further judgment dealing with this issue.

The case of Ryan v The Minister for Planning [2015] NSWLEC 88 (Ryan), which involved a challenge to the making of the Lismore Local Environmental Plan 2012 (Amendment No 3) (LEP Amendment), ultimately followed the approach of Pain J in Save Little Manly Beach Foreshore Incorporated v Manly Council (No 3) [2015] NSWLEC 77 (Save Little Manly). For an analysis of Save Little Manly, see the earlier post: Variations to Planning Proposals.

Two key findings of Pain J in Save Little Manly in relation to the LEP making process under Part 3, Division 4 of the Environmental Planning and Assessment Act 1979 (NSW) were reiterated in Ryan as follows:

• A planning proposal will be valid where it can be said that there is no “material” difference between the proposal that was exhibited and subsequently made;
• Whether a difference is “material” will be a question of fact and degree in light of the particular circumstances of the case;
• Where there is a material difference, the planning proposal is “not a product of the process” set out in Part 3, Division 4 of the EPA, and as such is invalid.

In contrast to Save Little Manly, Ryan involved facts that led the Court to find that the LEP was not a product of the  plan making process which had been followed.

The relevant facts in Ryan are summarised as follows:

• The exhibited planning proposal set out proposed zoning changes to the area known as the North Lismore Plateau (Land);
• A considerable portion of the Land, approximately 28.5%, was proposed to be rezoned from 1(a) General Rural and 1(d) Investigation to E2 Environmental Conservation and E3 Environmental Management (Proposed Environmental Zones);
• When made, the local environmental plan did not rezone any of the Land to be within the Proposed Environmental Zones;
• The part of the Land originally proposed to be within the Proposed Environmental Zones retained its original rural zoning.

The Court decided that the fact that none of the Land was rezoned to be within the Proposed Environmental Zones meant that the “product” (the plan as made)  was materially different from the exhibited proposal.

The Court emphasised how the public submissions made in relation to the exhibited proposal would have been impacted by the rezoning of part of the Land to the Proposed Environmental Zones. In particular, it ‘would have been reasonable for the public to assume, on the basis of the exhibited proposal, that the land proposed for environmental zones would be subject to strict controls associated with that zoning.’ The legal and practical consequences of the Land retaining its rural zoning meant that the amended proposal had a ‘significantly different character, substance and legal effect’ to the exhibited proposal.

Despite differing sets of facts, the cases of Save Little Manly and Ryan equally illustrate the continuing relevance of the public exhibition requirements in the plan making process, and the limitations on variations which can be made without further public consultation.