Posted on June 4, 2015 by

Variations to Planning Proposals

A recent decision of the Land and Environment Court has considered the scope of councils’ powers to vary a planning proposal once community consultation has been completed. The decision represents the first case to assess the current statutory scheme for variations to a planning proposal which, despite being in place since 2009, has not previously been considered by the courts.

The case makes it clear that community consultation requirements retain their significance in the plan-making process, and the scope to vary proposals without further consultation is not unlimited.

Background to the decision

Save Little Manly Beach Foreshore Incorporated v Minister for Planning (No 3) [2015] NSWLEC 77 (Save Little Manly Beach Foreshore Incorporated (No 3)) involved a challenge to a local environmental plan (LEP) that rezoned a parcel of Council-owned land in Manly, being No. 38 Stuart Street, Manly (Land).

The exhibited planning proposal also proposed the rezoning of two adjoining parcels of land, being Nos. 34 and 36 Stuart Street. The planning proposal was amended to delete references to Nos. 34 and 36 in response to an earlier decision in the Land and Environment Court to the effect that that land was still community land: see our earlier post Court prevents sale of community land in Manly.

The applicant’s case

The essence of the applicant’s case was that the statutory scheme for plan-making attributes such importance to public participation that the requirement for community consultation in s. 57  of the Environmental Planning & Assessment Act 1979 (EPA Act) operates as a primary provision, and the “variation powers” in ss. 56 and 58 must accordingly yield to this provision. This is despite s. 58 allowing variations for any reason, and only requiring community consultation if required by the Minister.

The applicant cited numerous cases decided in respect of the statutory scheme for plan-making that had pre-dated the 2009 amendments.

Comparison of the former and current statutory scheme for variations to planning proposals  

Justice Pain compared the former and current provisions of Part 3 of the EPA Act and noted the following differences:

• Under the old scheme, a planning authority was required to publicly exhibit a draft LEP whereas now only an explanation and justification of the proposed instrument (the planning proposal) need be exhibited and the detailed drafting of the LEP occurs at the end of the process and after consultation;
• The old scheme set down detailed mandatory provisions for public exhibition and notification whereas now the community consultation requirements are determined as part of the gateway determination: see our earlier post Challenge to LEP dismissed; and
• Under the old scheme a variation to a draft LEP had to be related to a matter raised in a public submission. The current regime allows a variation as a consequence of a public submission or for any other reason.

Decision

Justice Pain noted the greater flexibility under the current scheme but said that that ‘[g]reater flexibility does not undermine the importance of community consultation in the statutory scheme.‘

She went on to hold that the earlier cases decided in respect of the pre-2009 scheme continued to apply. Those cases were to the effect that the power to amend a draft LEP after exhibition is confined by the need for the ultimate plan to be the outcome of the process which included the public exhibition. If the ultimate plan was so different from the exhibited plan in some important respect that if could be said to be a quite different plan, then it would be invalid: see Friends of Turramurra Inc v Minister for Planning [2011] NSWLEC 128 at [158] and Leichhardt Council v Minister for Planning [No 2] (1995) 87 LGERA 78. 

This decision would mean that even if the Minister did not require any additional exhibition after a planning proposal was varied, the resulting LEP could still be challenged if it was different in important respects from the exhibited planning proposal.

However, where amendments are relatively minor in terms of character, substance and legal effect, there may be ‘no relevant difference’ and the LEP will be valid, even if it has been varied from the exhibited planning proposal.