In the case of Maygood Australia Pty Ltd v Willoughby City Council  NSWLEC 142 (Pepper J), the L&E Court considered the construction of the savings provision (clause 1.8A) in the standard template Local Environmental Plan.
Clause 1.8A of the standard template LEP provides as follows (emphasis added):
“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”
Section 79C (Evaluation) of the EP&A Act provides as follows:
“(1) Matters for consideration—general
In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application:
(a) the provisions of: … (ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Director-General has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), …”
The Applicant appealed from a Commissioner’s decision reviewing the deemed refusal of the Applicant’s DA. The basis for the appeal was that the Commissioner had committed an error of law by misconstruing cl 1.8A of the Willoughby Local Environmental Plan 2012 (“the 2012 LEP“).
Maygood’s DA sought consent to refigure a ninth level and add a tenth level to an approved residential apartment building. Maygood appealed the council’s deemed refusal on 19 December 2012. On 31 January 2013, the 2012 LEP was gazetted, repealing the Willoughby Local Environmental Plan 1995 (“the 1995 LEP“), which provided for a maximum height limit of nine stories. Under the 2012 LEP the additional floor would have been permitted. On 4 March 2013 the council determined the DA by refusal and Maygood appealed this decision to the Court.
The Commissioner’s findings
In the first instance before Commissioner Tour, the Council relied on an earlier decision of the Court in Alamdo Holdings Pty Limited v The Hills Shire Council  NSWLEC 1302 to submit that no weight should be given to the 2012 LEP because the application of cl 1.8A deemed it irrelevant. In dismissing the appeal, the Commissioner followed Alamdo and assessed the development against the 1995 LEP standards against which the development was not compliant.
Findings on Appeal
Justice Pepper allowed the appeal and set aside the decision of Tuor C. The Court’s reasoning was as follows:
- Alamdo should not be followed, on the bases that, first, the words “as if this Plan had not commenced” did not mean ‘as if this Plan had not existed’. No such proscription was mandated by the change in terminology, having regard to the text, scope and purpose of the clause. Clause 1.8A of the 2012 LEP was a deeming provision that fictitiously set the 2012 LEP back to a point in time immediately before its commencement, at which time it was a “proposed instrument” and must be considered pursuant to s 79C(1)(a)(ii) of the EPA Act. It was thus a mandatory relevant consideration, assuming public consultation and proper notification had occurred.
- Second, no legislative intention had been evinced to abrogate the reasoning in Terrace Tower Holdings Pty Ltd v Sutherland Shire Council  NSWCA 289; (2003) 129 LGERA 195, where the NSW Court of Appeal had held that an analogous transitional provision, read with s 79C(1)(a)(ii) of the EPA Act, required that proper regard be given to draft instruments that had been exhibited but not yet commenced.
- Third, the Commissioner’s construction of cl 1.8A would effectively give either that clause, or s 79C(1)(a)(ii) of the EPA Act, no work to do and such a construction should be avoided.
- Fourth, the Commissioner’s construction of cl 1.8A would result in absurdity or irrationality. If, by reason of cl 1.8A, the 2012 LEP was not a proposed instrument under s 79C(1)(a) because it had in fact commenced, it was an irrelevant consideration; but, if it had not commenced, it was a mandatory consideration under 79C(1)(a). Such an irrational construction should be avoided.
- Fifth, even if the 2012 LEP was not a proposed instrument, the 2012 LEP was a matter that was relevant to “the public interest” and had to be considered pursuant to s 79C(1)(e) of the EPA Act. Alternatively, even if the 2012 LEP was not a mandatory consideration, it was still a matter to which the consent authority could nevertheless have regard.
Note: This information is not to be relied upon as legal advice.