De Angelis v Wingecarribee Shire Council [2016] NSWLEC 1

De Angelis v Wingecarribee Shire Council [2016] NSWLEC 1

Clause 1.8A of WLEP 2010 should be construed as referring to the planning instrument as amended from time to time. The applicant's development application was made before LEP 38 commenced and had not been finally determined. By operation of clause 1.8A, the application must be determined as if LEP 38 had not commenced, so the proposed development is not prohibited by the making of LEP 38.

Jurisdiction
Australia
Judgment Date
05 February 2016
Procedural Posture
Class 1 Appeal Under S 97(1)(b) of the Environmental Planning and Assessment Act 1979 (nsw) Concerning a Development Application / Separate Question Determined Before Other Questions or Issues in the Proceedings
Outcome
Separate question answered in favour of the applicant; the development application is saved by clause 1.8A and is not prohibited by LEP 38.
Legal Topics
['development Application Permissibility' 'savings Provision in Local Environmental Plan' 'amendment of Environmental Planning Instrument' 'construction of Clause 1.8 a of Wingecarribee Local Environmental Plan 2010']
['planning and Environment Law' 'statutory Interpretation'] ['development Application Permissibility' 'savings Provision in Local Environmental Plan' 'amendment of Environmental Planning Instrument' 'construction of Clause 1.8 a of Wingecarribee Local Environmental Plan 2010']

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Procedural Posture

Class 1 Appeal Under S 97(1)(b) of the Environmental Planning and Assessment Act 1979 (nsw) Concerning a Development Application / Separate Question Determined Before Other Questions or Issues in the Proceedings

Legal Issues

  1. 1 ['Whether Development Application LUA 13/0968 was saved by clause 1.8A of the Wingecarribee Local Environmental Plan 2010.' 'Whether the proposed mixed use development was prohibited by Wingecarribee Local Environmental Plan 2010 (Amendment No 38).' 'Whether the reference to "this Plan" in clause 1.8A should be read as referring to Wingecarribee Local Environmental Plan 2010 as amended from time to time.']

Ratio Decidendi

Clause 1.8A of WLEP 2010 should be construed as referring to the planning instrument as amended from time to time. The applicant's development application was made before LEP 38 commenced and had not been finally determined. By operation of clause 1.8A, the application must be determined as if LEP 38 had not commenced, so the proposed development is not prohibited by the making of LEP 38.

Court Disposition

Separate question answered in favour of the applicant; the development application is saved by clause 1.8A and is not prohibited by LEP 38.

Orders

  • ['Question: Whether Development Application LUA13/0968 lodged with Wingecarribee Shire Council on 11 November 2013 is saved by virtue of clause 1.8A of the Wingecarribee Local Environmental Plan 2010 or whether it is prohibited by the making of Wingecarribee Local Environmental Plan 2010 (Amendment No 38). Answer:...