Wingecarribee Shire Council v De Angelis [2016] NSWCA 189

Wingecarribee Shire Council v De Angelis [2016] NSWCA 189

Clause 1.8A of the Wingecarribee Local Environmental Plan 2010 operated only in relation to development applications made before the commencement of that Plan on 16 June 2010. It did not have an ambulatory effect applying to applications lodged before later amendments. Because the respondent's development application was lodged on 11 November 2013, clause 1.8A had no application to it. The 2015 amendment Plan commenced without any savings provision and prohibited the proposed development under the amended zoning, so the primary judge erred in answering the separate question otherwise.

Jurisdiction
Australia
Judgment Date
01 August 2016
Procedural Posture
Civil Appeal; Application for Leave to Appeal From an Interlocutory Decision in the Land and Environment Court Class 1 Jurisdiction / Leave to Appeal Granted; Appeal Allowed; Matter Remitted to the Land and Environment Court
Outcome
Leave to appeal granted; appeal allowed; answer to the separate question set aside and replaced; matter remitted to the Land and Environment Court; respondent ordered to pay the Shire Council's costs in the Court of Appeal.
Legal Topics
['development Application' 'local Environmental Plan' 'savings Provision' 'ambulatory Construction' 'prohibited Development' 'zoning Amendment' 'leave to Appeal']
['environment and Planning Law' 'statutory Interpretation' 'civil Procedure'] ['development Application' 'local Environmental Plan' 'savings Provision' 'ambulatory Construction' 'prohibited Development' 'zoning Amendment' 'leave to Appeal']

Case Brief

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Procedural Posture

Civil Appeal; Application for Leave to Appeal From an Interlocutory Decision in the Land and Environment Court Class 1 Jurisdiction / Leave to Appeal Granted; Appeal Allowed; Matter Remitted to the Land and Environment Court

Legal Issues

  1. 1 ['Whether Development Application LUA13/0968 lodged with Wingecarribee Shire Council on 11 November 2013 was saved by clause 1.8A of the Wingecarribee Local Environmental Plan 2010.' 'Whether the development application was prohibited by the making of Wingecarribee Local Environmental Plan 2010 (Amendment No 38).' 'Whether the words "this Plan" in clause 1.8A referred only to the 2010 LEP as commenced or operated ambulatory so as to include later amendments.' 'Whether the primary judge erred in construing the savings provision of the environmental planning instrument.']

Ratio Decidendi

Clause 1.8A of the Wingecarribee Local Environmental Plan 2010 operated only in relation to development applications made before the commencement of that Plan on 16 June 2010. It did not have an ambulatory effect applying to applications lodged before later amendments. Because the respondent's development application was lodged on 11 November 2013, clause 1.8A had no application to it. The 2015 amendment Plan commenced without any savings provision and prohibited the proposed development under the amended zoning, so the primary judge erred in answering the separate question otherwise.

Court Disposition

Leave to appeal granted; appeal allowed; answer to the separate question set aside and replaced; matter remitted to the Land and Environment Court; respondent ordered to pay the Shire Council's costs in the Court of Appeal.

Orders

  • ['Grant the applicant Shire Council leave to appeal from the decision of Craig J in the Land and Environment Court given on 5 February 2016.' 'Allow the appeal and set aside the answer given to the question for determination by the court.' 'In place of the answer given, answer the question: with respect to the first...