De Angelis v Wingecarribee Shire Council [2016] NSWLEC 1

Land and Environment Court New South Wales

Medium Neutral Citation: De Angelis v Wingecarribee Shire Council [2016] NSWLEC 1 Hearing dates: 17 December 2015 Date of orders: 05 February 2016 Decision date: 05 February 2016 Jurisdiction: Class 1 Before: Craig J Decision: 1. Question: Whether Development Application LUA 13/0968 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: The development for which development consent is sought in Development Application LUA13/0968 lodged with Wingecarribee Shire Council on 11 November 2013 is not prohibited by the making of Wingecarribee Local Environmental Plan 2010 (Amendment No 38) and by operation of cl 1.8A of Wingecarribee Local Environmental Plan 2010 that Development Application must be determined under the provisions of the Environmental Planning and Assessment Act 1979 as if Wingecarribee Local Environmentall Plan 2010 (Amendment No 38) had not commenced. 2. Stand over the proceedings to the Registrar's List on Tuesday 16 February 2016 for directions. 3. Exhibits may be returned. Catchwords: DEVELOPMENT APPLICATION – permissibility of proposed development – issue determined as a separate question – amendment of principal planning instrument after the development application was made but not finally determined – operation of savings provision in principal planning instrument – whether reference in the savings provision to "this Plan" should be read as a reference to the Plan as amended – development application to be determined as if the amending instrument had not commenced Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW) Standard Instrument (Local Environmental Plans) Order 2006 Wingecarribee Local Environmental Plan 2010 Wingecarribee Local Environmental Plan 2010 (Amendent No 13) Wingecarribee Local Environmental Plan 2010 (Amendment No 38) Cases Cited: Darkinjung Local Aboriginal Land Council v Wyong Coal Pty Ltd (No 2) [2014] NSWLEC 71; 202 LGERA 223 De Angelis v Pepping [2015] NSWCA 236 Marrickvile Metro Shopping Centre Pty Ltd v Marrickville Council [2009] NSWLEC 109 Maygood Australia Pty Ltd v Willoughby City Council [2013] NSWLEC 142 Ocean Road Motel Pty Ltd v Pacific Acceptance Corporation Ltd [1963] HCA 22; 109 CLR 276 R v Seller [2013] NSWCCA 42; 273 FLR 155 The Dubler Group Pty Ltd v Minister for Infrastructure, Planning and Natural Resources [2004] NSWCA 424; 137 LGERA 178 Tovir Investments Pty Ltd v Waverley Council [2014] NSWCA 379 Texts Cited: Pearce and Geddes, Statutory Interpretation in Australia, (8th Ed, LexisNexis) Category: Procedural and other rulings Parties: Alcide De Angelis (Applicant) Wingecarribee Shire Council (Respondent) Representation: Counsel: A Galasso SC (Applicant) T To (Respondent)