Wingecarribee Shire Council v De Angelis [2016] NSWCA 189

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Wingecarribee Shire Council v De Angelis [2016] NSWCA 189 Hearing dates: 1 August 2016 Decision date: 01 August 2016 Before: McColl JA at [25], [28]; Basten JA at [1]; Payne JA at [27]; Decision: (1) 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.

(2) Allow the appeal and set aside the answer given to the question for determination by the court.

(3) In place of the answer given, answer the question as follows:

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: (1) With respect to the first limb of the question, clause 1.8A of the Wingecarribee Local Environmental Plan 2010 has no application to the development application lodged on 11 November 2013 by the respondent;

(2) With respect to the second limb of the question, the development contained in the development application lodged on 11 November 2013 by the respondent is prohibited under the zoning provided by the Wingecarribee Local Environmental Plan 2010 (Amendment No 38).

(4) Remit the matter to the Land and Environment Court.

(5) Order that the respondent pay the costs of the Shire Council in this Court. Catchwords: APPEAL – civil – application for leave – interlocutory decision of judge of Land and Environment Court in Class 1 jurisdiction – whether error in construction of savings provision of environmental planning instrument