The accepted legal position is that a development application is to be determined on the law as it stands at the time of determination: Sofi v Wollondilly Shire Council (1975) 31 LGERA 416.

Unless the amending LEP contains a specific savings provision, a DA must be determined in accordance with the law as at the date of the determination.

What if the amendment does not contain a savings provision? 

Occasionally an amending LEP or other legislation does not contain a savings provision. 

This could mean that under the LEP your proposed development was permissible. But, between the date you lodge a DA and the date of determination, Council amends its LEP, such that your proposed development is now prohibited. Your proposed development was permissible when you lodged the DA, but is now prohibited at the date of determination. Under this example, Council must refuse your DA because the proposed development is now prohibited. 

This situation is similar to that faced by the applicant in De Angelis v Wingecarribee Shire Council [2016] NSWLEC 1.

Most LEP’s will contain a savings provision based on the model clause 1.8A:

1.8A Savings provision relating to development applications

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.

In De Angelis v Wingecarribee Shire Council [2016] NSWLEC 1, Craig J held that cl 1.8A had an “ambulatory” operation, meaning that it operated with respect to the LEP as amended from time to time. The DA in question was therefore “saved” and the amendments to the LEP (prohibiting the development) did not apply to the DA because the DA was lodged before the amendments were made to the LEP.

However, the NSW Court of Appeal overturned this decision in Wingecarribee Shire Council v De Angelis [2016] NSWCA 189. The Court of Appeal held that savings provisions like clause 1.8A relate only to the point in time when the new LEP commences (in this case 2010), not each subsequent amendment to the LEP. That is, savings provisions “deal with a precise point in time, namely the point at which a new legal instrument commences” and do not have an “ambulatory effect”, meaning the relevant point in time does not change over time with subsequent amendments to the relevant LEP. 

On that basis the Court held that clause 1.8A in LEP 2010 applied to DAs made before the LEP commenced in 2010. It did not apply to the date that any amendments to the LEP commenced.