We previously reported on a recent interpretation of the savings and transitional provisions in State Environmental Planning Policy (Housing) 2021 (“Housing SEPP”) by a Commissioner of the Land and Environment Court (“LEC”) in the case of Emag Apartments Pty Limited v Inner West Council [2022] NSWLEC 1042 (“Emag”). A copy of the article can be accessed here.
At time of the judgment in the Emag case, the savings and transitional provision in Schedule 7 of the Housing SEPP had provided as follows:
“1 Definitions
In this Schedule—
commencement date means the day on which this Policy commenced.
repealed instrument means an instrument repealed under Chapter 1, section 10.
2 General savings provision
The former provisions of a repealed instrument continue to apply to the following—
(a) a development application made, but not yet determined, on or before the commencement date,
(b) a concept development application made, but not yet determined, on or before the commencement date,
(c) a staged development application made subsequent to a concept development application approval granted on or before the commencement date,
(d) a development consent granted on or before the commencement date,
(e) an environmental impact statement prepared in compliance with an environmental assessment requirement that is—
(i) issued by the Planning Secretary on or before the commencement date, and
(ii) in force when the statement is prepared.”
Commissioner Horton relevantly found that the savings and transitional provision as it was then worded did not exclude the application of the Housing SEPP in addition to State Environmental Planning Policy (Affordable Rental Housing) (“SEPP ARH”) to a development application that had been lodged but not determined prior to the commencement of the Housing SEPP.
On 18 March 2022, the State Environmental Planning Policy (Housing) Amendment (Miscellaneous) 2022 (“the Amending SEPP”) commenced.
The Amending SEPP renumbered the Schedule containing the savings and transitional provisions to Schedule 7A and inserted the following amended versions of clauses 1 and 2:
“1 Definitions
In this Schedule—
commencement date means 26 November 2021.
repealed ARH SEPP means State Environmental Planning Policy (Affordable Rental Housing) 2009, as in force immediately before its repeal.
repealed instrument means an instrument repealed under Chapter 1, section 10.
repealed Seniors SEPP means State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004, as in force immediately before its repeal.
2 General savings provision
(1) This Policy does not apply to the following matters—
(a) a development application made, but not yet determined, on or before the commencement date,
(b) a concept development application made, but not yet determined, on or before the commencement date,
(c) a staged development application made subsequent to a concept development application approval granted on or before the commencement date,
(d) a development consent granted on or before the commencement date,
(e) an environmental impact statement prepared in compliance with an environmental assessment requirement that is—
(i) issued by the Planning Secretary on or before the commencement date, and
(ii) in force when the statement is prepared,
(f) the carrying out of an activity after the commencement date if—
(i) notice of the activity has been given to the council under the repealed ARH SEPP, clause 40A(2), and
(ii) an approval required under the Act, Part 5 for carrying out the activity is granted by the determining authority before 26 November 2022.
(2) The provisions of a repealed instrument, as in force immediately before the repeal of the repealed instrument, continue to apply to a matter referred to in subsection (1).”
The important differences between the provisions are as follows:
- Instead of providing that the provisions of a repealed instrument continue to apply to the listed matter, clause 1(1) now explicitly states that the provisions of the Housing SEPP do not apply to those matters.
- A new clause 1(2) specifies that the provisions of a repealed instrument (as in force immediately before the repeal) continue to apply to a matter referred to in clause 1(1).
At face value, it appears that the amendments have addressed the concern expressed in the Emag case that the wording of the provision did not exclude the concurrent application of both instruments to a development application made, but not yet determined, on or before 26 November 2021.
Notwithstanding this, in our view the amended savings and transitional provision still departs from drafting conventions in at least the following respects:
- It refers to a development application made, but not yet determined, on or before the commencement date. Many savings provisions in environmental planning instruments have historically referred to a development application made, but not yet finally determined, on or before a particular date (see, for example, clause 54B in SEPP ARH, clause 21 of State Environmental Planning Policy (Coastal Management) 2018 and the savings provisions in the 2019 and 2021 Koala SEPPs).
- It does not require a saved development application to be determined as if the Housing SEPP had not commenced. This wording has been popular in other savings provisions for many years and has been found to require that a consent authority take the amending instrument into consideration as a draft instrument under section 4.15(1)(a)(ii) of the Environmental Planning and Assessment Act 1979 (see, for example, Maygood Australia Pty Ltd v Willoughby City Council [2013] NSWLEC 142). In the absence of such wording, it is arguably less clear that the Housing SEPP ought to be given the weight of a draft instrument.
At the time of writing, the amended savings and transitional provisions had not been considered in any published judgment of a Commissioner or Judge of the LEC.
However, there will undoubtedly be further decisions in the coming months in which the amended savings and transitional provisions will arise for consideration. We will review those decisions with anticipation and hope that they provide greater clarity as to the intended application of the provisions.
For further information on these planning and environmental law updates, please contact Adam Seton on aseton@marsdens.net.au or (02) 4626 5077 and David Baird on dbaird@marsdens.net.au or (02) 4626 5077.
The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.
