Introduction

An obvious consequence is that the circumstances, laws, and rights connected to a DA may significantly change over time. To address this, amending legislation often contains saving provisions. These preserve the applicable provisions to a DA when amendment or repeal would otherwise remove them. It has been established that any savings provisions, such as model clause 1.8A, only apply to DAs made before the commencement of an LEP and not for subsequent LEP amendments: Wingecarribee Shire Council v De Angelis [2016] NSWCA 189.

It is therefore critical to understand the nature of a DA and any potential savings provisions when determining an application. An interesting situation arises when an amendment repeals an earlier section that contained a savings provision. Do the rights accrued by a DA made before the amendment is made (accrued under the repealed savings provision) disappear? 

The recent decision of Goldcoral Pty Ltd (Receiver and Manager Appointed) v Richmond Valley Council [2024] NSWLEC 77 (Goldcoral) highlights the judicial approach to this issue and the impact of savings provisions broadly.

Issue

Goldcoral lodged a DA in October 2014. At that time, cl 7(1) of SEPP 14 restricted specified development without consent on land to which the SEPP applied. This included Goldcoral’s lot. The development specified included constructing a levee, clearing, draining, or filling the land. Goldcoral’s proposal did not involve any of these specified developments and was not declared by SEPP 14 to be designated development. SEPP 71 also applied at the time. It did not prescribe any designated development.

In April 2018, the Coastal SEPP repealed and replaced SEPPs 14 and 71. It contained a savings provision, cl 21(1):

“The former planning provisions [including SEPP 14 and 71, per cl 21(4)] continue to apply (and this Policy does not apply) to a development application lodged, but not finally determined, immediately before the commencement of this Policy in relation to land to which this Policy applies.”

For this reason, it was correctly understood that SEPP 14 and 71 continued to apply to Goldcoral’s DA, not the new Coastal SEPP.

In March 2022, however, the RAH SEPP repealed and replaced the Coastal SEPP. The savings provision in the Coastal SEPP, cl 21(1), was not transferred. Council therefore argued the provisions of the RAH SEPP, and not SEPPs 14 and 71, were to apply to Goldcoral’s DA. In effect, the Council argued that Goldcoral’s right to have the DA assessed through the old framework was extinguished by the lack of a savings provision in the new, repealing RAH SEPP. 

Resolution

Chief Justice Preston of the LEC stated at [63] that:

“[Goldcoral, who] made the development application at a time when the former environmental planning instruments of SEPP 14 and SEPP 71 were in force, has a right to have its development application determined under those instruments. That right is founded on s 5(6) and s 30(2)(b) and (d) of the Interpretation Act 1987 (NSW)” (Interpretation Act).

The Interpretation Act applies to environmental planning instruments, such as SEPP 14 and 71: s 5(6). Section 30(2) of the Act provides:

“Without limiting the effect of subsection (1), the amendment or repeal of an Act or statutory rule does not affect— 

(a) the proof of any past act or thing, or

(b) any right, privilege, obligation or liability saved by the operation of the Act or statutory rule, or

(c) any amendment or validation made by the Act or statutory rule, or

(d) the operation of any savings or transitional provision contained in the Act or statutory rule.

Preston CJ, at [74], agreed with Goldcoral’s argument that s 30(2)(b) and (d) of the Interpretation Act operate to save Goldcoral’s accrued right under cl 21(1) to have its DA determined under SEPP 14 and 71 as opposed to the RAH SEPP. Preston CJ highlighted that such an accrued right is affirmed by the unanimous decision of the Court of Appeal in The Dubler Group Pty Ltd v Minister for Infrastructure, Planning and Natural Resources (2004) 137 LGERA 178.

This right did not arise from Goldcoral submitting a DA in 2014. Sofi v Wollondilly Shire Council (1975) 31 LGERA 416 remains the authority that a DA is determined at the time of determination. The right, rather, was accrued by the operation of cl 21(1) of the Coastal SEPP, introduced in 2018. With this right accrued, the operation of s 30(2)(b) and (d) of the Interpretation Act was that the repeal of the Coastal SEPP by the RAH SEPP did not impact the right saved by, or the operation of, cl 21(1) to have the DA determined under SEPP 14 and 71, whenever that determination should occur.

For this reason, Preston CJ found that the development proposed by Goldcoral was not designated development: [76].

Conclusion

Goldcoral reinforces the importance of savings provisions and accrued rights in determining a DA. The case clarifies that where a DA is lodged before the repeal of an environmental planning instrument, savings provisions can preserve rights to have the application assessed under that prior instrument. Preston CJ affirmed that the Interpretation Act operates to protect these accrued rights, even when the repealing instrument does not include a similar savings provision. 

Goldcoral upholds the principle that a DA should be assessed based on the laws in force at the time of assessment, but allows for conferred rights regarding how such an assessment will be made.

Disclaimer

The contents of this article are a general guide and intended for educational purposes only. Determination of the types of issues discussed in this article is complex and often varies from case to case and involves an understanding of matters of fact and degree. Opinions on those matters can vary and be matters on which reasonable minds may differ.

DO NOT RELY ON THIS ARTICLE AS A SUBSTITUTE FOR COMPETENT LEGAL ADVICE.