In Ryan v The Minister for Planning [2015] NSWLEC 88 Sheahan J has confirmed that the same legal constraint applies to the LEP making process under current legislation as applied prior to the 2008 amendments to the plan making provisions of the Environmental Planning & Assessment Act 1993. The constraint is that the plan as made must not be significantly different from the planning proposal as exhibited, such that it has a significantly different character, substance and legal effect, and as a result is not a product of the process in Division 4 of Part 3 of the EP&A Act .
This confirms the decision of Pain J in Save Little Manly Beach Foreshore Inc v Manly Council (No 3) [2015] NSWLEC 77, that the line of authority emanating from Leichhardt Council v Minister for Planning (No 2) (1995) LGERA 78 is still applicable to the current LEP making provisions of the Act, notwithstanding the 2008 amendments. Whilst Pain J held on the facts in Little Manly that the impugned plan in that matter was not invalidated by this constraint, in Ryan, Sheahan J considered that the removal of proposed environmental zones from the plan as made, such that rural zoning of land remained, when the planning proposal had been for environmental zoning, “reflected a very substantial change in the planning regime”, and resulted in the LEP as made being declared invalid.
Note: This information is not to be relied upon as legal advice.