Australia: Planning proposals under the gateway process: Are community consultation requirements as rigorous as before?

Sheahan J has confirmed in Ryan v Minister for Planning [2015] NSWLEC 88 that the final products of planning proposals made under Division 4 of Part 3 of the Environmental Planning and Assessment Act 1979 (EPA Act) are subject to the same community consultation requirements established by the Court of Appeal in Leichhardt Council v Minister for Planning (No 2) (1995) 87 LGERA 78 (Leichhardt Decision). In particular, Sheahan J's judgment provides important guidance on the scope of amendments that can be made to planning proposals following exhibition where no re-exhibition is to occur.


In April 2011, Lismore City Council (Council) resolved to support a planning proposal to rezone approximately 255 ha of land on the North Lismore Plateau (Land), primarily for residential development and environmental protection (Planning Proposal).

Following additional studies and assessments required by the Department of Planning and Infrastructure (as it was then known) (Department) as a condition of its Gateway determination issued on 26 June 2011, Council resolved on 31 July 2012 to forward the Planning Proposal to the Department with a request that it be placed on public exhibition.

Following a further minor revision, the Planning Proposal was approved for exhibition on 15 August 2012 and exhibited for 42 days from 4 October 2012 until 15 November 2012.

In the period between the approval for exhibition and the date on which the Planning Proposal was first exhibited, on 20 September 2012, the Minister for Planning (Minister) announced that the Department would:

  1. review the use of environmental zones;
  2. excise environmental zones from draft local environmental plans (LEPs);
  3. not endorse the use of environmental zones on rural land,

in all Far North Coast LEPs (E Zone Review). This included LEPs within the Council's local government area.

In February 2013, the Lismore Local Environmental Plan 2012 (2012 LEP) came into effect which, although unrelated to the Planning Proposal, rezoned the Land to RU1 Primary Production and R5 Large Lot Residential. As a consequence, the Minister's delegate issued an amended Gateway determination to reflect the making of the 2012 LEP and to extend the time for completing the LEP amendment resulting from the Planning Proposal.

On 13 August 2013, Council resolved to forward the Planning Proposal to the Department and request that the amendment to the 2012 LEP be made as soon as possible. That resolution had regard to the content of the Planning Proposal which provided, amongst other things, for the rezoning of:

  1. 28 ha of the Land for E2 Environmental Conservation (E2);
  2. 44 ha of the Land for E3 Environmental Management (E3);
  3. 2.4 ha of the Land for B1 Neighbourhood Centre;
  4. 1.4 ha of the Land for RE 1 Public Recreation;
  5. 8.6 ha of the Land for RU1 Primary Production; and
  6. 171 ha of the Land for R1 General Residential.

The area proposed to be rezoned as E2 and E3 (Environmental Land) had been rezoned RU1 Primary Production under the 2012 LEP and represented an area of 28.5% of the Land.

Following Council's resolution and the forwarding of the Planning Proposal to the Department, the Department directed Council to make two amendments. First, that the zoning of the Environmental Land be amended from E2 and E3 so that it was depicted as a "deferred matter". Second, and subsequent in time, that the zoning of the Environmental Land be changed again, from "deferred matter" to RU1 Primary Production (the current zoning), pending the outcome of the E Zone Review.

The Department's Planning Proposal Summary Report stated that this variation to the Planning Proposal was appropriate.

On 21 February 2014, the Planning Proposal (as amended) was given effect by way of an amendment to the 2012 LEP (LEP Amendment). Relevantly, the LEP Amendment contained no E2 or E3 zones and the Environmental Land retained its RU1 Primary Production zoning.

The applicant in the proceedings, Michael Ryan (Ryan), commenced proceedings in the Land and Environment Court challenging the validity of the LEP Amendment on the basis of its difference from the Planning Proposal as exhibited.

At the time of hearing, only the Minister and Secretary of the Department (Respondents) actively defended the proceedings.


Ryan claimed that the LEP Amendment was fundamentally different from the Planning Proposal as exhibited. On this basis, Ryan further claimed that the LEP Amendment was "not a product of the statutory process for the making of an LEP" under Part 3, Division 4 of the EPA Act, and invalid.

Ryan's claim was based on the reasoning set out in a line of cases commencing with the Leichhardt Decision and culminating in the decision in Friends of Turramurra v Minister for Planning [2011] NSWLEC 128 (Turramurra Decision), which had all considered the issue of amendments to draft instruments and consultation in the context of the previous regime under the EPA Act for the amendment of LEPs. That reasoning is expressed in the Leichhardt Decision at [84]:

"[The argument was raised concerning] the difference between the draft regional environmental plan as exhibited and that made by the Minister. It was submitted that the difference was of such significance that the plan made by the Minister could not be said to be an outcome of the Pt 3 div 3 process. The submission involved the idea that s 51 is the culmination of a sequence of steps contained in ss 40-52; it is not a free standing section; it goes on the footing that a regional environmental plan made by the Minister pursuant to s 51 is one that is the outcome of the process set in train by s 40. Both the Director (s 49) and the Minister (s 51) may alter the draft regional environmental plan; the Director may alter the draft which was exhibited and the Minister may alter the draft submitted by the Director; but the power to alter must be confined by the need for the ultimate plan to be the outcome of the process which included the public exhibition of the draft plan; if either s 49 or 51 were interpreted so that the power of alteration of the Director and the Minister could bring about the making by the Minister of a plan so different from the publicly exhibited draft that in some important respect it could be said to be a quite different plan, then Pt 3 div 3 would be emptied of any substance.


[it is necessary] for the Court to compare the publicly exhibited draft plan with the plan made by the Minister to see what the differences are between them, and how important they are."

[emphasis added]

Although Ryan challenged the validity of the LEP Amendment on several other bases, none of these were required to be considered by the Court.

In reply to Ryan's claim, the Respondents claimed that the line of cases involving the Leichhardt Decision and the Turramurra Decision were not applicable, as those cases turned on the "highly prescriptive" and" detailed scheme of consultation and public exhibition" in force at the time but replaced pursuant to the Environmental Planning and Assessment Amendment Act 2008 on 1 July 2009.

The Respondents claimed, in contrast to the requirements of the previous legislative regime, that the LEP making process under the new Division 4 of Part 3 of the EPA Act gave the Minister control over the final content of the amendment to an LEP with "flexibility" to "tailor" the consultation required, if any.


After the hearing of the proceedings, but before judgment had been handed down, Pain J delivered judgment in Save Little Manly Beach Foreshore Incorporated v Manly Council (No 3) [2015] NSWLEC 77 (Manly Decision), which involved similar issues to those put forward in these proceedings.

In that case, a panning proposal had been amended following exhibition and Pain J was asked to consider whether the principles of the Leichhardt and Turramurra Decisions were applicable.

While determining that the amendments to the planning proposal were not so significant so as to invalidate the amendment to the LEP, her Honour held at [72]:

"... The process in the current Div 4 provides far greater flexibility in the community consultation arrangements than in the old Div 3 or Div 4. Greater flexibility does not undermine the importance of community consultation in the statutory scheme. Where consultation is required by the gateway determination it is mandatory. The power to alter an instrument from that publicly exhibited was circumscribed by the Court of Appeal in Leichhardt (No 2) and subsequent cases on the basis that the instrument made must reflect the statutory scheme in Div 4 which includes the community consultation requirements. While there are substantial procedural changes in the current Div 4, in substance the significance of the requirement for community consultation remains and there is no basis for distinguishing earlier authorities which considered the old Div 3 and Div 4."

[emphasis added]

Her Honour's decision thus provided a firm basis for the application of the principles in the Leichhardt and Turramurra Decisions in the current proceedings. In reply, the Respondents claimed that because no infringement of the community consultation requirements was found to have taken place in the Manly Decision, her Honour's comments were:

  1. merely obiter dicta (not binding); and
  2. consequently, Sheahan J was not required by judicial comity to follow her Honour's application of principle.

Ultimately, Sheahan J held at [142] that Pain J's statement constituted a "rule of law expressly or impliedly treated ... as a necessary step in reaching [her] conclusion" and, as a result, Pain J's comments were ratio decidendi (critical to the rationale for the judgment). In the alternative, Sheahan J stated that even if Pain J's comments were obiter dicta, her Honour's reasoning was highly persuasive and to be adopted.


Having found that the principles in the Leichhardt and Turramurra Decisions were applicable, Sheahan J considered whether the difference between the Planning Proposal (as exhibited) and the LEP Amendment (as made) was so significant that it made the LEP amendment not a "product of the process" required by the EPA Act.

Sheahan J observed that in the Manly Decision, Pain J's finding that there had been compliance with the plan making process under the EPA Act was based on the fact that:

  1. the proposed amendments to the LEP consisted of two separate "parts" or "schemes";
  2. those two "parts" or "schemes" were not interdependent (so that one could proceed without the other); and
  3. to implement one "part" or "scheme" and not the other did not vitiate the purpose of public consultation.

In the present case, the Planning Proposal did not contain two or more "parts" or "schemes" or, if it did, they were interdependent. The rezoning of the Environmental Land to an environmental use was found to "play an important role in the abatement of environmental impacts as a result of the rezoning of the plateau for residential purposes" and public submissions would have been informed by this factor.

As a result, the absence of environmental protection zonings in the LEP Amendment "fundamentally altered the nature of the proposal", with the effect that the LEP Amendment was not a "product of the process" stipulated by Division 4 of Part 3 of the EPA Act.

Accordingly, the LEP Amendment was declared invalid.


There are two important points that flow from the decision in these proceedings. The first is that the community consultation regime applicable at the time of the Leichhardt and Turramurra Decisions continues to be applicable to the new LEP making regime under the EPA Act.

The second point concerns the way in which the "parts" of a planning proposal need to be considered when making amendments following exhibition. In particular:

  • the removal of one "part" of a planning proposal, which is not interdependent on another, will generally be considered to be valid (as was the case in the Manly Decision); and
  • the removal of one "part" of a planning proposal, which is dependent on another, will generally be considered to be invalid (as was the case in these proceedings).

This is an important distinction to be noted by both proponents and planning authorities.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Most awarded firm and Australian deal of the year
Australasian Legal Business Awards
Employer of Choice for Women
Equal Opportunity for Women
in the Workplace (EOWA)

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.