23 November 2016
What ‘temporary use’ under clause 2.8 of the Local Environmental Plan really means
A recent decision of the Land and Environment Court of NSW, EMRR Pty Ltd v Murray Shire Council  NSWLEC 144, discusses the definition of ‘temporary use of land’ in the relevant Local Environmental Plan (LEP) and held that activities ancillary to the proposed temporary use of the land should not be included in the calculation of the maximum period allowed for the temporary use of that activity.
This case follows on from others in the Land and Environment Court, such as Marshall Rural Pty Limited v Hawkesbury City Council and Ors  NSWLEC 197, which held that when a use is prohibited in a zone, that use is fundamentally prohibited irrespective of whether the statutory instrument provides for a “temporary use” of the activity.
Justice Sheahan, in this case, makes particular reference to Marshall Rural Pty Limited, stating at  that Justice Moore’s analysis regarding clause 2.8 was “excellent” and “consistent” with the conclusions reached.
EMRR Pty Limited (Applicant) sought development consent to erect a marquee on an already existing slab for the purpose of events, primarily weddings. The site was situated on land near the Murray River, zoned “R3 River Management.”
On 1 June 2016, the Applicant and Murray Shire Council (Council) agreed on terms for an agreement under section 34 of the Land and Environment Court Act 1979. A relevant condition under the agreement was that the “temporary use of the land for a function centre” was “for a maximum of fifty-two (52) days per year for a minimum of three (3) years.”
Mark Alan Pearce (Second Respondent), a resident of the area, successfully moved the Court to be joined in the proceedings. He contended that Council lacked the power to grant the relevant approval because the subject development was “prohibited” by the Murray Local Environmental Plan 2011 (MLEP), notably clause 7.4 of the MLEP.
The Second Respondent proposed that the condition should read as following: “Development consent is granted for the temporary use of the land nominated in the application for a function centre holding events not more than fifty-two (52) days in any calendar year for a period of 12 months.”
Contentions raised by the Second Respondent
Two grounds of challenge were raised by the Second Respondent:
- There was a conflict between clause 2.8 and clause 7.4 of the MLEP, and therefore development consent cannot be granted under clause 2.8 as clause 7.4 overrides clause 2.8.
- A consent granted for a three year period cannot be properly characterised as a “temporary use” for the purposes of clause 2.8 of the MLEP.
The Second Respondent failed on both grounds of challenge.
Clause 2.8 of the MLEP refers to the temporary use of land and provides that development consent may be granted for development on land in any zone for a temporary use for a maximum period of 52 days (whether or not consecutive days) in any period of 12 months.
Clause 2.8 was extensively judicially considered by Justice Moore in the matter of Marshall Rural Pty Limited.
Clause 7.4 of the MLEP provides that development consent may only be granted to development on land in a river front area for certain purposes, and development consent can be refused in all other circumstances.
In relation to contention one, the Second Respondent submitted that clause 7.4 had a ‘controlling’ function to control all potential forms of development in order to protect particular land, and therefore it was a more specific provision than clause 2.8 which applied generally across the local government area notwithstanding the zoning. Therefore, clause 7.4 should have primacy when considered in conjunction with clause 2.8. The Applicant, in contrast, contended that there was no inconsistency between the two clauses and therefore a ‘temporary use’ of the function centre under clause 2.8 could be granted without being inconsistent with clause 7.4
Justice Sheahan agreed with the Applicant and stated that while clause 7.4 was more specific than clause 2.8, clause 7.4 does not more than create a ‘sub-zone’, limiting the development that could be carried out within that zone and should be characterised as a zoning provision similar to a land use table. Therefore, a temporary use could occur on the land where such a use may otherwise be prohibited in accordance with clause 7.4.
In relation to contention two, the Second Respondent maintained that consent could not be granted to the development application on the basis that the continuous and regular use of the land for a function centre over a period of three years cannot be properly categorised as a “temporary use” under clause 2.8. The Second Respondent also raised concerns about whether or not activities ancillary to the events that characterise the temporary use, such as construction and deconstruction of the marquee, inspections and bookings, should be included within the maximum period of 52 days. The Applicant, on the other hand, submitted that the objective of clause 2.8 was to allow for the intermittent use of land for a period of time. A prescription of a number of occasions in an identified period of time meant, in effect, that a use which is subject to numerical criteria was, by definition, to be regarded as a temporary use. It was also submitted by the Applicant that it was no conceivable that the 52 day period would include ancillary uses, and the legislation was not intended to be interpreted in this way.
Justice Sheahan once again agreed with the Applicant. The definition of ‘function centre’ under the MLEP anticipates the use of the land for the purpose of events, rather than any preparatory or subsequent work associated with the events. Therefore, His Honour concluded that it would be an impractical construction of the term ‘temporary use’ if the land were able to be used only for the purpose of functions and associated preparatory work for a total of 52 days. His Honour also stated that there was no sound reason provided by parties as to why the consent should only be limited to a year.
His Honour ordered that development consent should be granted for a three-year basis pursuant to clause 2.8.
This case demonstrates that clause 2.8, as inserted in the model template of the MLEP, must be construed with caution, especially when read in conjunction with other clauses of the relevant LEP. This case also demonstrates that the time period which is stipulated by any condition relating to temporary use does not include any ancillary work that is to be done in relation to the activity itself. As alluded to by Justice Sheahan, a party which is seeking any order to impose a limitation in time for the temporary use of an activity need to provide sound reasons as to why the consent needs to be limited, such as any adverse impacts created by the activity under clause 2.8. A failure to give reasons will most likely result in the temporary use being approved.
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