What “temporary use” of a prohibited activity really means – beware the high threshold!
A recent decision of the Land and Environment Court of NSW, Marshall Rural Pty Ltd v Hawkesbury City Council and Ors  NSWLEC 197, highlights that when a use is prohibited in a zone, that use is fundamentally prohibited in the zone, irrespective as to whether the statutory instrument provides for a “temporary use” of that otherwise prohibited activity.
Development Application(s) (DAs) were lodged by the Second Respondent with the Council. The DAs sought approval for the temporary use of the buildings, being the Polo Barn and the Sunnybrook Barn, as function centres.
Function centres are prohibited in the relevant zone, being the RU2 Rural Landscape zone. Clause 2.8 of the Hawkesbury Local Environmental Plan 2012 (LEP), however, provides for the “temporary use of land [for the purpose of a function centre] if the use does not compromise future development of the land, or have detrimental economic, social, amenity or environmental effects on the land.” This temporary use is only permitted for a maximum period of 28 days (whether consecutive or not) in any 12 month period.
On 30 June 2015, the DAs were approved by the Council, subject to certain conditions.
The Applicant commenced Class 4 proceedings in the Land and Environment Court, seeking the following orders:
- A declaration that the grant of development consent(s) made by the Council be declared invalid and set aside; and
- An order that the Second and Third Respondents, by themselves, their servants or agents, be restrained from relying on the said grants of development consent.
Applicant’s grounds of challenge
The DAs were challenged by the Applicant on several grounds. The primary grounds being:
- That the DAs were not authorised under the LEP because the use of land as a “function centre” is prohibited in the zone, and the consents were for a period exceeding the maximum period allowed by sub-clause 2.8(2) of the LEP.
- That in granting the approvals, the Council failed to consider, properly, preconditions to the exercise of the power under sub-clause 2.8(3) of the LEP, specifically the issue of whether or not there was any adverse impact on adjoining land or the amenity of the neighbourhood.
- That the Council took into account an irrelevant consideration, being a purported and/or possible future planning proposal.
The Applicant succeeded on Ground 2, and as a result the DAs were declared invalid and set aside.
In relation to Ground 2, the Court found that Council had failed to consider whether or not there was any adverse impact on adjoining land or the amenity of the neighbourhood.
His Honour Acting Justice Moore, after taking into all the evidence which included acoustic evidence and affidavit material put forward by all parties, concluded that Council failed to have regard to the correct, materially relevant consideration contained in clause 2.8 of the LEP. His Honour stated that the assessment reports by both experts did not take into account the fundamental nature of the test required, namely that the standards envisaged the absence of adverse impact rather than an acceptable impact. .
His Honour went further to state that the test under clause 2.8 “puts a very high hurdle in the path of any such application. The placing of such a hurdle requires that the Council must approach the consideration and determination of any such application with a marked degree of precision and caution.”
In relation to Ground 1, the Court concluded that the phrase “in any 12 month period” cannot be construed as if they meant “for a 12 month period”. His Honour found that an ordinary reading of the expression makes it clear that there is no such hidden, second limitation to be found from the reading of the provision. The ground failed.
In relation to Ground 3, the Court concluded that there was no determinative factor that aligned the outcome of a temporary use consent by the Council with a terminating date that was postulated to permit amendment to the LEP. The ground failed.
This case strongly demonstrates that when a use is prohibited in the zone, but the LEP provides for a temporary use of the land in a manner that is otherwise prohibited, that use is still fundamentally prohibited in nature within that zone. The mere fact that there is not to be any adverse impact on adjoining land, as set out in the relevant clause of the LEP, was an extremely high threshold to meet.
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