Temporary use and clause 2.8 of the Standard Instrument LEP

This Essential Guide will assist local councils to apply the temporary use provisions in cl. 2.8 of the Standard Instrument LEP.  Prohibited development can be approved under the Standard Instrument LEP if it will only be temporary. Understandably, however, this is only possible if the development will not adversely impact on the future development of the land or on the residents of surrounding land.

The stated objective of clause 2.8 is to provide for the temporary use of land if the use does not “compromise future development of the land, or have detrimental economic, social, amenity or environmental effects on the land”.

The clause applies despite any other LEP provisions and allows a consent authority to grant consent for a “temporary use”.  A temporary use is one that is carried out for no more than 52 days in any year[1].  The 52 days may be consecutive but do not have to be; for example, a temporary use for the purposes of clause 2.8 could be one that takes place once a week for every week of the year or for a 52 day period once a year.

The 52 day limit does not apply to the temporary use of a dwelling as a sales office for a new release area or a new housing estate[2].

A temporary use can only be approved if the consent authority is satisfied that[3]:

(a) the temporary use will not prejudice the subsequent carrying out of development on the land in accordance with any applicable environmental planning instrument, and

(b) the temporary use will not adversely impact on any adjoining land or the amenity of the neighbourhood, and

(c) the temporary use and location of any structures related to the use will not adversely impact on environmental attributes or features of the land, or increase the risk of natural hazards that may affect the land, and

(d) at the end of the temporary use period the land will, as far as is practicable, be restored to the condition it was in before the use commenced[4].

Key aspects of Standard Instrument LEP clause 2.8

Clause 2.8 has been the subject of consideration in several decisions of the Land and Environment Court. The principal decisions are:

• Marshall Rural Pty Limited v Hawkesbury City Council [2015] NSWLEC 197; and
• EMRR Pty Limited v Murray Shire Council [2016] NSWLEC 144.

A number of key principles can be identified in these decisions:

1. The clause applies despite any other provision of the LEP and allows the approval of a temporary use of land that would otherwise be prohibited.
2. The temporary use may be approved for a maximum period of 52 days (whether or not consecutive days) in any period of 12 months.[5] The use can still be temporary even if it continues over a number of years or even indefinitely.
3. The 52 day maximum[6] does not include days spent preparing for or packing up following the actual event.
4. It is the use of the land that is temporary – the use may be carried out in permanent structures (such as stables, sheds etc).
5. To be capable of being approved under cl.2.8, the consent authority must be satisfied of each and every matter listed in cl. 2.8(3), i.e:
   • that the temporary use will not prejudice the future use of the land in accordance with the LEP or any other environmental planning instrument;
   •  that the temporary use will not adversely impact on any adjoining land or the amenity of the neighbourhood;
   • that the temporary use and location of any structures related to the use will not adversely impact on environmental attributes or features of the land, or increase the risk of natural hazards that may affect the land; and
   • at the end of the temporary use period the land will, as far as is practicable, be restored to the condition in which it was before the commencement of the use.
6. Clause 2.8(3)(b) imposes a different standard to that which applies in the consideration of an application to carry out development that is permissible  under the LEP. Rather than a consideration of whether the likely impacts associated with the development will be acceptable, the clause requires the    consent authority to be satisfied that there will be no adverse impact.
7. The assessment of impact should take into account the ameliorative effect of any conditions to be imposed on the development consent; however, the effect of those conditions must be to remove any impact, not merely to render the impact acceptable.

Marshall’s case

In Marshall’s case, the applicant challenged the validity of development consents granting approval for the temporary use of two barns as a “function centre”.  This use was a prohibited use in the relevant rural zone under the Hawkesbury Local Environment Plan 2012. Relevantly, Moore AJ (as he then was) described the nature of the cl 2.8 tests as follows:

[113] The nature of the activities that are capable of being permitted by an application invoking cl 2.8 are, I remind myself, activities that are otherwise prohibited in a zone.

[114]  That any application that is sought to be approved for such a prohibited use seeks a significant indulgence for such a substantial departure from the planning controls applicable to a zone is reflected in two aspects of the clause.

[115]  The first arises with respect to the temporal limitation mandated by the clause if such an otherwise prohibited use is to be permitted. This aspect of the clause was the subject of Marshall Rural’s first complaint, a complaint dealt with and dismissed in my rejection of Ground 1.

[116]  The second element engaged by these proceedings is the requirement that the proposal will “not adversely impact” in the fashion specified in cl 2.8(3)(b). This test, cast in absolute terms reflecting the seriousness with which an application of this nature is required to be assessed, 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.

With respect to the ‘temporal limitation’ referred to above at [115] the applicant had argued that cl 2.8 permitted development consent for a maximum period of 12 months from the date of consent.  The Court, however, held that the ordinary, obvious reading of cl.2.8 does not impose a second limitation in addition to the number of days in any period of 12 months and that it was open to the consent authority to grant a consent pursuant to cl 2.8 for any nominated limiting period or indeed one that was open-ended.

In relation to the second component, that the proposed development must not adversely impact any adjoining land or the amenity of the neighbourhood, the Court held that the Council had incorrectly proceeded on the basis that it needed to satisfied that the impact of the proposal would be ‘acceptable’ rather than that there would be no adverse impact. His Honour found that the path leading to error began with the acoustic assessment reports which assessed the application by reference to standards which envisaged merely an acceptable impact rather than an absence of adverse impact.

The Court then said that this error had been transmitted to the Council’s own assessment report which, although it referred to cl.2.8(3)(b) on several occasions, did not display a correct understanding of the ‘absolute’ nature of the threshold test imposed by the provision.  Moore J was critical of the fact that the assessment report did not caution the councillors that the test imposed by cl.2.8(3)(b) is in absolute terms and was therefore different from the test that is conventionally applied to the assessment of an ordinary development application.  In this regard, his Honour explained that the higher threshold reflected the fact that the development for which consent was being sought was otherwise prohibited.

The Court considered that the conditions formulated to address the impact of the proposed development also reflected the same incorrect presumption. Those conditions had sought to require compliance with the remedial acoustic measures recommended by the acoustic experts.  However, the Court pointed out that this would merely render the acoustic impact of the proposed development “acceptable” rather than resulting in the removal of any adverse impacts.

The EMRR decision

This was a Class 1 appeal in relation to the modification of an existing consent for a function centre to extend the period of its operation from one year to three years.  The applicant and the Council had participated in a s.34 conciliation conference, as a result of which they had resolved their differences. The owner of a neighbouring property, however, was given leave to intervene in the proceedings to argue that the Court lacked the legal power to approve the development.

The objector argued that the proposed development was prohibited by the Murray Local Environmental Plan 2011.  In doing so, he raised 2 contentions. The first was that there was a conflict between cl.2.8 (temporary uses) and another provision which prohibited development on river front areas.  The second was that, despite compliance with the restriction on the number of days on which the development would be carried out, the use of the land, on a continuous and regular basis, for the purpose of functions over a three year period could not really be described as a ‘temporary use’.

The Court rejected both arguments.

In relation to the first argument, the Court held that the prohibition of certain development on river front areas was no different to a prohibition in the Land Use Table.  Both were subject to cl.2.8.  The Court held that a temporary use may occur on land where such a use may otherwise be prohibited provided it meets the requirements of cl.2.8(3). Sheahan J noted that this conclusion was ‘consistent with Moore AJ’s excellent analysis in Marshall’.

In rejecting the second argument, the Court appears to have accepted the applicant’s argument that the prescription of a number of occasions in an identified time period means, in effect, a use which complies with the numerical controls is, by definition, to be regarded as a temporary use.  In coming to that conclusion the Court found that the requirement that the land only be used for the specified number of days did not mean that structures to facilitate that use could not be erected and remain on the land throughout the temporary use period.  The Court also found that the day limit did not include days on which ancillary activities were carried out, such as the construction and deconstruction of a marquee, inspections, bookings, deliveries and setting up. The days on which those ancillary activities were carried out, were held by the Court not to count in the calculation of the number of days on which the temporary use is carried out.

Alice and her team can help with any matters relating to this Essential Guide

GET IN TOUCH