EMRR Pty Ltd v Murray Shire Council

[2016] NSWLEC 144

Land and Environment Court

New South Wales

Medium Neutral Citation:	EMRR Pty Ltd v Murray Shire Council [2016] NSWLEC 144
Hearing dates:	25 July 2016
Date of orders:	11 November 2016
Decision date:	11 November 2016
Jurisdiction:	Class 1
Before:	Sheahan J
Decision:	Appeal upheld. See orders at [106].
Catchwords:	DEVELOPMENT APPLICATION – dispute about extension of the term of a consent for a “function centre” from one year to three years by deleting or modifying Council’s condition 8 – objecting neighbour joined as second respondent – Murray Local Environmental Plan 2011 (LEP) based on Standard Instrument – whether development on subject river front area prohibited by clause 7.4 of the LEP – interaction of clauses 2.8 and 7.4 of the LEP – whether development constitutes a temporary use of land for purposes of clause 2.8 – definition of temporary use – whether activities ancillary to the proposed temporary use of land should be included within the calculation of the maximum period allowed for temporary use
Legislation Cited:	Environmental Planning and Assessment Act 1979 Interpretation Act 1987 Land and Environment Court Act 1979 Murray Development Control Plan 2012 Murray Local Environmental Plan 2011 Murray Regional Environmental Plan No 2 – Riverine Land
Cases Cited:	Alcan NT (Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 AMP Inc v Utilux Pty Ltd [1972] RPC 103 Anthony Hordern and Sons Ltd v The Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 Australian Alliance Assurance Co Ltd v Attorney General (QLD) [1916] St R Qd 135 Beckwith v R (1976) 135 CLR 569; 12 ALR 333 Botany Bay City Council v Minister for Local Government & Ors (2016) 214 LGERA 173 Cody v JH Nelson Pty Ltd (1947) 74 CLR 629 Castle Constructions Pty Ltd v North Sydney Council (2007) 155 LGERA 52 Coffs Harbour Environment Centre Inc v Minister for Planning (1994) 84 LGERA 324 Collector of Customs v Agfa-Gevaert Limited (1996) 186 CLR 389; 141 ALR 59; [1996] HCA 36 Commissioner for ACT Revenue v Dataflex Pty Ltd [2011] ACTCA 14; (2011) 5 ACTLR 271; 252 FLR 50 Commonwealth v Baume (1905) 2 CLR 405 Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; 35 ALR 151 Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379 Davies and Jones v Western Australia (1904) 2 CLR 29; [1904] HCA 46 Ferdinands v Commissioner for Public Employment (2006) 225 CLR 130; [2006] HCA 5 Hecar Investments No. 6 Pty Ltd v Lake Macquarie Municipal Council (1984) 53 LGRA 322 Institute of Patent Agents v Lockwood [1894] AC 347 Ireland v Johnson, CEO Department of Corrective Services [2009] WASCA 162; (2009) 189 IR 135 Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672; 24 ALR 513 Lyons, Neville William & Anor v Registrar of Trade Marks & Anor (1983) 50 ALR 496; [1983] FCA 252 Marshall Rural Pty Ltd v Hawkesbury City Council and Ors [2015] NSWLEC 197 Matic v Mid-Western Regional Council [2008] NSWLEC 113 Maunsell v Olins [1975] AC 373; [1975] 1 All ER 16 Meriton Apartments Pty Ltd v Parramatta City Council [2003] NSWLEC 309 Mills v Meeking (1990) 169 CLR 214; 91 ALR 16; [1990] HCA 6 Minister for Resources v Dover Fisheries Pty Ltd (1993) 43 FCR 565; 116 ALR 54 Mount Isa Mines Limited v FCT (1976) 10 ALR 629 Parry v Osborn [1955] VLR 152 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; 153 ALR 490; [1998] HCA 28 Refrigerated Express Lines (A/Asia) Pty Ltd v Australian Meat & Live-stock Corp & Ors (1980) 29 ALR 333 R v Wallis; Ex parte Employer’s Association of Wool Selling Brokers (1949) 78 CLR 529 Salemi v MacKellar (No 2) (1977) 137 CLR 396 Singh v The Commonwealth (2004) 222 CLR 322 Truman v Truman [2008] FamCAFC 4; (2008) 216 FLR 365 Wood v Riley (1867) LR 3 CP 26
Category:	Principal judgment
Parties:	EMRR Pty Ltd (Applicant) Murray Shire Council (First respondent) Mark Alan Pearce (Second respondent)
Representation:	Counsel: Mr C McEwen, SC (Applicant) Ms J Reid, barrister (First respondent) Mr M Seymour, barrister (Second respondent)   Solicitors: Mills Oakley (Applicant) Kell Moore Lawyers (First respondent) Cosgriff Lawyers (Second respondent)
File Number(s):	2016/151424

Judgment

Introduction

1. This Class 1 appeal concerns a proposal to extend the period of Council’s consent for a “function centre” from one year to three years, by deleting condition 8 from Council’s consent, and substituting a different text.

2. The centre will augment (as “an additional use” – Tp42, L11) an existing and approved tourist facility, known as “Tindarra Resort”, situated on land close to the Murray River, near Moama. The subject land is zoned “E3 Environmental Management”.

3. The proposed centre will utilise a concrete slab already constructed on the site, within the 60 m setback from the river (see Exhibit A4), and a pre-existing “out-building”.

4. The intention is to erect a marquee on the slab, when required for events, and use the “out-building” as a bar (see photographs in Exhibit C4). The target market is weddings etc., for which customers of the centre would often seek to make a booking more than one year in advance (Tp52).

5. The present appeal was commenced on 23 March 2016, and the applicant contended (Exhibit A1, contention 1.1) that:

Condition 8 should be modified to grant consent for the temporary use of the Land for a function centre for a maximum of fifty-two (52) days in each twelve month period for a minimum period of three (3) years and that consent should lapse three (3) years from the date of the first function conducted in accordance with the granting of development consent.

6. On 1 June 2016, the applicant and the Council agreed upon the terms of an agreement under s 34 of the Land and Environment Court Act 1979 to resolve the appeal. Those terms included the controversial three year period.

7. When informed of that agreement, the now second respondent, Mark Alan Pearce, who resides approximately 100 m from the subject site, in a low density residential area, and had been an objector, successfully moved the Court to be joined in the proceedings, so that the issue of “power” might be “sufficiently addressed”.

8. Pearce primarily contends that Council lacks power to grant the relevant approval because the subject development is “prohibited” by the Murray Local Environmental Plan 2011 (“the LEP”), notably cl 7.4 (Cosgriff affidavit, 2 June 2016, par 5). In his submissions (par 2), in support of Pearce’s joinder, his counsel (Mr Seymour) raised two contentions relevant to the power question:

(1) ... the conflict between clauses 7.4 and 2.8 of [the LEP]; and

(2) ... the question of the proper characterisation of “temporary” uses for the purposes of clause 2.8 of the LEP.

9. The proposed s 34 agreement hearing was vacated, and the appeal listed before me for determination.

10. The relevant land use table in the LEP, for the “E3 Environmental Management” zone, prohibits the “function centre” use, but the LEP contains some particular provisions upon which the parties rely to overcome that prohibition.

11. There was no affidavit or oral evidence in the appeal, but principal among the documentary exhibits was Council’s bundle of relevant documents (Exhibit C1).

The Planning Regime

The LEP

12. Clause 1.2(1) of the LEP (Exhibit C1, tab 1) makes clear that it adheres to the relevant Standard Instrument under s 33A of the Environmental Planning and Assessment Act 1979 (“the EPA Act”) (Exhibit C2).

13. The following provisions of the Standard Instrument (Local Environmental Plans) Order 2006 (“the SI Order”) are to be noted:

4   Mandatory provisions of the standard instrument

(1)   The mandatory provisions of the standard instrument prescribed by this Order are as follows:

(a)   provisions identified in the standard instrument as compulsory provisions (whether in all cases or only those cases prescribed by the standard instrument),

(b)   provisions identified in the standard instrument as optional provisions if a decision is made to adopt the provisions when the plan is made.

(2)   If an optional provision is to be adopted, it is to be adopted without variation (subject to any relevant direction in the standard instrument). An optional provision that is so adopted is the provision as in force under this standard instrument from time to time.

(3)   If a compulsory provision is not applicable because of the circumstances referred to in the heading to the provision, the number or other identifier of the provision is to be set out in the plan with the the words “[Not applicable]” or words to the same effect.

(4)   If an optional provision is not to be adopted, the number or other identifier of the provision is to be set out in the plan with the words “[Not adopted]” or words to the same effect.

Note. In the standard instrument, provisions are identified as “compulsory” (including in certain cases only) or “optional” by those words being placed in brackets in connection with the clause or other discrete provision or provisions concerned.

When the Order is amended to make changes to the mandatory provisions of the standard instrument, then any local environmental plan (or draft plan) that adopts those provisions will be automatically amended to reflect the changes (section 33A (4) of the Act). When this happens existing plans on the NSW Legislation website will be updated.

In relation to the numbering of clauses, the standard instrument adopts a Part decimal numbering system. That is, each clause has 2 numbers separated by a decimal point, the first being the number of the Part in which the clause appears and the second being the appropriate consecutive number according to the position of the clause in the Part. For example, the first clause in Part 4 is clause 4.1 followed by clauses 4.2, 4.3 and so on, while Part 5 begins with clause 5.1 followed by clause 5.2 etc.

5   Additional provisions

(1)   Additional provisions may be included in the plan, but only if they are not inconsistent with the mandatory provisions of the standard instrument and comply with any relevant directions in that instrument.

(2)   Additional provisions included in the plan are to be numbered in accordance with the usual protocol applicable to amendments made to existing Acts and statutory instruments to include additional provisions.

Note. When the standard instrument is amended by a future Order to add a mandatory clause in Parts 1–5, the new clause will ordinarily be added at the end of the relevant Part with sequential numbering. However, if it is necessary to add a new mandatory clause between existing clauses of the standard instrument, it will have a number with double lettering (eg clauses 4.2AA and 4.2BB would appear between clauses 4.2 and 4.3). Only mandatory provisions added by an Order will use double lettering in this manner, and the same convention applies to any additional mandatory subclauses and paragraphs that are inserted in an existing clause. If a whole Part is added by an Order, it will also have double lettering (eg Part 5AA, with clauses starting at 5AA.1) so as to distinguish the Part from any additional non-mandatory (or local) Part that may be included in a local environmental plan that has adopted the standard instrument.

In the case of additional non-mandatory (or local) provisions of a local environmental plan that has adopted the standard instrument, an additional Part will ordinarily be added after Part 5 with a sequential Part number (eg Parts 6, 7 etc) and clauses in that Part will have sequential numbers (eg clauses 6.1, 6.2 or 7.1, 7.2 etc). However, if it is necessary to add a non-mandatory Part between any of the Parts of the standard instrument, it will have a number with single lettering (eg Part 4A, with clauses starting at clause 4A.1). Any additional non-mandatory clause that appears in Parts 1–5 will also be numbered with the letter “A” or “B” etc, whether it is included at the end of the mandatory Part or between clauses in a mandatory Part). Single lettering will also be used for additional non-mandatory subclauses, paragraphs or subparagraphs that are inserted in a mandatory clause in Parts 1–5.

14. Clause 2.3(1) of the LEP itself draws attention to the prescription of objectives for each land use zone, and cl 2.3(2) requires the consent authority to “have regard to” such objectives, but cl 2.3(4) makes the clause “subject to the other provisions” of the Plan.

15. Clause 2.8 of the LEP is drawn from the Standard Instrument, and provides:

Temporary use of land

(1)   The objective of this clause 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.

(2)   Despite any other provision of this Plan, 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.

(3)   Development consent must not be granted unless the consent authority is satisfied that:

(a)   the temporary use will not prejudice the subsequent carrying out of development on the land in accordance with this Plan and any other 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 in which it was before the commencement of the use.

(4)   Despite subclause (2), the temporary use of a dwelling as a sales office for a new release area or a new housing estate may exceed the maximum number of days specified in that subclause.

(5)   Subclause (3) (d) does not apply to the temporary use of a dwelling as a sales office mentioned in subclause (4).

16. Clause 2.8 has been judicially considered – by Moore AJ (as His Honour then was) in Class 4 proceedings, Marshall Rural Pty Ltd v Hawkesbury City Council & Ors (“Marshall”) [2015] NSWLEC 197, especially at [55] – [60] and [112] – [126], and I respectfully adopt His Honour’s analysis without repeating it.

17. The objectives of the E3 zone (in the table at the end of Part 2 of the LEP) are:

•   To protect, manage and restore areas with special ecological, scientific, cultural or aesthetic values.

•   To provide for a limited range of development that does not have an adverse effect on those values.

18. Part 3 of the LEP provides for “exempt” and “complying” development (cls 3.1 and 3.2 respectively), and cl 3.3 (also taken from the Standard Instrument) relevantly provides:

Environmentally sensitive areas excluded

(1)   Exempt or complying development must not be carried out on any environmentally sensitive area for exempt or complying development.

(2)   For the purposes of this clause:

environmentally sensitive area for exempt or complying development means any of the following:

...

(fa)   land in a river front area,

...

19. Part 4 contains “Principal development standards”, Part 5 “Miscellaneous provisions”, and Part 6 provisions regarding “Urban release areas”.

20. Part 7 contains “Additional local provisions”, concerning Essential Services (cl 7.1), Earthworks (cl 7.2), and Biodiversity protection (cl 7.3).

21. Clause 7.4 relevantly provides:

Development on river front areas

(1)   The objectives of this clause are as follows:

(a)   to support natural riverine processes, including the migration of the Murray and Wakool Rivers’ channels,

(b)   to protect and improve the bed and bank stability of those rivers,

(c)   to maintain and improve the water quality of those rivers,

(d)   to protect the amenity, scenic landscape values and cultural heritage of those rivers and to protect public access to their riverine corridors,

(e)   to conserve and protect the riverine corridors of those rivers, including wildlife habitat.

(2)   Despite any other provision of this Plan, development consent may only be granted to development on land in a river front area for the following purposes:

(a)   boat building and repair facilities, boat launching ramps, boat sheds, charter and tourism boating facilities or marinas,

(b)   the extension or alteration of an existing building that is wholly or partly in the river front area, but only if the extension or alteration is to be located no closer to the river bank than the existing building,

(c)   environmental protection works,

(d)   extensive agriculture and intensive plant agriculture,

(e)   environmental facilities and recreation areas,

(f)   water recreation structures.

(3)   Development consent must not be granted under subclause (2) unless the consent authority is satisfied of the following:

(a)   that the appearance of the development, from both the river concerned and the river front area, will be compatible with the surrounding area,

(b)   that the development is not likely to cause environmental harm, including (but not limited to) the following:

(i)   pollution or siltation of the river concerned,

(ii)   any adverse effect on surrounding uses, riverine habitat, wetland areas or flora or fauna habitats,

(iii)   any adverse effect on drainage patterns,

(c)   that the development is likely to cause only minimal visual disturbance to the existing landscape,

(d)   that continuous public access, and opportunities to provide continuous public access, along the river front and to the river concerned are not likely to be compromised,

(e)   that any historic, scientific, cultural, social archaeological, architectural, natural or aesthetic significance of the land on which the development is to be carried out and of surrounding land is to be maintained.

22. Part 7 goes on to deal with other matters which are relevant to the Murray and its environs, but of no direct concern to the present case.

23. Part 7 is followed by a series of 5 schedules, and then a Dictionary, which includes the following definitions:

entertainment facility means a theatre, cinema, music hall, concert hall, dance hall and the like, but does not include a pub or registered club.

function centre means a building or place used for the holding of events, functions, conferences and the like, and includes convention centres, exhibition centres and reception centres, but does not include an entertainment facility.

river front area means:

...

(b)   in Zone ... E3 Environmental Management—the land within 100m of the top of the bank of the Murray or Wakool River.

The REP

24. The Murray Regional Environmental Plan No 2 – Riverine Land (“the REP” – Exhibit C1, tab 2) defines the following relevant terms (cl 6):

Murray River means the waters of the main channel of the Murray River and its bed and banks.

River Murray means the Murray River, the waters and the bed and banks of its tributaries and associated water bodies (including related anabranches, creeks, lagoons, lakes, billabongs and wetlands), as shown on the map.

25. Part 2 sets out “Planning Principles”, and cl 8(b) makes clear that that Part applies when a “consent authority determines a development application”.

26. Clause 10 in Part 2 includes the following “Specific Principles”, which “must be taken into account” when Part 2 applies:

Access

*   The waterway and much of the foreshore of the River Murray is a public resource. Alienation or obstruction of this resource by or for private purposes should not be supported.

*   Development along the main channel of the River Murray should be for public purposes. Moorings in the main channel should be for the purposes of short stay occupation only.

*   Human and stock access to the River Murray should be managed to minimise the adverse impacts of uncontrolled access on the stability of the bank and vegetation growth.

...

River related uses

*   Only development which has a demonstrated, essential relationship with the river Murray should be located in or on land adjacent to the River Murray. Other development should be set well back from the bank of the River Murray.

*   Development which would intensify the use of riverside land should provide public access to the foreshore.

The DCP

27. The Murray Development Control Plan 2012 (“the DCP” – tab 3) contains a special section (“10” – fols 158 – 162) on “Watercourses and Riparian Land”.

The Subject Development

28. The attachments to the relevant development application (“DA” – Exhibit C1, tab 4) include a report prepared for the applicant, containing also a Statement of Environmental Effects (“SEE”). The report describes the proposal as follows (fol 192):

The proposal is to conduct a number of events at the resort such as weddings and other special occasions. The number of events cannot be predicted but will be within the maximum number of 52 per any 12 month period permissible under Clause 2.8(2) of the [the LEP] for the “temporary use of land”.

The events will be undertaken within and around a marquee adjoining a fixed structure housing a bar (see Figures 3, 4 & 5 and Attachment ‘A’). Events will be contained within the area shown in Figure 2. The proposal also includes a paved hardstand area, but this does not require development consent (see section 4.1 below).

29. It notes (fol 198) that cl 7.4:

... would prevent the proposal if it was to be a permanent structure. However, as identified earlier, Clause 2.8 of [the LEP] overrides the restriction. This clause therefore is not matter (sic) for consideration and does not prevent Council from consenting to the application.

30. An acoustic assessment on behalf of Tindarra was also included (tab 5), and studied a wedding event held on the site.

31. Three objections to the DA, are included in the Council bundle (at tab 6), including one from Mark and Kim Pearce (fol 227). The Pearces say that they had been “instructed by the resort managers to expect regular weekend functions from October through until May, which represents the wedding season and a busy tourist time in Echuca Moama in general”.

Council’s Consideration

32. The Council officers’ 54-page assessment report (Exhibit C1, tab 7) noted, in its executive summary (Section 1.1, pp22 – 23):

The proposal submitted by the Applicant seeks approval for the temporary use of part of the land for functions, installation of 300m² temporary structure (marquee), formalisation of existing bar structure, and car parking facilities to service the proposed marquee and bar. It is noted that the subject site currently contains a temporary structure (marquee) which has been erected without development consent, however this marquee is not the temporary structure the subject of this Application.

The Applicant has applied for temporary use of land under Clause 2.8 of the Murray LEP 2011 and therefore any consent issued in respect of this application would permit the operation of the temporary use fifty-two (52) times in a twelve (12) month period only, and consent would lapse upon the conclusion of that 12 month period. Ongoing consent is not permitted under this clause. The Applicant is unable to reapply for the same temporary use upon the lapse of the consent, as this would constitute ongoing approval and therefore would be inconsistent with the objective Clause 2.8 to provide for a 'temporary use of land'.

The subject marquee is proposed to be erected upon an existing 15.5m x 31m (480.5m²) concrete slab which was completed as exempt development under SEPP 2008 (Subdivision 28, subsection 2.55 and 2.56- Paving). The concrete slab has been constructed approximately 14m from the Murray River (at its closest point). At the time of inspection, a 10m x 20m (200m²) marquee was erected on the slab.

The bar structure is already in place and erected on an additional 11.5m x 10.5m (125m²) concrete slab (connected to the marquee slab) which is located approximately 3.5m from the Murray River at its closest point. The wooden posted structure clad in corrugated iron has been fitted out with a bar and sitting area and is connected to electricity, raw and filtered water. There does not appear to be an approval held in Council records relating to this structure.

It is noted that the Applicant is already using the bar structure and an existing marquee structure for wedding functions without appropriate approval, which has resulted in complaints to Murray Shire regarding the noise generated. As part of the public consultation of this application, three (3) public submissions were received objecting to the proposal. Further details of public submissions are included in the Submissions section of this report.

It is considered that the proposed development is not inconsistent with the aims of Murray LEP 2011 and is consistent with the objectives and controls of the Murray DCP 2012. The application is inconsistent with a development principle set out in Murray REP2 (River related uses), however Council staff are satisfied that the inconsistency with the planning principle does not pose a detrimental impact to riverine land, the Murray River, or the biodiversity of the site. The Applicant has submitted a Request for Variation to a Development Standard which will be detailed in Section 3.2(a)(I)(c) of this report.

The Application was referred to all required local and government authorities for comment who have issued their respective conditions of consent supporting the proposal.

Consent issued in respect of this development application will provide temporary consent for use of the proposed 300m2 marquee and the existing bar facility already being utilised at the tourist resort as a temporary function centre.

The proposal is not deemed to pose a detrimental environmental or economic impact for the site or the locality, and with effective noise abatement, should not present a social impact to the current amenity of surrounding land holders. Therefore, it is recommended that the proposed development be granted temporary approval under Clause 2.8 of the Murray LEP 2011 with recommended conditions of consent.

33. Special attention was paid in the report to the proposals in respect of vehicle parking (at p27, and see Exhibit A4, sheet 2, and Exhibit C1, fol 279). The report found those proposals “deficient” in terms of the DCP, but does not criticise the proposed use of riverine grassed areas.

34. The report noted (at p50):

The nature of the proposed development poses minimal environmental impact. The existing bar structure does not require any further works, and the proposed marquee will be bolted to the existing concrete slab in accordance with the manufacturers specifications. The minor earthworks associated with the proposed car parking area are not predicted to pose any significant impact. The temporary use will not increase erosion and no significant native vegetation will be removed as a result of the development. The development site is located in an area that is already significantly disturbed by human activity and therefore is deemed to present a minimal risk to any wetland. There is no foreshore access proposed as part of the subject development.

35. The report reached a conclusion (p70) generally favourable to the proposal, and recommended that:

... [DA] 175/14 for the formalisation of temporary structure (marquee) for functions, temporary use of existing bar structure and car parking facilities be granted approval and the following conditions included with the consent.

36. The recommended conditions (nos 4 and 5, p71) included amendments to the Resort’s “Emergency Management Plan” and “Event Management Plan” (existing plans before the Court in Exhibit A5).

37. Council considered the proposal, and the assessment report, at its meeting on 8 December 2015 (minutes at tab 8). Ultimately, Council resolved by majority (p38) to grant approval, subject to an amendment of the proposed noise condition (no 14).

The Consent

38. The Notice of Determination (at tab 9) described the approved development (fol 268) as:

Temporary use of the land as a functions centre, installation of Temporary Structure (Marquee), Temporary formalisation of exisiting (sic) bar structure, and car parking facilities

39. Condition 7 of the consent (fol 270) made clear that the “temporary structure must not be used as an entertainment venue”, defined as “a building used as a cinema theatre or concert hall or an indoor sports stadium”.

40. Condition 8 (fol 270) provided (emphasis mine):

The subject consent grants temporary approval for a maximum of fifty-two (52) days in one (1) twelve (12) month period. The subject temporary consent will lapse upon the completion of the temporary use for 52 days, or the lapse of the 12 month period of consent, whichever occurs first. Upon the lapse of temporary consent, the temporary structure (marquee) is to be completely removed from the site as soon as practically possible and no later than 10am the morning after the final day of the temporary use. Once this temporary consent has lapsed, Tindarra Resort is not permitted to utilise the site as a 'function centre' without obtaining appropriate development consent from Murray Shire Council. At the end of any consent issued for the proposed temporary use of land, the land will, as far as practicable, be restored to the condition in which it was before the commencement of the subject temporary use.

This Appeal

41. The present class 1 appeal against the notice of determination was lodged with the Court on 23 March 2016, seeking that condition 8 be deleted/modified ([5] above).

42. In its draft conditions (Exhibit A2 – not pressed: Tp46, LL19 – 23), the applicant had proposed the following as condition 8 (emphasis again added):

This development consent grants temporary approval for a maximum of fifty two (52) days per year for a three (3) year period commencing from the date of operation of this consent. The consent will lapse after the three (3) year period or upon the temporary use being carried out for fifty two (52) days in the third year, whichever comes first. Upon the commencement of any period where an event is not scheduled for the next eight (8) weeks or more, all structures associated with the temporary use of the land, including portable toilets and marquee, will be dismantled and removed. If this period expires, then any of the structures associated with the temporary use of the land (including toilets) are to be re-erected or reinstalled no earlier than seven (7) days prior to the next event. Upon the lapsing of the consent, the temporary structure (marquee and any portable toilets) shall be removed from the land and the land will be restored, as far as is practicable, to the condition it was before the commencement of the use. Once the consent has lapsed the land cannot be used for the purposes of a function centre without prior consent being granted for such use.

43. The proposed s 34 agreement, and now the Council’s final draft conditions of consent (Exhibit C3), proposed no change to condition 7, but included an amended condition 8 in the following terms (emphasis added):

The subject consent grants temporary approval for a maximum of fifty two (52) days per year for a minimum three (3) year period commencing from the date of operation of this consent. The subject development consent will lapse upon the completion of the temporary use being carried out on fifty two (52) days per year for a maximum three (3) year period whichever comes first. Upon the lapsing of the consent, the temporary structures (marquee and toilet facilities) shall be removed from the land and the land shall be restored to the condition it was in prior to the temporary use commencing. Once the consent has lapsed the land cannot be used for the purposes of a function centre without prior consent being granted for such a use.

44. The second respondent proposed the following text for condition 8 (Exhibit P1 – emphasis added):

Development consent is granted for the temporary use of the land nominated in the application for a function centre holding events for not more than fifty two (52) days in any calendar year for a period of twelve months.

The consent will lapse on the expiry of the fifty second day of events or one year from the date of the grant of the consent (whichever occurs first).

All structures and materials used for an event will be dismantled and removed as soon as practicable following completion of an event. Such structures and materials may be erected and placed on the area within a reasonable period before an event commences. The time taken to install or place materials before an event and to remove materials after an event is included in the fifty two days the use is permitted.

Upon the lapsing of the consent all structures are to be removed from the land as soon as practicable and the event area restored to the condition it was in before the commencement of the use.

45. However, the second respondent also proposed (in Exhibit P1) a new condition 1A in these terms (emphasis added):

1A. Prior to the commencement of any use of the land for the purposes of a temporary function centre the Applicant is to prepare a consolidated plan of management for the approval of the Council. The Plan of Management is to include the information required under conditions 1, 2, 3, 4, 5, 6 and refer to the requirements in condition 10 (including when amplified music must cease playing), 11 (including the total number of people permitted at the events area at any time), 14, 17 (including a requirement for the prior approval of Council), 20, 22 and the General Requirements.

The Plan of Management is also to include details for:

(a)   amendment which requires prior approval of the Council;

(b)   complaints handling and management response;

(c)   provision of the Plan to all staff responsible for holding or running events and certification that all such persons are aware of the requirements of the conditions of consent and the Plan;

(d)   the preparation of a register of events, to be kept on the premises at all times and available for inspection by the Council including days allocated to the preparation of or clean-up for all events;

46. The applicant provided (Exhibit A3) a description of how the function centre would be operated.

47. In fairness, and so that all important information is on the public record, I now set out some key points from that description:

1.   Set up of the marque [sic], chairs and tables

•   Erection of marquee takes approx. 2-3 days to complete. Dismantling costs of the marquee are approximately $2,000 on each occasion. The applicant will comply with condition 8 in the form proposed by the applicant.

•   Tables and chairs are taken from storage facility (outside of riverfront area) prior to the event and arranged as per the client's brief.

...

3.   Food - Arrival and storage

•   The resort owns a mobile kitchen which is stored onsite for the resort's use at all times. It has wheels and can be towed into position at time (sic) of the erection of the marquee.

•   Food arrives with the catering staff on the day of the event. Occasionally prep work is carried out onsite in the mobile kitchen in the days leading up to the event.

...

4.   Drinks

•   There are existing bar facilities in a nearby tin shed which is used for the events. This area operates under a current 'on premises' liquor licence.

5.   Music

•   Music/entertainment is outsourced. Setup usually occurs on the day of the event and is removed after the event (may be after midnight of the event day).

...

6.   Toilets

•   Toilets are an ATCO style demountable ablution block which is placed on temporary foundations and plumbed into existing sewer line.

7.   Dismantling of all structures

...

•   While the nature of the events area is temporary, when events occur on consecutive weekends or in close proximity to one another, it is impractical to dismantle the marquee and infrastructure between events. This typically occurs during high season, between September and May each year. It is not uncommon to occur outside of this period also.

8.   Event planning

•   The applicant requires consent for the temporary use for a period of three years because it is common for requests to be made for the holding of events more than 12 months in advance of the event. The applicant wishes to be in a position to guarantee at the time of taking the booking that it can honour any requests.

The Two Appeal Contentions

48. Two contentions were raised by the second respondent (see (Exhibit P3, items 1 and 2):

The Court cannot grant consent under s 80(1)(a) of the Environmental Planning and Assessment Act 1979 (the EPA Act) because the development proposed in Development Application DA 175/14 (Application) is prohibited development by operation of clause 7.4 of the Murray Local Environmental Plan 2011 (the LEP).

Particulars

(i) The site of the development proposed in the Application is “river front land” as that term is defined in the Dictionary of the LEP.

(ii) As the Application proposes development on river front land, clause 7.4 of the LEP applies in the assessment of the Application under s 79C(1)(a)(i) of the EPA Act.

(iii) Clause 7.4(2) of the LEP limits the power of the Court to grant consent to development proposed on river front land to nominated development.

(iv) The development proposed in the Application is not nominated development within clause 7.4(2) of the LEP.

(v) Accordingly, the development proposed in the Application is properly characterised as prohibited development for the purposes of s 76B(1)(a) of the EPA Act.

(vi) Clause 7.4 of the LEP expressly and impliedly excludes the operation of clause 2.8 of the LEP.

The Court cannot grant consent because the land use proposed in the Application, as a continuous and regular use of land for the purpose of functions over a three year period, cannot be properly characterised as a “temporary use” for the purposes of clause 2.8 of the LEP.

Particulars

(i) Clause 2.8 of the LEP must be read in the context of the LEP as a whole. The land the subject of the Application has a land use zoning with particular nominated land uses that are permissible with consent or prohibited. The zoning also includes the objectives for that zone which highlight and underline the strategic, and hence orderly and economic, goals for the particular land.

(ii) Read strictly, clause 2.8 of the LEP would render the entire system of land use zoning redundant provided any use approved under that clause was limited in time. This cannot be the intention of the clause. Rather, there must be a negative limitation –arising from implication of the LEP as a whole- such that any use approved under clause 2.8 of the LEP must be immediately capable of recognition as a “temporary use” of land. That is, there is an immediately observable distinction between a temporary use for a function and the on-going and regular land use as a function centre within a particular period of time. The latter is permissible under clause 2.8 but it is submitted that the latter is not unless it is also permissible in the land use table for the particular zone.

(iii) Alternatively, the nature of the use proposed in the Application, having the potential for amenity impacts on neighbouring properties, requires a proper temporal limit to be imposed in to comply with clause 2.8 of the LEP. That period should be set at 12 months.

(iv)   The decision in [Marshall] concerned the interpretation of the phrase “in any 12 month period”. The arguments put above concerning characterisation were not made or considered. The decision does not bind the Court to make findings that the arguments to be put above cannot be put and do not need to be considered.

Contention 1 – Is there conflict between clauses 2.8 and 7.4 of the LEP?

49. This contention is that the applicant’s proposed temporary use of land is prohibited upon the proper construction of the LEP, as cl 7.4 of the LEP operates to prohibit that temporary use, despite cl 2.8 of the LEP.

49. The second respondent’s contention in this respect was re-stated (subs 10 to 14) in this way:

10. … clause 7.8(2) of the [LEP] is a relevant matter for consideration by reference to s 79C(1)(a)(i) of the EPA Act. Application of that clause is “[d]espite any other provision” of the [LEP]. Further, the application of that clause limits the permissible classes of development to those specifically described in sub-clauses 7.8(2)(a)-(f). Development for the purpose of a function centre, even if temporary, is not one of the nominated types of development.

11. The first question for the Court is therefore whether clause 2.8 of the [LEP] operates to overcome this restriction on the types of development that may be carried out on the Site.

12.   The intention of the instrument is not immediately made clear by the text used in the two provisions. Each is expressed to operate “despite any other provision”. This gives no clear indication which of them is to have a primary or paramount operation.

13.   Accordingly, other considerations will necessarily guide the act of statutory construction. That is, as the text does not of itself give sufficient guidance, there is a choice to be made as to the better construction.

14. It is submitted that the better construction is that clause 7.4 is intended to deliberately narrow the types of development that may be carried out on river front areas and that the textual and contextual indicators support adoption of this construction over the alternative.

51. Principally relevant to resolution of the ostensible conflict between these two provisions, as acknowledged by the Council, are the general principles relating to interpretation of delegated legislation (Council subs 4 – 5).

52. The LEP is an instrument made under Part 3, Division 4 of the EPA Act, and as such is a form of delegated legislation. The general principles relevant to interpretation of Acts of Parliament are, therefore, relevant to its construction: Collector of Customs v Agfa-Gevaert Limited (1996) 186 CLR 389; 141 ALR 59; [1996] HCA 36, at 65; Parry v Osborn [1955] VLR 152; see also discussion by Gleeson CJ in Singh v The Commonwealth (2004) 222 CLR 322, especially at [19].

53. A number of common law principles of interpretation relevant to the proper construction of cls 2.8 and 7.4 of the LEP were cited by the Council (subs 5):

1. A purposive and practical approach is to be taken to the whole of the instrument: Mills v Meeking 169 (1990) CLR 214; 91 ALR 16; [1990] HCA 6, at [19]; and Hecar Investments No. 6 Pty Ltd v Lake Macquarie Municipal Council (1984) 53 LGRA 322, at 323;

2. All words in the instrument are to have meaning and effect: Commonwealth v Baume (1905) 2 CLR 405, at 414, per Griffith CJ; Beckwith v R (1976) 135 CLR 569, at 574; 12 ALR 333, at 337, per Gibbs J; Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672, at 679; 24 ALR 513, at 518-519, per Mason J, (with whom Barwick CJ and Aickin J agreed, at 674/515, and 680/519 respectively);

3. General words are also to be given their plain and ordinary meaning, unless the contrary is shown: Cody v JH Nelson Pty Ltd (1947) 74 CLR 629, at 647, per Dixon J; Maunsell v Olins [1975] AC 373, at 382; [1975] 1 All ER 16, at 18, per Lord Reid; Ireland v Johnson, CEO Department of Corrective Services [2009] WASCA 162; (2009) 189 IR 135, at [31], per Miere J (with whom Wheeler and Pullin JJA agreed), at 136); Commissioner for ACT Revenue v Dataflex Pty Ltd [2011] ACTCA 14; (2011) 5 ACTLR 271; 252 FLR 50, at [42];

4. All words must, prima facie, be given some meaning and effect: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; 153 ALR 490; [1998] HCA 28; at [71], per McHugh, Gummow, Kirby and Hayne JJ;

5. All words must be construed to produce “the greatest harmony and the least inconsistency”: Australian Alliance Assurance Co Ltd v Attorney General (QLD) [1916] St R Qd 135, at 161, per Cooper CJ; Truman v Truman [2008] FamCAFC 4; (2008) 216 FLR 365, at [82];

6. Where two provisions in a single piece of legislation initially appear to be in conflict, it is “improbable that the framers of legislation could have intended to insert a provision which has virtually no practical effect, [and] one should look to see whether any other meaning produces a more reasonable result: Minister for Resources v Dover Fisheries Pty Ltd (1993) 43 FCR 565, at 574; 116 ALR 54, at 63, per Gummow J; and

7. Interpretation is to give effect to the evident purpose or object of the instrument: Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; 35 ALR 151; Davies & Jones v Western Australia (1904) 2 CLR 29; [1904] HCA 46, noting that, where a provision in delegated legislation is so ambiguous that no meaning can be given to it, it may be found that the delegation has not been properly exercised, and the provision will be held to be ultra vires: s 33 Interpretation Act 1987

54. A number of established principles of construction were also submitted by the applicant (subs 5), to guide the interpretation of the abovementioned provisions, and were said to favour the permissibility of the proposed development:

5.1   Environmental planning instruments are a species of delegated legislation, a statutory instrument (s 3 Interpretation Act 1987) and should be interpreted in accordance with the general principles of statutory interpretation … A construction should be preferred that is consistent with the language and purpose of all the provisions of such instruments … [see Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379 at 388].

5.2   The principles of statutory construction are well settled: ‘The task of statutory construction must begin with a consideration of the text (of the legislation)’: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at [47]. The meaning of text may require consideration of its context, which includes the general purpose and policy of a provision: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 [see Botany Bay City Council v Minister for Local Government & Ors (2016) 214 LGERA 173 at [37]].

5.3   The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined ‘By reference to the language of the instrument viewed as a whole’. In Commissioner for Railways (NSW) v Agalianos (47), Dixon CJ pointed out that ‘the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed.’ Thus, the process of construction must always begin by examining the context of the provision that is being construed.

A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the Court ‘to determine which is the leading provision and which is the subordinate provision, and which must give way to the other.’ Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.

Furthermore, a Court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume, Griffith CJ cited R v Berchet to support the proposition that it was ‘a known rule in the interpretation of statutes that such a sense is to be made upon the whole as that no clause, sentence or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent [see Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at [69]-[71]].

5.4   In dealing with an apparent conundrum such as that presented by [provisions in the one instrument] … the Court should strive to avoid a capricious or irrational result and seek to give each provision a field of operation. In AMP Inc v Utilux Pty Ltd [1972} RPC 103 at 109, Lord Reid said that, it being improbable that the framers of legislation could have intended to insert a provision which has virtually no practical effect, one should look to see whether any other meaning produces a more reasonable result [see Minister for Resources v Dover Fisheries Pty Ltd (1993) 43 FCR 565; 116 ALR 54, at 63, per Gummow J].

5.5   In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object [see Section 33 Interpretation Act 1987].

55. The applicant rejected any suggestion of inconsistency in substance between cls 2.8 and 7.4, upon the proper construction of the LEP, notwithstanding that each clause, as a matter of form, contains the expression “despite any other provision of this Plan”. The applicant submitted (subs 4) that, if those clauses nevertheless remain potentially inconsistent, cl 7.4 must be construed so as to resolve any inconsistency, to comply with cl 5(1) of the SI Order ([13] above).

56. Beyond the established principles of construction noted by the applicant ([54] above), the following principles were also said (subs 6) to be instructive if cls 2.8 and 7.4 were to be reconciled in the event of inconsistency:

6.1   The resolution of this dispute requires only that the word ‘inconsistency’ be given its ordinary and natural meaning without the gloss which has necessarily developed around the meaning of the word in a constitutional setting. Upon that basis, there will be an inconsistency if, in the provision of one environmental planning instrument, there is ‘want of consistency or congruity’, ‘lack of accordance or harmony’ or ‘incompatibility, contrariety, or opposition’ with another environmental planning instrument [see Coffs Harbour Environment Centre Inc v Minister for Planning (1994) 84 LGERA 324 at 331; Castle Constructions Pty Ltd v North Sydney Council (2007) 155 LGERA 52 at [41].

6.2   The search is for inconsistency in substance as distinct from mere form [see Castle Constructions v North Sydney Council (2007) 155 LGERA 52].

6.3   The intent should be to avoid inconsistency where possible by seeking to understand whether, in substance (rather than mere form) the clauses are capable of application independently of, or in conjunction with each other [see Castle Constructions v North Sydney Council (2007) 155 LGERA 52].

6.4   Deciding whether there is such inconsistency (contrariety or repugnancy) that the two cannot stand or live together (or cannot be reconciled) requires the construction of, and close attention to, the particular provisions in question [see Ferdinands v Commissioner for Public Employment (2006) 225 CLR 130 at [18]; Castle Constructions at [55]].

57. The applicant noted that cl 2.3(1)(d) of the LEP specifies for each zone the types of development that are prohibited.

58. As already noted, the subject site is within the E3 Environmental Management Zone, in which development for the purpose of a function centre is prohibited. However, cl 2.3 is expressly stated to be “subject to the other provisions of this Plan”.

59. The applicant submitted (subs 8) that, in order to resolve the “apparent conundrum” which may arise as a result of the use of the words “despite any other provision of this Plan” – which qualify both cls 2.8 and 7.4, and so avoid a “capricious or irrational result”, and “seek to give each provision a field of operation” (see Minister for Resources v Dover Fisheries Pty Ltd (1993) 43 FCR 565; 116 ALR 54, at 63, per Gummow J) – it is legitimate to consider whether upon their proper construction, both textually and contextually, each clause was intended to operate in respect of different subject matter.

60. There was agreement between the second respondent and the applicant that cl 2.8 should be understood as an “enabling” clause, intended as a separate source of power to govern and conditionally permit a particular type of development on all land, notwithstanding the particular zoning. This was contended by the applicant (subs 9) to include land the permanent use of which is prohibited either by the land use table or cl 7.4, and as such operates to expand the range of permissible uses if carried out for “a temporary use”.

61. The second respondent also contended (subs 16) that the enabling function of cl 2.8 was evident on a clear reading of the text, and because of the contextual placement of the provision near the land use table in the LEP. Further, cl 2.8 could be seen as pursuing aim 2(a) in cl 1.2 of the LEP, which acknowledges, as one of the aims of the instrument, encouragement of sustainable economic growth and development within the Murray.

62. By contrast, cl 7.4 was submitted by the second respondent (subs 17) to have a “controlling” function, such as to control all potential forms of development, in order to protect particular land (notably, the river front) from inappropriate development. The applicant submitted (subs 10) that the purpose of cl 7.4 is to govern the permanent use of land, by confining or narrowing the range of permissible land uses in the land use table in a variety of zones, including the E3 zone, where the land in question is also within a “river-front area”.

63. The second respondent contended (subs 17) that cl 7.4 furthers aims 2(c) and (g), contained in cl 1.2 of the LEP, which respectively identify particular aims of the LEP as “to identify, protect, conserve and enhance Murray’s natural assets”, and “to provide for future tourist and visitor accommodation in a sustainable manner that is compatible with, and will not compromise, the natural resource and heritage values of the surrounding area”.

64. The fact that the key provisions have, respectively, enabling, and controlling, functions, was said by the second respondent (subs 18) to reflect the different purposes motivating the development controls, and, therefore, directing the assessment of any proposed activity, assisting an understanding of which control would have primacy when assessing the subject development.

65. On this basis, it was submitted (subs 19) that cl 7.4 should be preferred, as its controlling function would align with its focus upon environmental protection and conservation, aims which would not be achieved by having cl 2.8 allow for other forms of development on river front areas that have not been strategically considered to be appropriate.

66. Further bases submitted by the second respondent (subs 20) for the primacy of cl 7.4 included a number of established rules of statutory construction.

67. The second respondent submitted (subs 20(a)) that cl 7.4 (concerning particular land) is a more specific provision than cl 2.8 (which applies generally across the local government area). Various rules of statutory construction support specific provisions and procedures constraining or exempting general provisions or procedures. Clause 7.4 should have primacy when considered in conjunction with cl 2.8. Various authorities were cited in support of this argument, including Salemi v MacKellar (No 2) (1977) 137 CLR 396; Anthony Hordern and Sons Ltd v The Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 at 7; R v Wallis; Ex parte Employer’s Association of Wool Selling Brokers (1949) 78 CLR 529 at 550; Refrigerated Express Lines (A/Asia) Pty Ltd v Australian Meat & Live-stock Corp & Ors (1980) 29 ALR 333, at 347.

68. The second respondent also submitted (subs 20(c) that “if nothing else, the fact that cl 7.4 comes later in [the LEP] may be used as a guide to it being more specific and intending to prevail over anything coming before it”: Wood v Riley (1867) LR 3 CP 26.

69. In reply, the applicant submitted (subs 11) that the ascribing of such “separate fields of operation” accords with principle for a number of reasons:

11.1 The objectives of cl 7.4 are focused upon the protection of rivers and riverine processes. A range of permanent land uses are permitted. There is no textual indication in the body of the clause that “temporary use” cannot be tolerated or would be inconsistent with those objectives.

11.2 Clause 2.8, in contrast, aims to facilitate the temporary use of land pending it being put to permanent use provided such temporary use does not have detrimental economic, social, amenity or environmental effects on the land. Provided these objectives are met, there is no reason to conclude that the riverine environment would be compromised.

11.3 A comparison of the merit-based pre-conditions to the power to grant consent in cl 2.8(3) and cl 7.4(3) reveals that cl 7.4 imposes a less onerous threshold than cl 2.8. Clauses 7.4(3)(a), (b), (c) use the words ‘compatibility’; ‘not likely to cause environmental harm … including adverse effect’; ‘likely to cause only minimal visual disturbance’. By comparison, cl 2.8(3)(b) and (c) require the consent authority to be satisfied that the temporary use ‘will not adversely impact’. This use of language supports a conclusion that it is not necessary to construe cl 7.4 as intending to oust cl 2.8 by preventing temporary use of ‘river-front area’ because the qualifying criteria in cl 2.8 are more restrictive than cl 7.4, with the result that satisfying the merit-based constraints in cl 2.8 would, a fortiori, satisfy the lesser constraints in cl 7.4.

11.4 Adopting the Second Respondent’s submission at [17] that cl 7.4 is intended to control all potential forms of development (temporary or permanent) in order to protect river-front land across a range of zones would give no work for cl 2.8 to do in that ‘sub zone’. The provision would ‘have virtually no practical effect’. This outcome is to be avoided where possible and is not necessary to achieve the protection which cl 7.4 intends to bestow upon the land. The Applicant’s approach however, in preserving the operation of cl 2.8, permit cl 7.4 to operate as a constraint on the permanent use to which river-front land could otherwise be put pursuant to the land use table. It enables the two provisions to be capable of application in conjunction with each other.

11.5   Most importantly, the Applicant’s approach is to be preferred because it overcomes what would otherwise constitute an impermissible breach of cl 5 of the [SI Order] under which the [LEP] was made, thereby observing the principle of construction that an instrument should not be interpreted so as to exceed the power conferred by the instrument under which it is made.

It is to be noted that s 33A(1) of the EPA Act provides:

33A Standardisation of Environmental Planning Instruments

(1) The Governor may, by order published on the NSW legislation website, prescribe the standard form and content of local environmental plans or other environmental planning instruments (a standard instrument).

The stated purpose of the Order is contained in cl 2:

2 Purpose of Order

This order prescribes the form and content of a principle local environmental plan for an area for the purposes of s 33A of the Environmental Planning & Assessment Act 1979.

The first aim of [the LEP] is as follows:

1.2 Aims of Plan

(1) This Plan aims to make local environmental planning provisions for land in Murray in accordance with the relevant standard environmental planning instrument under s 33A of the Act.

Clause 7.4 of [the LEP] is an ‘additional provision’ within the meaning of cl 5 of the Order. Clause 5(1) of the [SI] Order is as follows:

5 Additional Provisions

(1) Additional provisions may be included in the Plan, but only if they are not inconsistent with the mandatory provisions of the standard instrument and comply with any relevant directions in that instrument (emphasis added [in the subs]).

Clause 2.8 of [the LEP] is deemed by cl 4(1)(b) of the Order to be a ‘mandatory provision’ because it is an ‘optional provision’ in the standard instrument which was contained in [the LEP] when it was made.

4 Mandatory Provisions of the Standard Instrument

(1) The mandatory provisions of the standard instrument prescribed by this Order are as follows:

(a) Provisions identified in the standard instrument as compulsory provisions …

(b) Provisions identified in the standard instrument as optional provisions if a decision is made to adopt the provisions when the plan is made (emphasis added [in the subs]).

Clause 5 of the [SI] Order mandates that additional provisions must not be inconsistent with the mandatory provisions of the standard instrument. In such circumstances it cannot have been the intention of the draftsperson to include additional provision cl 7.4 in breach of cl 5 of the Order and the need to avoid such an impermissible outcome obliges an interpretation of cl 7.4 such as is submitted by the Applicant. This is the only way to avoid inconsistency with cl 2.8, which is a deemed mandatory provision.

70. I generally prefer the reply submissions of the applicant (subs 12) in relation to these arguments. The ordering of clauses does not indicate an intention to confer primacy on cl 7.4 – it follows the Standard Instrument.

71. Clause 7.4 is more specific than cl 2.8, and operates with respect to land within a wide range of zones. It does no more than create a “sub zone”, limiting the development that may be carried out within that zone. It should be characterised as a zoning provision similar to the land use table, which is subject to cl 2.8 (subs 13).

72. This conclusion on my part is consistent with Moore AJ’s excellent analysis in Marshall ([16] above).

73. Nonetheless, there is merit in the second respondent’s submissions, which I should further consider:

74. In Mount Isa Mines Limited v FCT (“Mount Isa”) (1976) 10 ALR 629, McInerney J noted at [639] that:

“such an argument is one of last resort. ‘The first duty of the court must be, if the result is fairly possible, to give effect to the whole expression of the parliamentary intention’, ... and ‘to determine which is the leading provision and which the subordinate provision, and which must give way to the other’ — see Institute of Patent Agents v Lockwood [1894] AC 347 at 360.”

See also Lyons, Neville William & Anor v Registrar of Trademarks & Anor (“Lyons”) (1983) 50 ALR 496; [1983] FCA 252, at 508.

75. Council argues there is no inconsistency between the two clauses in the present case, and I do not believe a “last resort” construction is called for. Both clauses were included in the LEP, in their current form, from the date of its commencement on 16 December 2011.

76. Council argues that cl 5(1) of the SI Order ([13] above) must mean that they are not inconsistent, and they must be carefully construed with regard to their context(s) and purposes: Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379, at [37] – [46], and [63]; Interpretation Act 1987 (s 33). See also Castle ConstructionPty Ltd v North Sydney Council (2007) 155 LGERA 52; [2007] NSWCA 164; and Ferdinands v Commissioner for Public Employment (2006) 225 CLR 130; [2006] HCA 5.

77. In Matic v Mid-Western Regional Council (“Matic”) [2008] NSWLEC 113 (at [7]), Jagot J noted that context has a wide scope, and may include the “mischief which… one may discern the statute was intended to remedy”, in order that, by this method, an alternative construction to the literal meaning may be preferred if it is “reasonably open and more closely conforms to the legislative intent”, which is:

not to be discerned by reference to pre-conceived ideas or vague notions of what might or might not be desirable. Intent is to be objectively determined. It is manifested “by the use of language” in the document to be construed ...

78. Council acknowledges (subs 16 and 19) that, read literally, cls 2.8 and 7.4 result in a circular outcome as the two provisions are respectively prescribed to operate “despite any other provision”. “Such an outcome could not have reasonably been the legislative intent of the clauses, as it would ascribe no meaning or purpose to either provision”, but “in this instance, both the clauses can be given meaning and effect”. Clause 2.8 is intended (Council subs 20) to operate as a permissive clause, to enable use of any land on a temporary basis, so long as the consent authority reaches a state of satisfaction of the merit matters set out in cl 2.8(3), while cl 7.4, on the contrary (subs 21), is a local provision, which seeks to regulate permanent development in the E3 and RU1 zones within 100 metres of the top of the bank of the Murray River.

79. Council continues (subs 25 and 26):

25. ... The objectives of clause 7.4 clearly seek to restrict development to retain and enhance the environmental qualities of river front land. Clause 2.8 is not inconsistent with that objective as consent may not be granted unless the consent authority is satisfied 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.

26. Clause 2.8 adopts a conservative approach to environmental impacts and can therefore be comfortably read to expand the uses permitted by clause 7.4, on a temporary basis, if the high bar of environmental impacts may be managed under the temporary use.

80. Council argues (subs 27) that the Court should take a purposive approach, and construe the LEP such that “clause 7.4 has a different purpose to clause 2.8, and that they may be read in ‘harmony’, ... consistent with s 32 of the Interpretation Act 1987, and the requirement of clause 5(1) of the [SI] Order”.

81. I accept the submissions of the applicant and Council that cls 2.8 and 7.4 are not inconsistent. A temporary use may occur on land where such a use may otherwise be prohibited in accordance with the terms of cl 7.4, provided it meets the requirements set out in cl 2.8(3) of the LEP.

Contention 2 – Can a consent for a three year period be properly characterised as a “temporary use” for the purposes of cl 2.8 of the LEP?

82. The second respondent maintained that consent could not be granted to the subject application on the basis that the continuous and regular use of land for a function centre over a period of 3 years cannot be properly characterised as a “temporary use”, for the purposes of cl 2.8 of the LEP.

83. Concern was also expressed about whether or not activities ancillary to the events that characterise the temporary use, should be included within the maximum period of 52 days, stipulated in the various versions of condition 8 ([40] – [44] above).

84. Such ancillary activities may include, but are not limited to: construction and deconstruction of the marquee structure (Exhibit C4); inspections; bookings; and deliveries. As Mr McEwen said (Tp41, LL13 – 23):

... you can't simply achieve on the day of the event every single proprietary requirement - the setting of tables, perhaps the bringing in of food, other things which would ordinarily accompany the use of and physically could not be achieved on the day.

It would defy credibility that a large structure, such as is here approved - or proposed, I should say - and the setting up of tables and the getting ready for everything else could be achieved on the day of the event, particularly if the event was scheduled for the morning or for the early afternoon because of the size of the structure and, as your Honour would understand, the fact that it has to be pulled down.

(See also Exhibit A3, especially items 1 and 7.)

85. This latter debate led Council to update its preferred wording for condition 8 (see Tp8, LL36 – 39).

86. The proposed development, it was agreed between the applicant and the second respondent, must answer to the description of a “temporary use” before any merit assessment can be undertaken under cl 2.8(3) (applicant’s subs 15; second respondent’s subs 22).

87. However, the second respondent submitted that the answer depends upon principles that relate to characterisation of purpose (subs 22 – 23), while the applicant submitted (subs 16) that “the only relevant enquiry could be: is the proposed development a “temporary use” within the meaning of cl 2.8?” The term “temporary use” is not a defined term, but takes its “colour from its surroundings” (applicant’s subs 16), namely the actual terms of cl 2.8 (see [15] above).

88. The applicant submitted (subs 16) that the objective of cl 2.8 is to allow for the (intermittent) use of land for a period of time, pending its future development for permissible purposes identified in the Land Use Table. Such “temporary use” may be for up to 52 days (whether or not consecutive days) in any period of 12 months. The applicant’s submission is that the prescription of a number of occasions in an identified time period means, in effect, that a use which is subject to numerical criteria, is, by definition, to be regarded as a temporary use.

89. The second respondent argues (subs 23 – 24) that the use must be characterised by reference to the transactions, activities and processes intended to be undertaken on the site, and that such transactions, activities and processes cannot be limited to the proposed “events”. The second respondent was particularly concerned with the lack of detail provided in the DA, regarding the preparation for, and the closing down of, the “events”. Substantial activity might have to be undertaken outside the time taken by the actual “events”, in terms of supplies, seating, parking, decorations etc, and associated preparation and cleaning.

90. The applicant submitted (subs 17 – 18) that the items in cl 2.8(3) contemplate that structures will be erected and will remain upon the land throughout the temporary use period. Such structures are likely to be purpose built and their presence on the land for the whole period of the consent does not disqualify them from being properly regarded as development for a temporary use. Ultimately, “even though the construction of a building constitutes the use of land for that approved purpose” – see Meriton Apartments Pty Ltd v Parramatta City Council [2003] NSWLEC 309 – “it could not be reasonably suggested, in the context of clause 2.8, that, in circumstances where a building took more than 52 days to erect, it could not thereafter then be used for the approved purpose in the relevant 12 month period”. As cl 2.8 is directed to occasional use of land or buildings, the term “temporary use” should be defined accordingly.

91. The term “function centre”, is defined in LEP ([23] above) with a focus upon individual events and not activities which will facilitate the individual event. Hence, the applicant submitted (par 19) that it is “entirely reasonable to conclude that the maximum period of days during which the temporary use may be undertaken pursuant to a temporary use consent is intended to refer to the event itself rather than the set up time. ... “, even though set up would be used for the function centre purpose.

92. The applicant proposes to hold up to 52 events in any 12 month period, and submitted (subs 20) that the term “temporary use”, as employed in cl 2.8, “would contemplate use of the structures on the land for 52 events and would not take account of preparation time, even if carried out on days separate to the event itself”.

93. However, Mr Seymour submitted for the second respondent (Tp28, LL20 – 27):

... matters of economic pragmatism are not relevant in a 79C assessment. A person can’t come along and say, well, don’t impose that condition on me because it would be very expensive and I’m not sure if I will be able to promote my use, it’s not a relevant consideration, the Court has held that many times, so the fact that you have to put up this structure and take it down each time, might be very expensive, is irrelevant. If that’s the proper planning outcome, that’s the proper planning outcome.

94. Notably, in his oral submissions, Mr McEwen SC submitted for the applicant (Tp13, LL11 – 22 – emphasis added):

So your Honour, in summary by way of opening on the facts, we say that the merit issue is limited to the manner in which one carries out the temporary use. I'll be submitting to your Honour in due course that when one looks at cl 2.8 and it speaks of temporary use, it is defining a temporary use as that which takes place for a certain number of days per year in any particular period. It's not a reference to the fact that nothing can be on the land in the meantime because the clause itself - cl 2.8 - contemplates as Ms Reid took you to, that at the end of the period of the consent, you remove what's on the land and you, so far as is practical, return the land to its previous form. We say that's a very strong indicator that it was not the intention of cl 2.8 or the legislature to require you to pack up your bundle and leave the site in between events.

95. In his written submissions for the second respondent, Mr Seymour had submitted (subs 25 – 26):

25.   Nothing in the materials provided demonstrate how the “function centre” that is proposed will be a “temporary use”, rather than the prohibited use of this land for a “function centre”, just by giving it a termination date. Further, a termination date of three years away does not confirm or reinforce that the use is temporary. The Proposed Development must answer to that description before any assessment is undertaken under clause 2.8(3) and so reference to those paragraphs cannot assist the task of characterization.

26.   It is submitted that the Proposed Development cannot properly be characterized as a “temporary use”. If that submission is not accepted, it is nevertheless submitted that to render a land use properly descriptive as “temporary” a more limited time period than 3 years is necessary.

96. In his oral submissions, Mr Seymour said (Tp15, LL4 – 10):

On behalf of my client we do consider that it's appropriate that the condition first of all maintain the status quo, it would be limited to the 12 months, not three years. So that's the first major point of departure when it comes to the condition. Secondly, that there should be a requirement to pull up and pull down the materials and that the time taken to do any of that is part of the 52 days. So those are the three points of difference now between my client and the other two parties.

97. Later, he said (Tp21, LL9 – 18) that, in order for the function centre to constitute a “temporary use”, one must be able to objectively see, without doubt, that it is a temporary use, and that not just anything can constitute a temporary use:

The first is you must be able to objectively point to this and say no doubt about it, this is a temporary use and that you've got to do more than simply say well I can do anything and as long as it's limited to 52, that'll make it a temporary use. There's something more to it than that. Can you have a nuclear power plant that's only there for 52 days and it be a temporary use? Can you have literally anything there, as long as it's only there for 52 days or longer but just used sporadically? There has to be something inherently, essentially involved in this use that makes it temporary and so it's not good enough just to take any old label and then say well we'll accept a condition that limits us to particular days.

98. In respect of the proposed development, Mr Seymour submitted (Tp24, L46 –p25, L14):

It’s not enough for the proponent to come along and say, well, we only intend to operate for three years, and we only intend to do it every now and then, on the weekends.

Their motive is irrelevant. The way those are manifest in the operations are important, the way those motives might be manifest in the operations might be relevant, but, for example, where we don’t have a plan of management, and what we do have are a statement of relatively vague intention in exhibit A3, query whether that assists your Honour at all, but your Honour doesn’t have a plan of management, your Honour doesn’t have a way of understanding the modus operandi, so what we have in the application materials in front of us are a structure that’s pretty much intended to be there for three years and used occasionally to hold these events, but will nevertheless pretty much always be there.

People can come and look at that at any time, and people can come and have their events at any time, and the intention may well be that the event is a one off thing, but nevertheless this has every look and feel of being a permanent use, notwithstanding that it’s only carried out for three years.

99. The Council submitted (subs 34) that limiting the “function” use to no more than 52 days in any 12 month period, and the operation of the consent to a period of 3 years, means that the use is properly characterised as “temporary”, and consistent with the power prescribed by cl 2.8(2) of the LEP. The characterisation exercise that the second respondent asks the Court to undertake is unnecessary, as the use constitutes one that is “temporary” by nature of its time limitation(s). I agree with that submission.

100. Again, in respect of the second contention, I prefer the approach taken by the applicant. The definition of “function centre” in the LEP anticipates the use of land for the purpose of events, rather than any preparatory or subsequent work associated with such events. 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 in a 12 month period.

101. Nor has any sound basis been put to the Court for the consent to be limited to only 1 year. As already noted ([14] above), the function centre is oriented towards events, such as weddings, which often need to be planned and booked well in advance of 12 months beforehand (Tp52).

Conclusion

102. The applicant should succeed on the two grounds of challenge raised by the second respondent.

103. Development consent should be granted, pursuant to cl 2.8, on a three-year basis, subject to appropriate conditions, which were largely agreed during the hearing.

104. In that context, the events management and emergency action plans before the Court (Exhibit A5) can and should be incorporated into a comprehensive “plan of management” for the use, in the final conditions of consent, to cover matters such as traffic management, temporary structures, complaints handling, staff responsibility, and the keeping and inspection of a register of events (see Tpp44 – 47, and Exhibit P1).

105. The second respondent’s version of condition 8 was not acceptable to the applicant or the Council, who agreed upon the version finally proposed by the Council (Tp46, LL6 – 17). The Court is satisfied with that outcome.

Orders

106. The parties are ordered to agree upon, and submit to my chambers within seven days, short minutes of order upholding the appeal, and granting consent in appropriate terms, and upon conditions to be developed from Exhibit C3, to reflect these reasons.

107. All exhibits will be returned when the final orders are made in chambers.

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Decision last updated: 11 November 2016