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Function centres in rural areas

NOTE:  The following information  does not apply to the use of land for the purpose of a private party or a private function that may be identified as a form of exempt development under State Environmental Planning Policy (Exempt and Complying Development Codes) 2008, which is available online at www.legislation.nsw.gov.au

Byron Shire Council is receiving a gradual increase in complaints in relation to commercial weddings and functions in rural areas.

What are the planning controls affecting commercial weddings and functions in rural areas?

Under the Byron Local Environmental Plan 2014 the use of land for commercial weddings and functions falls within the definition of a “Function Centre”.

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 (Byron Local Environmental Plan 2014).

Under the Byron Local Environmental Plan 2014 function centres are currently a prohibited use in the following rural zones:

  • Zone RU1 Primary Production
  • Zone RU2 Rural Landscape
  • Zone R5 Large Lot Residential

Despite this, it may be possible for Council to consider the temporary use of rural land for commercial weddings or functions under the provisions of clause 2.8 of the Byron Local Environmental Plan 2014. Under this clause, commercial weddings and functions in RU2, RU2 and R5 zones may be permitted with development consent for a maximum period of 14 days within a 12 month period.

Certain land in the Byron local government area remains zoned under Byron Local Environmental Plan 1988.

Land that is currently being used for commercial weddings and functions being land zoned under the Byron Local Environmental Plan 1988 may be the use of premises for the purpose of commercial premises. Under the Byron Local Environmental Plan 1988 commercial premises are defined as:

Commercial premises means a building or place used as an office or for other business or commercial purposes, but (in the table to clause 9) does not include a building or place used for a purpose elsewhere specifically defined in this Dictionary.

Under the Byron Local Environmental Plan 1988, commercial premises are currently prohibited development in the following rural zones.

  • Zone No 1 (a) (General Rural Zone)
  • Zone No 1 (b1) (Agricultural Protection (b1) Zone)
  • Zone No 1 (b2) (Agricultural Protection (b2) Zone)
  • Zone No 1 (c1) (Small Holdings Zone)
  • Zone No 1 (c2) (Small Holdings (c2) Zone)
  • Zone No 7 (d) (Scenic/Escarpment Zone)

If you are currently using land within a rural area for commercial weddings and functions, or propose to use your land for this purpose, it is suggested that you establish the zoning and planning constraints of your land by obtaining a Section 149 certificate under the Environmental Planning and Assessment Act 1979 from Council. The application form for a Section 149 certificate is available on Council’s website at www.byron.nsw.gov.au/forms.

Can I obtain development consent to use my rural land for commercial weddings and functions?

Use of land in the aforementioned rural zones for the purpose of a function centre or commercial premises is prohibited and therefore development consent cannot be granted for this use on a permanent basis.

You may however lodge a development application seeking development consent to temporarily use your land for commercial weddings and functions under clause 2.8 of the Byron Local Environmental Plan 2014, which states the following:

2.8 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 14 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).

If you propose to lodge a development application subject to clause 2.8 above, you must be able to satisfy Council of all of the matters detailed in clause 2.8(3) of Byron Local Environmental Plan 2014.

On 16 December 2015 the NSW Land and Environment Court in the case of Marshall Rural Pty Limited v Hawkesbury City Council found two development applications approved by the Council to be invalid. Both applications were for the temporary use of premises as a “function centre”.

The court found that the subclause of the relevant Local Environmental Plan requiring that (the temporary use is not to adversely impact on any adjoining land or the amenity of the neighbourhood) “is cast in absolute terms”. This case confirms that Byron Shire Council must be satisfied in accordance with clause 2.8 that the proposal will comply with each of the requirements of clause 2.8.

Prior to the lodgement of a development application to use your land for commercial weddings and functions on a temporary basis, it is recommended that you contact Council’s Development Support Officer dso@byron.nsw.gov.au or 02 6626 7025.

Will Council take enforcement action against me for conducting commercial weddings and functions whilst my development application is being assessed?

Council’s Draft Enforcement Policy was endorsed by the elected Council at its meeting on 25 August 2016 and will now go on public exhibition.

Clause 4.30 of the Draft Enforcement Policy states the following (italics):

Relief by way of lodgement of a development application

Where unauthorised development is detected and enforcement action is contemplated or has commenced Council may use its discretion to suspend enforcement action whilst a development application to correct the unauthorised development is lodged and determined. This discretion may extend to the unauthorised activity continuing during the course of the development assessment process.

Clause 4.30 of Council’s Draft Enforcement Policy is consistent with section 124 (3) of the Environmental Planning and Assessment Act 1979 which provides that where a breach of the Environmental Planning and Assessment Act would not have been committed but for the failure to obtain a consent under Part 4 of the Environmental Planning and Assessment, the Court, upon application being made by the defendant, may adjourn the proceedings to enable a development application to be made under Part 4 to obtain that consent.

Consistent with Council’s Draft Enforcement Policy and the Environmental Planning and Assessment Act, Council may use its discretion to not take or suspend enforcement action in relation to matters which are the subject of a development application until such time as a determination is made.

However, Council may also elect to exercise its discretion to take enforcement action. This is particularly so where the carrying out of the unauthorised activity causes undesirable impacts to others.

What is the long term planning view for commercial weddings and functions in rural areas?

The Byron Shire Rural Land Use Strategy was endorsed by the elected Council on 4 August 2016 and the strategy recommends the following action:

Investigate the potential for allowing ‘wedding venues’ (a type of function centre) in rural zones and where appropriate planning provisions to ensure their location, scale and operation are compatible with the rural setting. (page 55, table 12, item 14,)

The investigations as recommended are to be undertaken.