Jaworski & Roberts v Murray Shire Council [2004] NSWLEC 391

Land and Environment Court of New South Wales

CITATION : Jaworski & Roberts v Murray Shire Council [2004] NSWLEC 391 APPLICANTS Richard & Helen Jaworski and Lyn Roberts PARTIES : RESPONDENT Murray Shire Council FILE NUMBER(S) : 10207 and 10687 of 2004 CORAM: Murrell C KEY ISSUES: Subdivision :- Modification to subdivision consent for variation to setback from river bank - Erection of rural dwelling - bulk and scale and impact on river Environmental Planning and Assessment Act LEGISLATION CITED: Murray River Environmental Plan Murray Shire Local Environmental Plan State Environmental Planning Policy No. 1 CASES CITED: Winton v North Sydney City Council DATES OF HEARING: 08-09/06/2004 EX TEMPORE 06/23/2004 JUDGMENT DATE :

APPLICANTS Mr J Webster, barrister SOLICITORS Francis Kelly & Grant

RESPONDENT LEGAL REPRESENTATIVES: Mrs J Kelly, barrister SOLICITORS Kell Moore

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Murrell C

23 June 2004

10207 of 2004 Jaworski & Roberts v Murray Shire Council 10687 of 2004 Roberts v Murray Shire Council

JUDGMENT 1 This is a verbal judgment for an appeal under s 96 and s 97 of the Environmental Planning and Assessment Act. By way of background the two day proceedings commenced on site on 8 June 2004, and then proceeded to the courthouse in Deniliquin. 2 The first appeal was against a refusal of the council to amend a s 96 application to modify a consent issued by the council relating to the subdivision of the land into three parcels. The subdivision consent also contained a condition for a setback from the 'high' bank of the Edward River, and in that regard the applicant is seeking an amendment to delete the word 'High'. 3 The second appeal arose during the proceedings, and it was agreed by the parties that it would be appropriate and efficient in the circumstances, to deal with the dwelling house application. The dwelling house had originally been refused by the council and an appeal had been made to the Court, however it was out of time. As such a new development application was lodged with the council, that was the same as the previous application refused by the council in January 2003. The proceedings in the s 96 application have been extended and the new appeal No. 10687 of 2004 is in respect of the erection of a dwelling house. In this regard the parties made submissions to the Court and his Honour Talbot J determined that, "For the short order of service, and for various requirements to be dispensed with, the wavering of the fee, and that further that the rules applicable to the filing and serving be dispensed with, and any further direction in that regard is delegated to Commissioner Murrell". 4 As I stated, it was agreed between the parties that it was efficient for the Court to deal with both appeals together. The appeal in respect of the s 96 application is 10207 of 2004. 5 The subject rural property is in a region that can be described as a rural low intensity area on the banks of the Edward River, a tributary of the Murray River. The Murray/Darling River system is recognised as a most important river system in Australia. 6 The issue for the council in these proceedings is whether the amendment to the original consent should be varied to delete the word 'High', and whether by deleting the word 'High' the objectives of the Murray River Regional Environmental Plan and the Local Environmental Plan would be achieved. In respect of the dwelling house it is considered by the council as to be inappropriate in terms of its bulk, scale, and size, which in the council's opinion is exacerbated by the setback. 7 The setback imposed in the consent of the subdivision is 60 m from the 'high' bank to the council seeks to have this maintained. The proposal is to delete the word 'high' which would have the effect of reducing the setback from the river from between 25 to 28 m. 8 The Local Environmental Plan states buildings must be 60 m from any bank of the river. I will go into the definitions of the banks and rivers and the bed shortly. 9 With respect to the three lot subdivision: Lot 11 includes the existing house of this was created with a 13 ha curtilage; Lot 12 was created as 93.5 ha as an agricultural lot, not allowing the erection of dwellings; and Lot 13 was created, the subject lot it has an area of 108 ha, and some 6.500 km of river and creek frontage. 10 The owners of the total parcel have lived on the land since approximately 1974, and have continuously, or nearly continuously occupied the land, and used it as an agricultural undertaking. 11 The issues in the proceedings concerning the s 96 application are: 1. Whether condition (e) of Development Application consent 94/01 should be modified to delete the word 'high'. 2. Whether the application to modify the consent complies with the objectives contained in clause 14 of Murray REP No. 2 about building setbacks. 3 Whether the building is dependent on a location adjacent to the River Murray? (It was agreed that the dwelling as such does not rely on a location adjacent to the river). 4. Whether the removal of the word 'High' as a condition of the consent would allow a development inconsistent with the planning principles for land degradation, landscape, and river related uses contained in part 2 of the Murray River Environmental Plan No. 2. 12 In terms of the Murray REP, No. 2. as amended from Murray River REP No. 1 there no longer a numeric setback required as contained in Murray REP No. 1. And Murray REP No. 1, gazetted in 1987, which stated: In relation to riparian land this consists of the bed of banks of a river, or is within 60 m of the banks of a river, and is within a non-urban zone. 13 In terms of the Murray REP No. 2, which is a later REP, 1994, it states that: The bank means a change of slope that defines the extent of the bed of the River Murray. And bed means the land which contains the River Murray, including that which is alternatively inundated or left bare from a rise or fall in the supply of water, but does not include any land inundated only in time of flood. 14 REP 2 also states that the setbacks in terms of cl 14(2): All buildings outside land zoned for urban purposes under an LEP should be set well back from the bank of the River Murray. The only exceptions are buildings dependent on a location adjacent to the River Murray. 15 The objectives of the building setback in REP 2: The objectives of siting buildings away from the River Murray are to maintain and improve water quality, minimise hazard risk, and the redistributive effect on flood water associated with the erection of buildings on the flood plain; protect the scenic landscape of the river and corridor; improve bank stability; and improve wildlife habitat. 16 The Murray LEP, on the other hand, of 1989, gazetted in 1990, contains the definition of bank to mean, "the limit of the bed of a river". And bed in relation to a river means "The whole of the soil of the channel in which the river flows, including that portion thereof which is alternatively covered and left bare as there may be an increase, or diminution, in the supply of what, and which is adequate to contain it at its average, or mean state, without reference to extraordinary pressures in the time of flood, or extreme droughts. 17 The relevant provisions also include development along rivers: That on land within zone 1(a) or 1(c) within 400 m of any bank of a river, a building, or any purpose, must seek the consent of the council. 18 Clause 32(b) states: On land within zone 1(a) or (c)" - which covers the subject land - and being within 60 m of any bank of the river.