Webster v Muswellbrook Shire Council [2013] NSWLEC 1146

Land and Environment Court New South Wales

Medium Neutral Citation: Webster v Muswellbrook Shire Council [2013] NSWLEC 1146 Hearing dates: 7 August 2013 Decision date: 12 August 2013 Jurisdiction: Class 1 Before: Hussey C Decision: (1)The appeal is dismissed. (2)Development application No 162/2012 for the installation of a manufactured home to create a detached dual occupancy at 119 Sydney Street, Muswellbrook is refused. (3)The exhibits may be returned except A, 1, 7, 8 and 9. Catchwords: DEVELOPMENT APPLICATION - Detached dual occupancy, site located within floodplain, flooding risk, precedent, public interest Legislation Cited: Muswellbrook Shire Development Control Plan 2009 Muswellbrook Local Environmental Plan 2009 NSW Floodplain Development Manual 2005 Category: Principal judgment Parties: Mr Len Webster and Mrs Jennifer Webster (Applicants)

Muswellbrook Shire Council (Respondent) Representation: Ms M L Saw Direct access brief (Applicant) Mr A Seton Marsdens Law Group (Respondent) File Number(s): 10244 of 2013

Judgment

Background 1This appeal is against Council's refusal of a development application for the installation of a manufactured home at 119 Sydney Street, Muswellbrook to create a detached dual occupancy development. 2The subject land is relatively large with an area of 2,294 m2 and a depth of 140 m. The rear of the property extends to the Hunter River, which is liable to flooding. 3Consequently, the contentions identified for the appeal concern: * Flood risk to life and property, due to the land being located within/adjacent to the floodway * Precedent, in terms similar development opportunities being available for several nearby properties * Compatibility of the development * Public interest 4The appeal commenced by way of a s 34AA conference onsite. Initial discussions took place with the parties concerning procedural matters and the documents to be relied upon, including the over due joint engineering report. It was agreed that the site inspection proceed and the procedural matters be resolved on return to the Court. 5On return to the Court and following discussion of the contentions, there was no agreement and the s 34 conference was terminated and the appeal proceeded for determination.