Baevski v Wingecarribee Shire Council [2009] NSWLEC 1014

Baevski v Wingecarribee Shire Council [2009] NSWLEC 1014

The proposed enclosure was properly categorised as a building relating to agriculture because the raising of elite horses for sale, including their training and care, fell within the flexible concept of agriculture and the enclosure was not a separate public or commercial use. However, consent had to be refused because the enclosure's height, scale, design, location near Myra Vale Road and reliance on long-term landscaping made it inconsistent with the scenic protection objectives of Zone 7(b) and with relevant rural development controls, causing unacceptable visual impacts on the scenic qualities of the area and adjoining properties.

Jurisdiction
Australia
Judgment Date
22 January 2009
Procedural Posture
Appeal Against Refusal of Development Application Lua08/0389 / Judgment
Outcome
Appeal dismissed; development application refused.
Legal Topics
['development Application' 'categorisation of Proposed Use' 'permissibility in Zone 7(b)(environmental Protection)(landscape Conservation)' 'buildings Relating to Agriculture' 'visual Impact' 'zone Objectives' 'rural Development Controls']
['planning and Environment Law' 'development Consent'] ['development Application' 'categorisation of Proposed Use' 'permissibility in Zone 7(b)(environmental Protection)(landscape Conservation)' 'buildings Relating to Agriculture' 'visual Impact' 'zone Objectives' 'rural Development Controls']

Case Brief

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Procedural Posture

Appeal Against Refusal of Development Application Lua08/0389 / Judgment

Legal Issues

  1. 1 ['Whether the proposed enclosure over the existing dressage arena was properly categorised as a building relating to agriculture and therefore permissible with consent under Wingecarribee Local Environmental Plan 1989.' 'Whether the proposed development was consistent with the objectives of Zone 7(b)(Environmental Protection)(Landscape Conservation).' 'Whether the visual impact, height, scale, siting and landscaping of the proposed enclosure justified refusal of development consent.']

Ratio Decidendi

The proposed enclosure was properly categorised as a building relating to agriculture because the raising of elite horses for sale, including their training and care, fell within the flexible concept of agriculture and the enclosure was not a separate public or commercial use. However, consent had to be refused because the enclosure's height, scale, design, location near Myra Vale Road and reliance on long-term landscaping made it inconsistent with the scenic protection objectives of Zone 7(b) and with relevant rural development controls, causing unacceptable visual impacts on the scenic qualities of the area and adjoining properties.

Court Disposition

Appeal dismissed; development application refused.

Orders

  • ['The appeal is dismissed.' 'Development Application LUA08/0389 for the construction of an enclosure over an existing dressage arena, a canopy over an existing tack shed and the construction of a new storage and machinery shed at Lot 6, Myra Vale Road, Wildes Meadow is refused.' 'The exhibits are returned.']