Knox v Wingecarribee Council [1998] NSWLEC 93

Knox v Wingecarribee Council [1998] NSWLEC 93

The earth mound was development and had several separate purposes, including use as a windbreak, a visual screen providing privacy, and stormwater channelling. Because at least one separate non-agricultural purpose required consent, development consent was required in both the 5(c) and 7(b) zones despite existing agricultural use or agriculture being permissible without consent. Consent should not be granted because the mound adversely affected visual quality, scenic and tourism values, and traffic safety, and was antipathetic to the objectives of the Wingecarribee Local Environmental Plan 1989 and zone 7(b). The public interest in enforcing planning controls justified declarations and...

Jurisdiction
Australia
Judgment Date
03 March 1998
Procedural Posture
Class 1 Appeal Against Deemed Refusal of a Development Application and Class 4 Proceedings Seeking Declarations and Consequential Relief for Development Allegedly Carried Out Without Consent / Final Judgment After Both Proceedings Were Heard Together
Outcome
Class 1 appeal dismissed; declarations made that the earth mound was unlawful without development consent and that no consent had been granted; removal ordered in the Class 4 proceedings.
Legal Topics
['development Consent' 'existing Use' 'agriculture' 'landscape Conservation' 'visual Impact' 'traffic Safety' 'enforcement Orders']
['planning and Environment Law' 'development Control'] ['development Consent' 'existing Use' 'agriculture' 'landscape Conservation' 'visual Impact' 'traffic Safety' 'enforcement Orders']

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Procedural Posture

Class 1 Appeal Against Deemed Refusal of a Development Application and Class 4 Proceedings Seeking Declarations and Consequential Relief for Development Allegedly Carried Out Without Consent / Final Judgment After Both Proceedings Were Heard Together

Legal Issues

  1. 1 ['Whether construction of the earth mound required development consent under the Environmental Planning and Assessment Act 1979 and Wingecarribee Local Environmental Plan 1989.' 'Whether the mound was for the purpose of agriculture or also had separate purposes requiring development consent.' 'Whether development consent should be granted having regard to visual impact, scenic and tourism values, and traffic safety.' 'Whether the Court should exercise its discretion under s 124 of the Environmental Planning and Assessment Act 1979 to grant or withhold enforcement relief.']

Ratio Decidendi

The earth mound was development and had several separate purposes, including use as a windbreak, a visual screen providing privacy, and stormwater channelling. Because at least one separate non-agricultural purpose required consent, development consent was required in both the 5(c) and 7(b) zones despite existing agricultural use or agriculture being permissible without consent. Consent should not be granted because the mound adversely affected visual quality, scenic and tourism values, and traffic safety, and was antipathetic to the objectives of the Wingecarribee Local Environmental Plan 1989 and zone 7(b). The public interest in enforcing planning controls justified declarations and...

Court Disposition

Class 1 appeal dismissed; declarations made that the earth mound was unlawful without development consent and that no consent had been granted; removal ordered in the Class 4 proceedings.

Orders

  • ['In Matter No 10316/97: Appeal dismissed.' 'In Matter No 40128/97: Declare that the provision of an earth mound on Lot 3 of DP 860819 along its frontage to Range Road, Glenquarry is unlawful in the absence of development consent therefor.' 'In Matter No 40128/97: Declare that no development consent has been granted...