KSK Developments Pty Limited v Murray Shire Council [2009] NSWLEC 43

KSK Developments Pty Limited v Murray Shire Council [2009] NSWLEC 43

The proper construction of 'bed' under the LEP includes the whole of the soil of the channel in which the river flows, as defined by its physical form, and the 'bank' is the upper limit of that channel. Therefore, the proposed development is within 60m of the bank, and consent for such development cannot be granted without a SEPP 1 objection and Ministerial concurrence unless the building is ancillary to certain uses.

Jurisdiction
Australia
Judgment Date
06 April 2009
Procedural Posture
Appeal / Determination of Preliminary Issue
Outcome
Preliminary issue determined in favour of the Council; Council's construction of 'bank' and 'bed' under the LEP adopted.
Legal Topics
['construction and Interpretation of Statutory Definitions' 'development Consent' 'distance From River Bank' 'statutory Interpretation' 'environmental Planning Instrument']
['planning Law' 'environmental Law'] ['construction and Interpretation of Statutory Definitions' 'development Consent' 'distance From River Bank' 'statutory Interpretation' 'environmental Planning Instrument']

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Procedural Posture

Appeal / Determination of Preliminary Issue

Legal Issues

  1. 1 ["Proper construction of 'bed' and 'bank' under Murray Local Environmental Plan 1989" 'Whether development is within 60m of the bank of the Murray River for the purposes of cl 30(2)' "Whether consent can be granted without an objection under SEPP 1 and Minister for Planning's concurrence"]

Ratio Decidendi

The proper construction of 'bed' under the LEP includes the whole of the soil of the channel in which the river flows, as defined by its physical form, and the 'bank' is the upper limit of that channel. Therefore, the proposed development is within 60m of the bank, and consent for such development cannot be granted without a SEPP 1 objection and Ministerial concurrence unless the building is ancillary to certain uses.

Court Disposition

Preliminary issue determined in favour of the Council; Council's construction of 'bank' and 'bed' under the LEP adopted.

Orders

  • ['The development sought by the Applicant involves, on land zoned 1(a), the construction of buildings within 60m of any bank of the Murray River and so consent cannot be granted under cl 30(2) of the Murray LEP without an SEPP 1 objection and the concurrence of the Minister for Planning.']