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

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

The Court was satisfied that the proposed dwelling, although large and visible from the river and State Forest, would not be intrusive in its rural context and would satisfy the objectives of Murray REP No. 2, the Murray Shire LEP and the relevant SEPP 1 assessment. The proposal would not adversely impact water quality, bank stability, vegetation, wildlife habitat, soil erosion or scenic amenity to a degree warranting refusal. The modification deleting 'high' from the setback condition and the development consent for the dwelling were therefore approved.

Jurisdiction
Australia
Judgment Date
23 June 2004
Procedural Posture
Appeals Under S 96 and S 97 of the Environmental Planning and Assessment Act Concerning Modification of Subdivision Consent and Development Consent for a Rural Dwelling / Final Verbal Judgment After Hearing
Outcome
Appeals upheld; modification granted; SEPP 1 objections allowed; development consent granted subject to conditions.
Legal Topics
['modification of Subdivision Consent' 'setback From River Bank' 'state Environmental Planning Policy No. 1 Objection' 'rural Dwelling Bulk, Scale and Visual Impact' 'murray River Planning Controls' 'flood Liable Land']
['environmental Planning and Assessment' 'land Use Planning' 'development Consent' 'subdivision' 'riverine Environmental Protection'] ['modification of Subdivision Consent' 'setback From River Bank' 'state Environmental Planning Policy No. 1 Objection' 'rural Dwelling Bulk, Scale and Visual Impact' 'murray River Planning Controls' 'flood Liable Land']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Appeals Under S 96 and S 97 of the Environmental Planning and Assessment Act Concerning Modification of Subdivision Consent and Development Consent for a Rural Dwelling / Final Verbal Judgment After Hearing

Legal Issues

  1. 1 ["Whether condition (e) of Development Application consent 94/01 should be modified to delete the word 'high'." 'Whether the modification complied with the objectives contained in clause 14 of Murray REP No. 2 about building setbacks.' 'Whether the building was dependent on a location adjacent to the River Murray.' "Whether removal of the word 'High' would allow development inconsistent with planning principles for land degradation, landscape and river-related uses in Murray River Environmental Plan No. 2." 'Whether the dwelling house was inappropriate by reason of bulk, scale, size, setback and visual impact.' 'Whether objections under State Environmental Planning Policy No. 1 should be allowed for the 60 m setback and minimum allotment size standards.']

Ratio Decidendi

The Court was satisfied that the proposed dwelling, although large and visible from the river and State Forest, would not be intrusive in its rural context and would satisfy the objectives of Murray REP No. 2, the Murray Shire LEP and the relevant SEPP 1 assessment. The proposal would not adversely impact water quality, bank stability, vegetation, wildlife habitat, soil erosion or scenic amenity to a degree warranting refusal. The modification deleting 'high' from the setback condition and the development consent for the dwelling were therefore approved.

Court Disposition

Appeals upheld; modification granted; SEPP 1 objections allowed; development consent granted subject to conditions.

Orders

  • ["Appeal No 10207 of 2004 under s 96 of the Environmental Planning and Assessment Act to modify the consent for a three lot subdivision issued by the Murray Shire Council on 19 June 2001 is upheld and the word 'high' appearing before bank in condition (e) is deleted such that any dwelling erected on Lot 13 must be...