Silva v Ku-ring-gai Council [2009] NSWLEC 1060

Silva v Ku-ring-gai Council [2009] NSWLEC 1060

On the balance of the evidence, including site observations, aerial photographs, topography, hydrological modelling, bed and bank features, erosion features, flow, sediment processes, aquatic fauna and prior riparian vegetation, the watercourse at 27 Miowera Road was a natural feature artificially modified and a river under the Water Management Act 2000. The development application therefore required treatment as integrated development and involved a controlled activity, lacked support from the Department of Water and Energy, and in any event was inconsistent with ecologically sustainable development, the objects and principles of the Water Management Act 2000, DCP 38, DCP 47 and Council...

Jurisdiction
Australia
Judgment Date
06 March 2009
Procedural Posture
Appeal Following Refusal of Development Application Da0415/08 to Pipe an Existing Open Channel Watercourse / Section 34 Conciliation Conference Terminated; Parties Agreed to Adjudication Under S 34(4)(b) of the Land and Environment Court Act 1979; Judgment Under S 34(5)
Outcome
Appeal dismissed; development consent refused
Legal Topics
['development Application to Pipe Watercourse' 'definition of River Under the Water Management Act 2000' 'integrated Development' 'controlled Activity' 'ecologically Sustainable Development' 'riparian Protection']
['planning and Environment Law' 'water Management' 'development Consent'] ['development Application to Pipe Watercourse' 'definition of River Under the Water Management Act 2000' 'integrated Development' 'controlled Activity' 'ecologically Sustainable Development' 'riparian Protection']

Case Brief

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Procedural Posture

Appeal Following Refusal of Development Application Da0415/08 to Pipe an Existing Open Channel Watercourse / Section 34 Conciliation Conference Terminated; Parties Agreed to Adjudication Under S 34(4)(b) of the Land and Environment Court Act 1979; Judgment Under S 34(5)

Legal Issues

  1. 1 ['Whether the watercourse at 27 Miowera Road proposed to be piped was a natural watercourse or an artificially created channel' 'Whether, if natural, the watercourse constituted a river under the Water Management Act 2000' 'Whether the proposal to insert a concrete pipe in the watercourse had merit having regard to ecological and physical impacts and the planning and broader environmental objectives for the area']

Ratio Decidendi

On the balance of the evidence, including site observations, aerial photographs, topography, hydrological modelling, bed and bank features, erosion features, flow, sediment processes, aquatic fauna and prior riparian vegetation, the watercourse at 27 Miowera Road was a natural feature artificially modified and a river under the Water Management Act 2000. The development application therefore required treatment as integrated development and involved a controlled activity, lacked support from the Department of Water and Energy, and in any event was inconsistent with ecologically sustainable development, the objects and principles of the Water Management Act 2000, DCP 38, DCP 47 and Council...

Court Disposition

Appeal dismissed; development consent refused

Orders

  • ['The appeal is dismissed' 'Development Application DA0415/08 for consent to pipe the watercourse at 27 Miowera Road is determined by the refusal of development consent' 'The exhibits are to be returned']