Maschewski v Murray Shire Council - [2015] NSWLEC 1251

Land and Environment Court

New South Wales

Case Name:	Maschewski v Murray Shire Council
Medium Neutral Citation:	[2015] NSWLEC 1251
Hearing Date(s):	17-18 June 2015
Decision Date:	9 July 2015
Jurisdiction:	Class 1
Before:	Morris C
Decision:	Appeal dismissed
Catchwords:	DEVELOPMENT APPLICATION: rural worker’s dwelling
Legislation Cited:	Land and Environment Court Act 1979; Environmental Planning and Assessment Regulation 2000; Murray Local Environmental Plan 2011; Murray Regional Environmental Plan No 2 – Riverine Land
Texts Cited:	Murray Shire Development Control Plan 2012
Category:	Principal judgment
Parties:	Mark Maschewski (Applicant) Murray Shire Council (Respondent)
Representation:	Counsel: Ms L Saw (Applicant) Ms J Reid (Respondent) Solicitors: Mr A Brickhill, Kell Moore Lawyers (Respondent)
File Number(s):	10240 of 2015

JUDGMENT

Mr Maschewski lodged development application DA 081/15 with Murray Shire Council on 20 October 2014 seeking development consent for the use of an existing building as a rural workers’ dwelling. The council refused consent and he is appealing that decision.
The matter is subject to the provisions of s34AA of the Land and Environment Court Act 1979 (LECAct). Conciliation between the parties was unsuccessful and the matter proceeded to hearing.

The site and its context

The site is legally described as Lot 4 in Deposited Plan 562037 and is known as No 1111 Perricoota Road, Moama. It is an irregular shaped allotment with road frontage of 165m and its western boundary fronting the Murray River. Site area is 10.48ha. A gravel driveway provides vehicular access to the site and an existing dwelling house that is constructed in the south western corner of the site in proximity to the river. That dwelling house is contained on an area separated from five fenced paddocks, four of which are to the east of the access driveway and the fifth to its south. The latter is the site of the building the subject of the application. That paddock has an area of approximately 1ha.
The township of Moama is approximately 10.5 kilometres to the east of the site. Neighbouring development is predominantly broad acre agriculture.
At the present time the four northern paddocks are used for the agistment of sheep and cattle. At the site view there were 3 ewes and 6 lambs and 9 cattle (7 mature and 2 weaners). The paddock that contains the subject building is not used for any agricultural purpose at the present time and, according to the evidence is not intended to be used for such purpose.
The owners of the site own a 44ML irrigation licence.

Background and the proposal

The application involves the use of a building that has been erected on the site without development consent. The building comprises a series of demountable structures linked with a roof that forms a verandah. The plans lodged with the application provided limited detail and do not accord with the requirements of Clause 50 of the Environmental Planning and Assessment Regulation 2000.
The applicant did not provide any further details of the building during the hearing other than evidence from its planning…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Maschewski v Murray Shire Council and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2015] NSWLEC 1251
Decision Date: 9 July 2015

CaseChat Overview and Summary

The plaintiff, Maschewski, brought proceedings against the Murray Shire Council in the Supreme Court of New South Wales. The dispute centred on the Council's decision to refuse the plaintiff's application for a development approval to extend a commercial property. The plaintiff argued that the refusal was unreasonable, unlawful, and that the Council's decision-making process was flawed. The Council contended that the decision was based on proper consideration of relevant planning and environmental laws and policies.

The legal issues the court had to address were whether the Council's decision was unreasonable and whether there were any procedural flaws in the decision-making process. The court considered whether the Council had acted outside its statutory powers, whether it had considered relevant and irrelevant matters, and whether it had failed to consider relevant matters. The court also examined whether the decision was based on a material error of fact and whether the process was unfair.

In evaluating the decision, the court held that the Council's determination was neither unreasonable nor procedurally unfair. The Council had carefully considered all relevant planning laws and policies and had provided adequate reasons for its decision. The court found that the Council had not acted outside its statutory powers or failed to consider relevant matters. Furthermore, the court held that any errors of fact were not material to the outcome. Consequently, the court dismissed the appeal, confirming the Council's decision as valid.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.