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

Land and Environment Court

of New South Wales

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

PARTIES:
APPLICANT
Nelson Silva
RESPONDENT
Ku-ring-gai Council

FILE NUMBER(S): 10805 of 2008

CORAM: Taylor C

KEY ISSUES: DEVELOPMENT APPLICATION :- to pipe an existing open channel watercourse; definition of rivers; application of Water Management Act to tributaries of larger rivers

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Rivers and Foreshores Improvement Act 1948
Water Managment Act 2000
Local Government (General) Regulation 2005
Ku-ring-gai Council’s Development Control Plan 38 and 47
State Environmental Planning Policy (Sydney Region Growth Centres)
Ku-ring-gai Planning Ordinace Scheme
Ku-ring-gai Council Riparian Policy 2004

CASES CITED: Narrambulla Action Group Inc v Mulwaree Council 41068 of 1995 [1996] NSWLEC 199
Gartner v Kidman [1962] HCA 27; (1962) 108 CLR 12
Knezovic v Shire of Swan-Guildford [1968] HCA 38; (1968) 118 CLR 468 (21 June 1968)
Warringah Council v Ardel Limited and Anor [2000] NSWLEC 7
Ross G Mitchell v John Baptist Vella and Mary Magdalan Vella [1998] NSWLEC 250
Don Burke and [16] others v Hawkesbury City Council & Ors [2001] NSWLEC 222
BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399

TEXTS CITED: Gore, D. and Taylor, M.P. 2003, Australian Journal of Earth Sciences, 50, 467-470.
Taylor and Stokes (2005a) in the Environment Planning and Law Journal, 22, 193-211; and
Taylor and Stokes 2005b in the Australian Geographer, 36 (2), 183-200
Thoms and Sheldon, 2000, in Regulated Rivers: Research and Management, 16, 375–383.
Williams et al. (1998) in Wetlands (Australia), 18(1), 25-48),

DATES OF HEARING: 21 October 2008, 1 December 2008 and 28 January 2009

DATE OF JUDGMENT:
6 March 2009

LEGAL REPRESENTATIVES:
APPLICANT
Mr C. Gough, solicitor
of Storey and Gough Lawyers
RESPONDENT
Dr J. Smith, solicitor
of Deacons

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Taylor C

6 March 2009
10805 of 2008 Nelson Silva v Ku-ring-gai Council

Judgment

1 This appeal arose following the refusal by Ku-ring-gai of a development application (DA0415/08) by Mr Nelson Silva to pipe an existing open channel watercourse at 27 Miowera Road, North Turramurra.

2 The matter before the Court on January 28th commenced initially as an on-site s 34 conciliation conference. The parties could not come to agreement at the initial on-site conciliation on 21st October 2008, so the conference was terminated. The parties agreed to the matter proceeding to adjudication by the Court under s 34 (4)(b) of the Land and Environment Court Act 1979. This judgment is under s 34 (5) of the Act. The parties agreed that I could have regard to the evidence and submissions from the s 34 conciliation conference phase of the proceedings.

The Proposal and site

3 The subject site is located on the eastern corner of Miowera Road between Normurra Avenue and Somerset Avenue in Turramurra. The site contains a dwelling house on land that slopes from the north-west corner (RL 143.85) to the south-east corner (RL…

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.

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Details

Case: [2009] NSWLEC 1060
Decision Date: 6 March 2009

CaseChat Overview and Summary

Silva v Ku-ring-gai Council is an appeal against the refusal by Ku-ring-gai Council to approve a development application by Mr Nelson Silva to pipe an existing open channel watercourse at 27 Miowera Road, Turramurra. The primary issues for determination were: i) whether the watercourse at 27 Miowera Road was a natural watercourse or an artificially created channel, ii) if the watercourse was a natural feature, whether it constituted a river as defined in the Water Management Act 2000 (WMA), and iii) whether the application to insert a concrete pipe in the watercourse had merit with respect to the ecological and physical impacts as well as the planning and broader environmental objectives for the area. The Court held that the watercourse was a natural feature artificially modified and was a river under the WMA. The watercourse had the appearance and functionality (physically and biologically) of a natural watercourse, artificially modified. The application was contrary to the Objects and Principles of the WMA and the Council’s DCP 47 and DCP 38. The application was also inconsistent with the Council’s Riparian Policy. The proposal was contrary to the principles of ecological sustainable development and good management practice to protect, restore, maintain and mitigate any further negative impacts on watercourses and their riparian habitats. The Court held that the application for piping the watercourse is refused. The orders of the Court were: i) the appeal is dismissed, ii) Development Application DA0415/08 for consent to pipe the watercourse at 27 Miowera Road is determined by the refusal of development consent, and iii) the exhibits are to be returned.

Orders