Bailey v Oberon Shire Council

Land and Environment Court

of New South Wales

CITATION:	Bailey v Oberon Shire Council [2006] NSWLEC 815
PARTIES:	APPLICANT Daniel Bailey RESPONDENT Oberon Shire Council
FILE NUMBER(S):	10630 of 2006
CORAM:	Moore C
KEY ISSUES:	Development Application - Subdivision :- Compliance with EPA licences Noise Dust
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Protection of the Environment Operations Act 1997 Oberon Local Environmental Plan 1998 Oberon Development Control Plan 2001
CASES CITED:	Kentucky Fried Chicken v Gantidis (1979) 140 CLR 675; Zhang v Canterbury City Council (2001) 115 LGERA 337 ; Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472; Terrace Tower Holdings Pty v Sutherland Shire Council (2003) 129 LEGRA 195
DATES OF HEARING:	13 and 14 December 2006
EX TEMPORE JUDGMENT DATE:	12/14/2006
LEGAL REPRESENTATIVES:	APPLICANT Mr C McEwen SC INSTRUCTED BY Staunton Beattie RESPONDENT Mr M Baird, barrister INSTRUCTED BY McIntosh McPhillamy & Co

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C

14 December 2006

06/10630 Daniel Bailey v Oberon Shire Council

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

The consequence of the Court’s decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court’s Orders and the conditions may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court’s web site at

JUDGMENT

1 COMMISSIONER: This is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal on 9 May 2006 by Oberon Council (the council) of Development Application 170/06.

2 The application is to subdivide an allotment which has an existing single residence on it which allotment is located at 12 Parkes Street, Oberon (the site). The site’s Real Property Act descriptors are Lot 3 Deposited Plan 1078889.

3 It is proposed that the existing single allotment will be divided so that it will create a large allotment upon which the present dwelling will remain; three individual residential allotments to the west of that (each of which will be a little in excess of 3,300 sq m); and, at the western end of the existing allotment, a proposed light industrial/commercial allotment of a little over 8,700 sq m in area.

4 The site is slightly undulating.

5 Although the present access to the existing residence is via Parkes Street, the site has an extensive frontage to Albion Street, which is the main truck bypass for Oberon.

6 Although the site is generally cleared, it contains a number of gentle slopes; a modest hillock towards its western end; and a depression incorporating very dry dam approximately in its southern centre.

7 Access to the three new residential allotments is…