Blackman v Dungog Shire Council

Land and Environment Court

New South Wales

Medium Neutral Citation:

Blackman v Dungog Shire Council [2024] NSWLEC 1792

Hearing dates:

5-6 December 2024

Date of orders:

9 December 2024

Decision date:

09 December 2024

Jurisdiction:

Class 1

Before:

Walsh C

Decision:

The Court orders:

(1) The appeal is dismissed.

(2) Development Application No. DA 128/2023 for a boarding or training establishment comprising 28 breeding dogs at 241 Fishers Hill Road, Fishers Hill is determined by way of refusal.

(3) The exhibits are returned except for Exhibits 4, A-C, which are retained.

Catchwords:

APPEAL – development application – dog breeding establishment – noise amenity considerations – visual amenity considerations

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 8.7

Land and Environment Court Act 1979, s 34

Protection of the Environment Operations Act 1997

Dungog Local Environmental Plan 2014, cl 6.12,

Cases Cited:

Jonah Pty Limited v Pittwater Council (2006) 144 LGERA 40; [2006] NSWLEC 99

Renaldo Plus 3 Pty Ltd v Hurstville City Council [2005] NSWLEC 315

Texts Cited:

Dungog Development Control Plan 2013

NSW Environment Protection Authority, Noise Guide for Local Government 2023

NSW Environment Protection Authority, Noise Policy for Industry 2017

Category:

Principal judgment

Parties:

Cherilyne Blackman (First Applicant)
Frederick Blackman (Second Applicant)
Dungog Shire Council (Respondent)

Representation:

Counsel:
N Hammond (Applicants)
M Harker (Respondent)

Solicitors:
SWS Lawyers (Applicants)
Sparke Helmore Lawyers (Respondent)

File Number(s):

2024/270130

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This judgment relates to a Class 1 appeal under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by Dungog Shire Council (Council) of Development Application DA 128/2023 (DA) for “an animal boarding or training establishment (dog breeding)”.

Site and setting

2. The development is proposed on Lot 1 DP 794530 known as 241 Fishers Hill Road, Fishers Hill (site).

3. The locality is generally comprised of large rural lots with dwellings and associated agricultural uses.

Procedural background

4. This contested hearing comes before me after I had previously been delegated to conduct a conciliation conference in relation to the appeal under s 34(1) of the Land and Environment Court Act 1979. The conciliation conference commenced on 25 November 2024, with a site inspection and the hearing of a number of objecting submissions. Council's bundle of documents (Ex 1) also included documentation in relation to objecting submissions (Ex 1, Tabs 23, 25, 27, 28-34).

5. During a subsequent case management appearance on 3 December 2024, after the conciliation conference had been terminated, the parties agreed that the evidence from the conciliation conference would be admissible in these hearing proceedings.

6. There is no dispute that dog kennels operate at the site now and have done for a number of years.

7. While the matter was listed for hearing over two days, much of Day One was spent in an iterative process, where the applicant prepared amendments to the application and responsive expert reports where prepared. I note that at the commencement of Day Two of the proceedings, Council advised the Court that…