Lees v Cessnock City Council

Land and Environment Court

New South Wales

Medium Neutral Citation:

Lees and anor v Cessnock City Council [2011] NSWLEC 1098

Hearing dates:

20 April 2011, written submissions 29 April 2011

Decision date:

02 May 2011

Before:

Brown C

Decision:

Appeal upheld

Catchwords:

MODIFICATION - condition requiring setback of dwelling to existing poultry shed - odour

Legislation Cited:

Cessnock Development Control Plan 2006
Cessnock Local Environmental Plan 1989
draft Cessnock Local Environmental Plan 2010
Environment Planning and Assessment Act 1979
Hunter Regional Environmental Plan 1989
Land and Environment Court Act 1979
State Environmental Planning Policy (Rural Lands) 2008
Uniform Civil Procedure Rules 2005

Cases Cited:

Ali v Liverpool City Council [2009] NSWLEC 1327 Jonah Pty Limited v Pittwater Council [2006] NSWLEC 99
Lees and anor v Cessnock City Council [2008] NSWLEC 1221
Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298
North Sydney Council v Michael Standley & Associates Pty Ltd (97 LGERA 443
Windy Dropdown Pty Ltd v Warringah Council [2000] NSWLEC 240
Zhang v Canterbury City Council (2001) 115 LGERA 373

Category:

Principal judgment

Parties:

APPLICANT
Geoffrey Lees and Julie Radford

RESPONDENT
Cessnock City Council

Representation:

APPLICANT
Mr G Williams, solicitor

RESPONDENT
Mr R Mallik, solicitor
APPLICANT
MRM Thompson Norrie

RESPONDENT
Mallik Rees Lawyers

File Number(s):

10128 of 2011

Judgment

1. COMMISSIONER: This is an appeal against the refusal by Cessnock City Council (the council) of an application to modify a condition of development consent under s 96AA(3) of the Environmental Planning and Assessment Act 1979 originally granted by the Court on the 21 May 2008 for the erection of a dwelling at 88 Sawyers Gully Road, Sawyers Gully ( Lees and anor v Cessnock City Council [2008] NSWLEC 1221). The consent was further modified by the council on 18 September 2010.

1. The hearing was conducted as a Conciliation conference under s 34 of the Land and Environment Court Act 1979. As no agreement was reached between the parties and in accordance with s 34(4), the conciliation conference was terminated. In accordance with 34(4)(b)(i), the parties consented to me disposing of the proceedings forthwith.

1. The condition in dispute is condition 18 of the consent modified by the council and states:

18. Prior to the issue of the Occupation Certificate the applicant must provide to Council, a survey for the proposed dwellings from a Registered surveyor to demonstrate that no part of the dwelling as constructed is sited no closer than 150 metres from the nearest poultry shed, 20 metres from the front boundary and 1.5 metres from the northern dividing property boundary.

Reason

To ensure that the dwelling as constructed is situated in the building envelope proposed by the applicant.

1. The agreed position of the parties was that the dwelling has been constructed and satisfies the 20 m front setback and the 1.5 m side setback but was located 134.5 m from the nearest poultry shed on the adjoining property, rather than 150 m.

1. The councils Statement of Facts and Contentions opposed the modification…