Lees v Cessnock City Council - [2008] NSWLEC 1221

Land and Environment Court

of New South Wales

CITATION: Lees and anor v Cessnock City Council [2008] NSWLEC 1221

PARTIES:
APPLICANT
Geoff Lees and Julie Radford
RESPONDENT
Cessnock City Council

FILE NUMBER(S): 11050 of 2007

CORAM: Brown C

KEY ISSUES: Development Application :- erection of dwelling - proximoty to existing puoltry farm

LEGISLATION CITED: Environmental Planning and Assessment Act 1979

DATES OF HEARING: 16/01/08, 21/05/08

EX TEMPORE JUDGMENT DATE: 21 May 2008

LEGAL REPRESENTATIVES:
APPLICANT
Ms Julie Radford, applicant
RESPONDENT
Mr R Mallik, solicitor
SOLICITORS
Mallik Rees Solicitors

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

21 May 2008

11050 of 2007 Geoff Lees and Julie Radford v Cessnock City Council
JUDGMENT

1 COMMISSIONER: This is an appeal against the refusal of Development Application No. 8/2006/1162/1 by Cessnock City Council (the council) for the erection of a single storey dwelling at 88 Sawyers Gully Road, Sawyers Gully (the site).

2 The proceedings were heard as a s 34 Conference on 16 January 2008. The Conciliation Conference was terminated as no agreement could be reached by the parties in accordance with s 34(3) of the Land and Environment Court Act 1979. Mr Mallik, for the council, advised that the council was reconsidering the development application and that it would be appropriate for the matter to be adjourned. This would allow further plans to be prepared based on discussions held at the s 34 Conference. The applicant did not oppose the adjournment. Mr Mallik advised on 9 March 2008 that the council agreed to proceed with Consent Orders with the objector providing evidence at the reconvened on site s 34 Conference on 21 May 2008.. The judgement reflects the contents of the Statement of Facts and Contentions and the findings given on-site on 21 May 2008.

3 The site is Lot 2 in DP 1005036. It is a regularly shaped lot with a frontage of 58 m to Sawyers Gully Road and a depth of 344.83 m giving a total site area of 2 ha. The land is currently vacant. The surrounding land use is rural in nature with an existing dwelling located to the north-west and an existing poultry farming establishment located to the south-east (72 Sawyers Gully Road).

4 The dwelling is to be located at a setback of 20 m from Sawyers Gully Road, 1.5 m from the north-western boundary and at a distance of 150 m from the nearest poultry shed on the adjoining property. A vegetated screen is to be provided between the dwelling and the existing poultry farming establishment.

5 Ms Robyn Marjoribanks provided evidence on-site. Ms Marjoribanks is the owner of an adjoining poultry farming establishment and raised concern that the dwelling could be affected by odour, dust, noise and light from the poultry farming establishment and that complaints from the dwelling could impact on the ongoing operation of her business. While accepting that a setback of 150 m is acceptable, it was her opinion that a setback of only…

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: [2008] NSWLEC 1221
Decision Date: 21 May 2008

CaseChat Overview and Summary

This appeal before the Land and Environment Court of New South Wales concerns the refusal by Cessnock City Council to approve a development application for the erection of a single storey dwelling at 88 Sawyers Gully Road, Sawyers Gully. The applicants, Geoff Lees and Julie Radford, sought to build a dwelling on a vacant lot adjacent to a poultry farming establishment. The council refused the application, citing concerns about potential impacts on the dwelling from the poultry farm, including odour, dust, noise, and light. The applicants appealed this decision, arguing that the proposed 150-metre setback and vegetative screen were sufficient to mitigate these impacts. The court was tasked with determining whether the council's refusal was justified and, if not, what conditions should be imposed to approve the development.

The court considered several key issues, including the adequacy of the proposed 150-metre setback from the nearest poultry shed and the appropriateness of the proposed vegetative screen. Ms. Robyn Marjoribanks, the owner of the adjoining poultry farm, argued for a greater setback distance, while Ms. Glenda Briggs from the Department of Primary Industries suggested that modelling of odour impacts would be more appropriate than relying solely on a setback distance. The court also examined the relevant planning instruments, including the Cessnock Local Environmental Plan 1989 and the Cessnock Development Control Plan 2006, to determine whether the proposed development complied with the guidelines for land use conflict and buffer zones.

After reviewing the evidence and considering the submissions from both parties, the court concluded that the council's position of a 150-metre setback and vegetative screen was reasonable and appropriate given the specific circumstances of the site. The court found that a greater setback would effectively render the site unusable for residential purposes due to bushfire protection requirements. The court also agreed that a vegetative screen would help reduce potential amenity impacts from the poultry farm. However, the court modified the conditions regarding the vegetative screen, reducing its width to 10 metres while ensuring it contained appropriate species for adequate amenity protection. The court also ruled that a positive covenant for ongoing maintenance of the vegetative screen was not necessary, as a deferred commencement condition would be sufficient.

The court upheld the appeal and approved the development application subject to the modified conditions outlined in Annexure A. The applicants were granted permission to build their dwelling at the specified location, provided they adhere to the revised conditions concerning the vegetative screen.

Orders