McHugh v Bathurst Regional Council

Case •

[2015] NSWLEC 1291

•

31 July 2015

No judgment structure available for this case.

Land and Environment Court


New South Wales

Medium Neutral Citation: McHugh v Bathurst Regional Council [2015] NSWLEC 1291
Hearing dates:9 & 10 July 2015
Decision date: 31 July 2015
Jurisdiction:Class 1
Before: Morris C
Decision:

Appeal upheld

Catchwords: DEVELOPMENT APPLICATION: animal boarding establishment; impacts on amenity, traffic, roadworks
Legislation Cited: Environmental Planning and Assessment Act 1979; Bathurst Regional (Interim) Local Environmental Plan 2005; Bathurst Regional Local Environmental Plan 2014; Protection of the Environment Operations Act 1997
Cases Cited: BGP Properties Pty Ltd v Lake Macquarie City Council [2004] NSWLEC 399; Newbury Council v Secretary of State for the Environment NDSC [1981] [AC578]
Texts Cited: Bathurst Regional (Interim) Development Control Plan 2011; Industrial Noise Policy; Noise Guide for Local Government
Category:Principal judgment
Parties: Brendan McHugh (Applicant)
Bathurst Regional Council (Respondent)
Representation:

Counsel:
Mr M Astill (Applicant)
Mr P Clay SC (Respondent)

  Solicitors:
Mr M Driscoll, BCP Lawyers and Consultants (Applicant)
Mr P Crennan, Crennan Legal (Respondent)
File Number(s):10091 of 2015

Judgment

  1. Mr McHugh lodged Development Application 2014/0044 with Bathurst Regional Council on 11 February 2014 seeking consent to erect new dog kennels and use an existing shed as an animal boarding establishment at 108 Marys Lane, Dunkeld. The council refused consent and McHugh is appealing that decision.

  2. The main contentions in the case relate to amenity and traffic safety impacts.

The site and its context

  1. The site is described as Lot 1 in DP 709530 known as 108 Marys Lane Dunkeld. Dunkeld is a locality situated approximately 12.5k west of Bathurst and is a rural area used for a variety of agricultural and large lot residential uses.

  2. The lot is irregular in shape and has an area of 18.2ha with its northern boundary fronting the Mitchell Highway however no access to the site is provided off that road. All vehicular access is from Marys Lane, a formed gravel road that extends east from the southern side of the highway adjacent to the eastern boundary of the site to its intersection with the highway approximately 1000m south west of the site entrance. Only four other properties are serviced by Marys Lane.

  3. Evans Plans Creek flows generally from south to north and enters the site approximately 300m from its northern boundary and then flows generally parallel to the eastern boundary exiting at approximately the mid-point of the northern boundary. The land slopes generally from south to north and west to east.

  4. A dwelling house and a number of outbuildings are currently erected on the site.

  5. The locality is characterised by rural properties with a number of dwellings located in the vicinity of the site, the closest being approximately 200m away. An existing animal boarding establishment operates approximately 1000m to the south east of the site at 113 Evans Plains Creek Road.

The proposal

  1. The application is for the construction of a new building and its use as a dog boarding kennel with covered external runs and internal kennels to house a maximum of 24 dogs. The proposed kennel building would be constructed approximately 25m to the south of the dwelling from concrete block walls, metal roof and would be air-conditioned to address noise issues. In addition to the individual runs associated with the kennel building, two larger dog runs are proposed between that building and the dwelling. These would be constructed using steel frames and wire fencing.

  2. An existing shed to the west of the proposed kennel building would be altered through the erection of internal partitions to accommodate up to 20 cats and other pets such as guinea pigs. That shed is currently used to store farm equipment and that use will continue in the western portion of the building.

  3. The application also includes earthworks to level the areas and runs, an effluent disposal system and the installation of an advertising sign at the northern end of the site. That sign would be a “V” sign with each panel measuring 3m x 2m (total 6sqm) however the area exceeds the 5sqm maximum that prescribed in the council’s development control plan and the council seeks to impose a condition that reduces the area to 5sqm. The applicant did not oppose that condition (condition 31).

  4. The application was originally considered by the council in July 2014 when it deferred consideration of the application which was ultimately refused on 19 September 2014 despite staff recommending consent be granted subject to conditions.

  5. Further assessment of an amended application lodged pursuant to the provisions of s82A of the Environmental Planning and Assessment Act 1979 (EP&AAct) that provided additional acoustic information and details of building treatment was considered by the council at its 10 December 2014 meeting when it confirmed it decision to refuse consent. The report from its staff had recommended consent be granted.

The planning controls

  1. At the time the application was lodged with the council, the site was zoned 1(e) Outer Rural under the provisions of Bathurst Regional (Interim) Local Environmental Plan 2005 (BRILEP2005).

  2. Bathurst Regional Local Environmental Plan 2014 (LEP2014) was made on 19 November 2014 and includes savings provisions in clause 1.8A as follows:

If a development application has been made before this Plan commences in relation to land to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this Plan had not commenced.

  1. Accordingly, BRILEP2005 is the relevant environmental planning instrument. Clause 6(3) is in the following form:

Consent must not be granted to the carrying out of development within a particular zone unless the consent authority has taken the objects of the zone into account and:

(a) is satisfied that the proposed development is consistent with one or more of those objects, or

(b) if the proposed development is development of the kind that is identified by this plan as usually not consistent with those objects—is satisfied that, in the particular circumstances of the case, it is appropriate that the proposed development be carried out.

  1. The objectives of the1(e) zone are:

(1) The objectives of the zone are as follows:

(a) to support and maintain the continued viability of agricultural development in rural areas located near the urban fringe areas of Bathurst,

(b) to enable development that is appropriate for broad acre productive land used for grazing and cropping to be carried out,

(c) to provide for a range of compatible land uses to be carried out on land within the zone that are in keeping with the rural character of the locality and do not unnecessarily convert prime crop and pasture land to non-agricultural land uses,

(d) to protect and conserve the scenic environment by controlling the location of buildings and materials used, particularly in development adjacent to a major road or located within a scenic protection area or within an identified remnant bushland area,

(e) to protect and conserve valuable deposits of minerals, coal, petroleum and extractive materials by controlling the location of development to enable the efficient extraction of those deposits.

(2) Development for the purpose of the following is usually not consistent with the objectives of this zone:

boarding houses, bulky goods salesrooms or showrooms, generating works, industries (other than extractive, high technology, home or rural industries), motor showrooms, road transport terminals, service stations, shops, vehicle body repair workshops, vehicle repair stations, warehouses.

  1. Animal boarding establishments are permissible with consent in the 1(e) zone.

  2. The site is currently zoned RU1 Primary Production under LEP2014 and the use remains permissible with consent under that instrument.

  3. Bathurst Regional (Interim) Development Control Plan 2011 (DCP) also applies to the application as it includes similar savings provisions. Chapters 5 (Business and Industrial Development), 6 (Rural Development), 9 (Environmental Considerations) and 12 (Signage and Colour Schemes) contain relevant considerations.

The issues

  1. A number of the contentions detailed in the council’s Statement of Facts and Contentions (Exhibit 1) were resolved through the joint conferencing process or by the applicant providing additional information. Those are 2, 3, 6 and 7. The council still presses noise impacts (1), separation distance (4) and traffic impacts (5).

The evidence

  1. The hearing commenced on site with a view conducted including the area of the proposed kennels, the existing shed and proposed dog runs. The Court was then taken to the intersection of Marys Lane and the Mitchell Highway where the traffic experts explained the contentions that relate to traffic, the condition and construction of that intersection and its alignment, sight lines and opportunities for improvements to carriageway width, surfacing and turning options.

  2. The parties and the Court then proceeded to the site of the existing kennels in Evans Plains Road where evidence was heard from a number of objectors including the operators of that kennel. The operator, Ms Norton, provided a Statement of Evidence, Exhibit 5, and was not required for cross examination. That statement included details of traffic attending the kennels over the Easter period and was used by the traffic experts to assess the likely impacts of the proposed kennels.

  3. The issues raised are summarised as noise impacts, particularly in relation to a “chain reaction” that may result from dogs barking at the existing kennels and from being contained within the air-conditioned kennels; traffic safety in relation to persons using Marys Lane who are unaccustomed to its unsealed nature; concerns about safety of children who walk along Marys Lane from the bus stop at the intersection of Marys Lane and the Highway; mud and dust from traffic using the lane; personal safety from persons visiting the wrong property when attempting to find the site and from dogs escaping the site; development will exacerbate existing traffic safety issues associated with the intersection of Marys Lane and the Mitchell Highway, with a recent accident having occurred there; conflict with cattle breeding and grazing activities; amenity impacts affecting enjoyment of property and outdoor areas; visual impacts adversely impacting the scenic environment.

Traffic

  1. Expert traffic evidence was heard from Mr C McLaren for the council and Mr A Brown for the applicant. They agree that the average traffic generation from the development would be 8 trips per day (4 in and 4 out) with the Easter peak period increasing to 32 trips (16 in and 16 out) per day. The traffic generation from the existing four residences would be 30 trips per day. During the Easter season peak hour vehicle trips would be up to 4 associated with the development and 3 associated with the existing residences. They expect an overlap of the development and residential peak traffic in the morning however it would be limited during evening peak. For the Easter holiday morning peak traffic for Marys Lane there would be 2 trips in and 2 trips out.

  2. They agree there will be a simple split of traffic turning into/out of Marys Lane. Since the lane is not a through road, trips in will balance trips out and the proportion of right turning vehicles from the highway will equal the left turning vehicles onto the highway from the highway. It is agreed that the 2015 Annual Average Daily Traffic (AADT) for the Mitchell Highway at Marys Lane is approximately 8,000 vehicles per day.

  3. Whilst it is agreed that there is no need to seal the formation of Marys Lane for its full extent from the highway to the driveway of the site, the experts also agree that the additional traffic is likely to require more regular maintenance by council of the gravelled road formation of Marys Lane. The potholes that occur outside the main turning paths at the intersection are predominately due to west bound heavy vehicles driving off the highway into the wide open area (stockpile site) adjacent and southwest of the intersection.

  4. Marys Lane forms an acute angle of approximately 135 degrees with the Mitchell Highway and the experts agree that the current intersection is below modern design standards. The current design standard is for a Basic Right Turn treatment (BAR) and would require the widening of the highway to provide an additional traffic lane to facilitate vehicles passing a vehicle that is stopped to turn right into Marys Lane. According to the evidence, such treatment has been identified by Roads & Maritime Services (RMS) as being a medium priority for upgrade including signage with works carried out in order of priority as funding becomes available.

  5. The experts agree that there is an accident problem on the Mitchell Highway for the segment through Dunkeld. Mr McLaren says the road operates with respect to accident rates above the threshold of 2.11 accidents per 100MVkm for fatal accidents, above the threshold of 11.52 accidents per 100MVkm for serious accidents and below the threshold of 49.3 accidents per 100MVkm for total accidents. They note that following a three vehicle accident in March 2015 the RMS has announced a proposed safety audit for the highway. Mr Brown says none of the accidents are of a type or location that indicates a relationship to Marys Lane with the closest accident involving a single westbound vehicle (motorcycle) that failed to negotiate the slight bend in the highway with speed and alcohol reported factors.

  6. Mr McLaren considers that the development necessitates the provision of a bitumen surface treatment for at least 30 metres within Marys Lane and to align the approach closer to a 90 degree/conventional junction treatment for the additional traffic generated that includes new users that are unfamiliar with conditions at the intersection and along Marys Lane. He says these customers may at times utilise car-trailer vehicle combinations that have slower acceleration rates when turning form the give-way priority conditions when either turning right into Marys Lane from the highway or left onto the highway from Marys Lane. The left turn from the highway is tight which can lead to vehicles propping/slowing more noticeably on the highway prior to making the left turn way into Marys Lane from the highway. He considers an auxiliary left turn treatment is likely to be necessary given the acute 135 degree turn into Marys Lane from the highway although the major road traffic volume in this case is much less as it relates to those vehicles following in the westbound direction. Risks are lower for the left turn into Marys Lane compared to the much higher risk level for the right turn.

  7. Both experts included in their Statements of Evidence in Chief (Exhibit A – Brown and Exhibit 6 – McLaren) Figure 4.9(a) from Austroads Guide to Road Design. The table shows the warrant to an intersection in a speed environment of 100km/h or greater for particular intersection designs. The BAR/BAL (basic right/left) is required where there is between 400 and 800 vehicles per hour with a turning volume of 5 vehicles per hour. Mr McLaren calculates the increase in traffic would be, for the left turn from Mitchell Highway to Marys Lane at 4.566 whilst the tor the forecast future right turn the point is 3.132. This is slightly less than the warrant however Mr McLaren says it should be rounded up and is required and is on the border line of requiring a Channelised right turn treatment (CHR).

  8. Mr Brown says the additional traffic is minimal with the peak traffic only adding one vehicle in each direction to the intersection. For this reason he says the development does not demand any works, what does demand the work is the current configuration of the intersection which is not up to standard.

  9. The council’s draft conditions of consent (Exhibit C) required the provision of a BAR and BAL treatment at the intersection, the installation of a bitumen sealed surface on Marys Lane for a distance of not less than 30m from the edge of the bitumen surface of the Mitchell Highway, the linemarking and sign posting with Give-way signs facing Marys Lane and the installation of T-intersection warning signs on the Mitchell Highway on both approaches to Marys Lane.

  10. Mr Astill, for the applicant offered, during the course of the hearing to seal the area as required and install the advisory signs however says, based on the existing intersection configuration and conditions and the marginal increase in traffic associated with the development that any further works would be unreasonable in the circumstances of the case. Mr Brown says that the intersection is not constructed to current design standards and that the development will not create a significantly different situation than what is currently being experienced. There is not enough traffic from this development to warrant the works. That traffic won’t create any delay. He says that even without any increase in traffic, the BAR should be constructed. This is a matter for the RMS and not the applicant. The RMS has identified a need to carry out a safety audit and may choose to undertake the works at some stage.

  11. The traffic experts were asked during the hearing, to estimate the cost of those works. They provided Exhibit F, a hand written document that contains the following estimates of costings:

Bitumen sealing and signage      $13,500

BAL                  $20,000

BAR                  $135,000

  1. The BAR is costly because of the embankment that would require filling and retaining in the location of the works. For that reason, the council reviewed its requirement for the BAR however presses the remainder of the works.

  2. After the conclusion of the hearing, the applicant sought leave to rely on a Supplementary Report by Mr Brown. I heard that Notice of Motion on 24 July and did not grant the leave sought. That was because I found that there were no grounds to allow the leave sought and to do so would have the effect of amending the applicant’s application and require reopening of the case.

  3. Mr Brown says the works offered by the applicant would improve the existing situation, add to the visibility of the intersection, benefitting those not familiar with it as signage would highlight the location. It readily identifies the location of the approach to the intersection and marking of the centreline would improve the turning manoeuvre.

  4. Mr McLaren says there is a need for the left slip lane to ensure vehicles can slow and turn into Marys Lane with safety and not obstruct the through traffic.

Acoustic

  1. Expert acoustic evidence was heard from Mr B Clarke for the applicant and Mr S Cooper for the council. They had prepared individual reports (Exhibit B – Clarke and Exhibit 8 – Cooper) and a Joint Report, Exhibit 9.

  2. The council contends that the proposed development will generate noise which:-

  • Is likely to cause unacceptable disturbance to the neighbourhood;

  • Is likely to exceed the background noise level by more than 5dB(A) when measured at residences not associated with the proposed development;

  • Is likely to cause sleep disturbance at residences not associated with the proposed development;

  • May be offensive;

  • Has not been demonstrated to be adequately attenuated;

  • When combined with the noise of barking dogs from the existing kennels at 113 Evans Plains Road, Dunkeld (both as present and with additional barking anticipated as responsive barking caused by the barking of dogs at the proposed kennels) the cumulative impact will be unacceptable for the reasons outlined above.

  1. In addition, the council contends that because the kennels are located within 500m of 2 residences not associated with the proposed development, one of which is approximately 200m from the kennels and by reason of the noise impact of the kennels there is insufficient separation distance of the kennels from existing residences.

  1. Additional noise assessment had been prepared on behalf of the applicant which is why the council no longer pressed contentions 2 and 3. Both experts have undertaken noise monitoring.

  2. The experts agree that the ambient noise monitoring conducted on site at three locations has established site specific noise criteria based on the NSW Industrial Noise Policy and the EPA’s Noise Guide for Local Government (NGLG). They have assessed the measurements and agree that the night time sound level contribution from the development would be well below the minimum ambient background level recorded by both experts. They also agree that there is adequate separation distance between the proposed and existing kennels.

  3. Additional calculations were conducted in the noise assessment to determine a “worst case” cumulative noise prediction associated with dogs from the site and the existing kennels. The experts agree that this determined that the combined noise levels would not result in an exceedance of established noise objectives at any of the surrounding residential receivers.

  4. They agree that at times noise from the kennels can meet the LAeq15 minute standard adopted and that this noise could disturb some residents but not others. There will be some locations where the noise from the existing kennels exceeds that of the proposed kennels and others where the opposite is the case. Mr Clarke says that provided the noise controls measures are adopted this should not occur frequently. Mr Cooper says the residents identified they are currently disturbed by the existing kennels so, because of the proximity of the proposed kennels, this disturbance could be greater during the day but not at night.

  5. They considered whether the noise was likely to be offensive noise as defined under the Protection of the Environment Operations Act 1997 (POEO) by reference to the guidelines in the NGLG. Mr Clarke says, in response to the six questions, no to all other than question 2. In that circumstance, he says that because the noise has the potential to be irritating, that is why a penalty has been applied to the predictions in the modelling. Mr Cooper answered yes in the day and no at night for questions 1 and 3, yes for 2, 5 and 6 and no to 4.

  6. Based on the assessment and the proposed operation of the facility they consider it will be acoustically acceptable and recommend that a Plan of Management (POM) be prepared to reflect proposed construction, management procedures and hours of operation. Specific provisions are recommended. The requirement for an operational management plan is reflected in condition 3 of the council’s draft conditions filed on 17 July 2015 and the specific provisions are reflected in conditions 1, 3, 4, and 5. Specific noise criteria are included in condition 2 and limitations on the number of animals and hours of use of the individual runs are imposed under conditions 6 and 7.

Conclusion and findings

  1. For consent to be granted, I must be satisfied that the proposed development is consistent with one or more of the 1(e) zone objectives. As an animal boarding establishment is not included in the list of uses in subclause (2) as generally not being consistent, the provisions of that subclause do not apply.

  2. Having regard to the evidence, I am satisfied that the development is consistent with objective (c) because of the small scale nature of the proposed built form. Accordingly, the development will protect and conserve the scenic environment through the location of buildings, materials used and the location of those structures, and, not being adjacent to a major road or located within a scenic protection area of identified remnant bushland area, satisfies that objective. It would not restrict the ability of the remainder of the site to be used for grazing or cropping so it is also consistent with objective (b).

  3. There are no other provisions in BRILEP2005 or the DCP that are relevant to determination of the application. Accordingly, the provisions of s79C of the EP&AAct guide consideration of relevant matters. In particular, the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality and the suitability of the site for the development. In addition, the matters raised in submissions to the council must be considered.

  4. The BRILEP2005 provides for animal boarding establishments as a use that is considered appropriate in the zone. McClellan CJ in BGP Properties Pty Ltd v Lake Macquarie City Council [2004] NSWLEC 399 provided guidance and stated:

117 In the ordinary course, where by its zoning land has been identified as generally suitable for a particular purpose, weight must be given to that zoning in the resolution of a dispute as to the appropriate development of any site. Although the fact that a particular use may be permissible is a neutral factor (see Mobil Oil Australia Ltd v Baulkham Hills Shire Council (No 2) 1971 28 LGRA 374 at 379), planning decisions must generally reflect an assumption that, in some form, development which is consistent with the zoning will be permitted. The more specific the zoning and the more confined the range of permissible uses, the greater the weight which must be attributed to achieving the objects of the planning instrument which the zoning reflects (Nanhouse Properties Pty Ltd v Sydney City Council (1953) 9 LGR(NSW) 163; Jansen v Cumberland County Council (1952) 18 LGR(NSW) 167). Part 3 of the EP&A Act provides complex provisions involving extensive public participation directed towards determining the nature and intensity of development which may be appropriate on any site. If the zoning is not given weight, the integrity of the planning process provided by the legislation would be seriously threatened.

118 In most cases it can be expected that the Court will approve an application to use a site for a purpose for which it is zoned, provided of course the design of the project results in acceptable environmental impacts.

  1. Animal boarding establishments continue to be permissible with consent under the provisions of LEP2014 and this fact further reinforces the finding that the council consider such a use to be appropriate within the rural Primary Production zone.

  2. The likely acoustic impacts of the development have been thoroughly tested and, whilst there is no doubt that at times, the noise of barking dogs will be audible at adjoining properties, I am satisfied, based on the agreement of the acoustic experts that the noise impacts are acceptable. The council has imposed and the applicant accepts, a comprehensive set of conditions that address noise issues including construction requirements, limiting noise emissions and imposing operational requirements. The conditions also provide for validation of the proposed acoustic amelioration measures (conditions 11 and 12) and a complaint handling protocol. These conditions should ensure the development is managed in a way that ensures no adverse amenity impacts occur. The fact that the proposed kennels are in close proximity to the dwelling house occupied by the operator should also further ensure that any noise impacts are appropriately managed. The construction of the kennels and the keeping of dogs within the building at night should ensure no sleep disturbance.

  3. I accept that it is likely that there will be noise at times associated with the kennel usage. That is, according to the evidence of those persons who gave evidence on the site of the existing kennels, occurring at the moment in the locality. What is different is that the proposal includes much more stringent provisions, in terms of construction, operation and management. This will be managed to a far greater degree than the existing operations and the kennels will be constructed to ensure the impacts, particularly at night are within acceptable limits as agreed by the acoustic experts.

  4. In relation to traffic impacts, there is no issue raised by the traffic experts in relation to the capacity of Marys Lane to deal with the vehicles that would attend the site should consent be granted other than the likelihood of that traffic increasing the requirement for maintenance. Having regard to the traffic generated by the proposal, I do not consider that to be a reason to refuse consent.

  5. The main contention relates to the intersection of Marys Lane and the Mitchell Highway. The experts agree that its existing configuration does not satisfy current design standards. The RMS has identified the intersection as one that requires upgrading and has listed it as a medium priority. Such treatment would involve a BAR treatment. The council is seeking the applicant to improve the intersection by undertaking the following works (draft condition 17):

  1. The installation of a bitumen sealed surface on Marys Lane for a distance of not less than 30 metres from the edge of the bitumen surface of the Mitchell Highway;

  2. The intersection of Marys Lane and the Mitchell Highway is to be line marked and sign posted with “Give Way” signs facing Marys Lane;

  3. T-intersection warning signs are to be erected on the Mitchell Highway on both approaches to Marys Lane;

  4. A Basic Left Turn (BAL) Treatment shall be provided in the Mitchell Highway for 50 metres leading to the intersection with Marys Lane to allow vehicles turning into Marys Lane to slow and to mover to the left to allow through traffic to pass on the right hand side.

  1. The applicant consents to a, b and c however submits that the works are not required as a result of the proposal but offered to improve the existing situation, deemed unsatisfactory. Mr Astill, for the applicant, submits that the requirement to carry out the works is a “catch-up” and not generated by the development. The peak increase generated by the proposal increases traffic at the intersection from 2 vehicles per hour to 4 per hour which he says does not provide a nexus to the work. He says, having regard to the principles in Newbury Council v Secretary of State for the Environment NDSC [1981] [AC578] it fails to meet the tests of fairly and reasonably relating to the proposal and being reasonable in a broad sense, in terms of quantum.

  2. The total cost of works now sought by the council and described at [56] amounts to $33,500.

  3. I accept that the intersection does not meet current day design standards. This fact is agreed by the experts and has been recognised by the RMS and identified in its future works program. In addition, it is undertaking a safety audit of this stretch of the highway. The proposed development does not alter that fact.

  4. I do not however accept that, based on the low traffic generated by the development, it would be reasonable to require the applicant to undertake that work sought to be imposed by the council. The average traffic generated by the development is 8 trips per day, similar to that generated by a dwelling house. The experts agree that the peak Easter period would generate 32 trips, similar to the usual daily traffic generated from the existing residents. For these reasons, I do not consider the works sought by the council reasonably and fairly relate to the development proposed. The works are required as the result of an existing unsatisfactory situation and the development does not alter that situation to such an extent that the applicant should be required to remedy that situation.

  5. I do agree that the installation of the T-intersection warning signage proposed is appropriate and should be funded by the applicant. This is because it would, in conjunction with the proposed identification signage to which no objection was raised by the council other than seeking to limit its size, alert persons unfamiliar with the location of the intersection as well as other road users.

  6. Having regard to the issues raised by objectors to the proposal and my findings detailed above, I am satisfied that the proposal is satisfactory and can be operated in a manner that will ensure the preservation of the amenity of the area and accord to the objectives of the zone.

  7. There are minor disagreements in terms of the wording of some of the other consent conditions however the intent is similar. I have selected those versions which best reflect the evidence before me and I consider to be reasonable and appropriate in the circumstances of the case and reflect best environmental practice. The numbering of the conditions therefore differs to that referred to in this Judgment and Exhibit 10.

  8. There being no reason to refuse consent the Orders of the Court are:

  1. The appeal is upheld.

  2. Development Application 2014/0044 for the erection of new dog kennels and use an existing shed as an animal boarding establishment at 108 Marys Lane, Dunkeld is approved subject to the conditions in Annexure A.

  3. The exhibits, other than exhibits D and 1, are returned.

_______________

Sue Morris

Commissioner of the Court

10091 of 2015 Morris (C) (317 KB, pdf)

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Decision last updated: 31 July 2015

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BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399