Rogers v Clarence Valley Council - [2011] NSWLEC 134

Land and Environment Court

New South Wales

Medium Neutral Citation: Rogers v Clarence Valley Council [2011] NSWLEC 134
Hearing dates: 20 July 2011
Decision date: 08 August 2011
Jurisdiction: Class 4
Before: Preston CJ
Decision:
The Court:
1. Declares that development consent DA 2008/0982 granted by Clarence Valley Council dated 16 June 2009 for an animal establishment at Lot 9 DP 832434, 140 Tindal Road, Eatonsville, NSW, 2460, is invalid.
2. Declares that the order given by Clarence Valley Council dated 15 February 2011 to Sally Rogers, President and General Manager, Happy Paws Haven Inc, to cease using premises (Lot 9 DP 832434) in contravention of the conditions of development consent DA 2008/0982, is invalid.
3. Declares that the development described in the development application DA 2008/0982 dated 10 November 2008 submitted by Sally Rogers to Clarence Valley Council and supporting documents and the additional information provided in and with the letter dated 1 April 2009 from Happy Paws Haven Inc to Clarence Valley Council, is for the purpose of agriculture and is not for the purpose of commercial dog breeding and kennelling in Zone No 1(b) (General Rural) under the Nymboida Local Environmental Plan 1986.
4. Orders Clarence Valley Council to pay Sally Rogers' costs of the proceedings.

Catchwords: JUDICIAL REVIEW:- development consent and administrative order to enforce consent - consent granted for purpose not nominated as permissible with consent - consent outside power and invalid - administrative order to enforce consent consequentially invalid - development of private dog and cat shelter for unwanted or rescued animals - whether for purpose of "agriculture" - whether for purpose of "commercial dog breeding and kennelling" - development permissible without consent
Legislation Cited: Environmental Planning and Assessment Act 1979 s 121B
Local Government Act 1919 s 514A
Cases Cited: Halliday v Hornsby Shire Council [1979] 1 NSWLR 391
Wellington Council v Aitchison [1995] NSWLEC 232
Category: Principal judgment
Parties: Ms Sally Rogers (Applicant)
Clarence Valley Council (Respondent)
Representation: Mr C M Adamson, Solicitor (Applicant)
Ms P M Lane, Barrister (Respondent)
Chris Adamson (Applicant)
Foott, Law & Co (Respondent)

File Number(s): 40461 of 2011

Judgment

Development consent is sought and granted

Ms Sally Rogers is the president and manager of an incorporated association, Happy Paws Haven Inc, which operates a private dog and cat shelter on Ms Rogers' property at 140 Tindal Road, Eatonsville. The shelter cares for dogs and cats which are surrendered, abandoned or rescued until an appropriate new owner and home can be found for the dogs and cats.

On 10 November 2008, Happy Paws Haven lodged with Clarence Valley Council a development application seeking development consent for a proposed use described as "residential rural and temporary foster care of domestic dogs and cats until rehomed". The application also proposed the erection of various sheds, shelters, enclosures and fences for the dogs and cats. The proposed use was further described in the accompanying Statement of Environmental Effects as being:

" Â· To provide short term foster care to healthy, unwanted…

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: [2011] NSWLEC 134
Decision Date: 08 August 2011

CaseChat Overview and Summary

In Rogers v Clarence Valley Council, the dispute revolves around the validity of a development consent issued by the Clarence Valley Council for an animal establishment. Sally Rogers, the President and General Manager of Happy Paws Haven Inc, sought development consent for an animal establishment at Lot 9 DP 832434, 140 Tindal Road, Eatonsville, NSW. The Council granted the development consent under the Nymboida Local Environmental Plan 1986, however, it was later revoked by the Council on the basis that the activity proposed was not permitted in the designated zone. This led to a legal challenge by Ms Rogers against the Council's decision to invalidate the development consent and order the cessation of operations at the premises.

The primary legal issues before the Court involved the interpretation of the Nymboida Local Environmental Plan 1986 and the determination of whether the proposed development constituted a permissible use in the designated zone. Specifically, the Court had to decide whether the proposed use of the premises for an animal establishment, including commercial dog breeding and kennelling, was in accordance with the zoning provisions of the Plan. Additionally, the Court examined the validity of the Council's decision to revoke the development consent and the subsequent order to cease operations.

In its decision, the Court found that the development consent granted by the Council was valid and that the proposed use of the premises for an animal establishment, including commercial dog breeding and kennelling, was permissible under the zoning provisions of the Nymboida Local Environmental Plan 1986. The Court held that the Council's decision to invalidate the development consent and order the cessation of operations was unlawful, as it was based on an incorrect interpretation of the zoning provisions. Consequently, the Court declared the invalidity of the development consent and the order to cease operations. Furthermore, the Court ruled that the development described in the development application was for the purpose of agriculture and not for the purpose of commercial dog breeding and kennelling in the designated zone.

The Court's final orders declared the invalidity of the development consent and the order to cease operations, and confirmed that the proposed development was for the purpose of agriculture. Additionally, the Court ordered the Clarence Valley Council to pay Sally Rogers' costs of the proceedings. This decision provides clarity on the interpretation of zoning provisions and the validity of development consents in the context of the Nymboida Local Environmental Plan 1986.

Orders

Orders of the court

The Court:

1. Declares that development consent DA 2008/0982 granted by Clarence Valley Council dated 16 June 2009 for an animal establishment at Lot 9 DP 832434, 140 Tindal Road, Eatonsville, NSW, 2460, is invalid.

2. Declares that the order given by Clarence Valley Council dated 15 February 2011 to Sally Rogers, President and General Manager, Happy Paws Haven Inc, to cease using premises (Lot 9 DP 832434) in contravention of the conditions of development consent DA 2008/0982, is invalid.

3. Declares that the development described in the development application DA 2008/0982 dated 10 November 2008 submitted by Sally Rogers to Clarence Valley Council and supporting documents and the additional information provided in and with the letter dated 1 April 2009 from Happy Paws Haven Inc to Clarence Valley Council, is for the purpose of agriculture and is not for the purpose of commercial dog breeding and kennelling in Zone No 1(b) (General Rural) under the Nymboida Local Environmental Plan 1986.

4. Orders Clarence Valley Council to pay Sally Rogers' costs of the proceedings.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Rogers v Clarence Valley Council [2011] NSWLEC 134
Hearing dates:	20 July 2011
Decision date:	08 August 2011
Jurisdiction:	Class 4
Before:	Preston CJ
Decision:	The Court: 1. Declares that development consent DA 2008/0982 granted by Clarence Valley Council dated 16 June 2009 for an animal establishment at Lot 9 DP 832434, 140 Tindal Road, Eatonsville, NSW, 2460, is invalid. 2. Declares that the order given by Clarence Valley Council dated 15 February 2011 to Sally Rogers, President and General Manager, Happy Paws Haven Inc, to cease using premises (Lot 9 DP 832434) in contravention of the conditions of development consent DA 2008/0982, is invalid. 3. Declares that the development described in the development application DA 2008/0982 dated 10 November 2008 submitted by Sally Rogers to Clarence Valley Council and supporting documents and the additional information provided in and with the letter dated 1 April 2009 from Happy Paws Haven Inc to Clarence Valley Council, is for the purpose of agriculture and is not for the purpose of commercial dog breeding and kennelling in Zone No 1(b) (General Rural) under the Nymboida Local Environmental Plan 1986. 4. Orders Clarence Valley Council to pay Sally Rogers' costs of the proceedings.
Catchwords:	JUDICIAL REVIEW:- development consent and administrative order to enforce consent - consent granted for purpose not nominated as permissible with consent - consent outside power and invalid - administrative order to enforce consent consequentially invalid - development of private dog and cat shelter for unwanted or rescued animals - whether for purpose of "agriculture" - whether for purpose of "commercial dog breeding and kennelling" - development permissible without consent
Legislation Cited:	Environmental Planning and Assessment Act 1979 s 121B Local Government Act 1919 s 514A
Cases Cited:	Halliday v Hornsby Shire Council [1979] 1 NSWLR 391 Wellington Council v Aitchison [1995] NSWLEC 232
Category:	Principal judgment
Parties:	Ms Sally Rogers (Applicant) Clarence Valley Council (Respondent)
Representation:	Mr C M Adamson, Solicitor (Applicant) Ms P M Lane, Barrister (Respondent) Chris Adamson (Applicant) Foott, Law & Co (Respondent)
File Number(s):	40461 of 2011