Land and Environment Court of New South Wales CITATION : Lees and anor v Cessnock City Council [2008] NSWLEC 1221 APPLICANT Geoff Lees and Julie Radford PARTIES : 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 APPLICANT Ms Julie Radford, applicant LEGAL REPRESENTATIVES: 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 130 m can be provided. 6 Ms Glenda Briggs, a Resource Officer with the Department of Primary Industries also provided evidence on site. She stated that it was the policy of her department to help resolve conflict between potentially conflicting land uses such as a dwelling and a poultry farming establishment. In her opinion, it would be more appropriate to conduct modelling of odour impacts rather than rely on a 150 m setback as proposed by the council. Based on a simple modelling exercise, she calculated that a setback of 347 m was required although she conceded that this was likely to be overly conservative. She supported the use of a vegetated screen providing it was of sufficient depth and planting. 7 The site is located within Zone No. 1(a) Rural under Cessnock Local Environmental Plan 1989. The construction of a dwelling house within this zone is permissible with consent. 8 Cessnock Development Control Plan 2006 (DCP 2006) applies. Part C-General Guidelines, Chapter 4-Land Use Conflict and Part D Buffer Zones and Chapter 6-Existing Policies and Guidelines relating to Poultry and zones of affectation are relevant. 9 The issues raised by Ms Marjoribanks and Ms Briggs relate to whether the 150 m setback of the dwelling from the nearest adjoining poultry shed is appropriate. The position taken by the council was that the 150 m setback and the vegetative screen is an acceptable compromise in allowing the erection of a dwelling on the site and would aid in the reduction of any amenity impacts. It was acknowledged that the proposed dwelling had been moved as far as possible from the existing poultry sheds, being only 1.5 m from the opposite side boundary. 10 With the benefit of the site view, I accept that the position adopted by the council of maximising the setback and providing a vegetative screen is reasonable and an appropriate response to the particular characteristics of the application and the site. A setback greater than 150 m would effectively sterilise the use of the site as the use of the rear portion of the site has limitations through requirements for protection from bushfires. The approach adopted by the council is consistent with cl 4.1.2 of DCP 2006 of minimising land-use conflicts between potentially incompatible land uses. Part 6.6 deals specifically with the impact of further development or subdivision around poultry farms. Part 6.6 deals with conflict of minimisation and proposes means of dealing with the potential impacts. The potential impacts include visual, noise, lights, odour and dust. I note that Part 6.6 relies on vegetative screening as a consistent mechanism to address these impacts. 11 There was disagreement between the parties on conditions relating to the proposed vegetative screen. The plans submitted with the application (but apparently not with the approval of the applicants) provided for a vegetative screen 15 m wide and some 75 m in length along the boundary adjoining the poultry farm. The council's conditions require ongoing maintenance of this vegetative screen through a positive covenant. 12 The applicant opposed the width of the vegetative screen, as it would limit the area available for their horses and while accepting the need for the ongoing maintenance of the vegetative screen, opposed this through a positive covenant. 13 After some discussion it was agreed that the width of the vegetative screen could be reduced to 10 m providing this area contained appropriate species to provide a similar level of amenity protection to that originally proposed with the 15 m width. A deferred commencement condition was the appropriate mechanism for this to occur. 14 On the question of the positive covenant; I accept that a condition requiring the planting and ongoing maintenance of the vegetative screening (as required by the deferred commencement condition) is appropriate and sufficient for the planting in ongoing maintenance of the vegetative screen, in this case. The reference to compliance through a positive covenant should be deleted. 15 The Orders of the Court are: 1) The appeal is upheld 2) Development Application No. 8/2006/1162/1 for the erection of a dwelling at 88 Sawyers Gully Road, Sawyers Gully is approved subject to the conditions in Annexure A. _____________ G T Brown Commissioner of the Court DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.