Ghassibe J and Anor v Wingecarribee Shire Council [2007] NSWLEC 431

Land and Environment Court of New South Wales

CITATION : Ghassibe J and Anor v Wingecarribee Shire Council [2007] NSWLEC 431

APPLICANT: PARTIES : John Ghassibe and Cheryl Ann Ghassibe RESPONDENT: Wingecarribee Shire Council

FILE NUMBER(S) : 10382 of 2007

CORAM: Watts C at 1

KEY ISSUES: Development Application :- Dog breeding facility; noise impacts.

LEGISLATION CITED: Wingecarribee Local Environmental Plan 1989, (WLEP) Environmental Planning and Assessment Act 1979, ss 79C and 97

DATES OF HEARING: 12/07/2007

DATE OF JUDGMENT: 17 July 2007

APPLICANT: Mr A J Seton, solicitor SOLICITORS: LEGAL REPRESENTATIVES: Marsdens Law Group RESPONDENT: Mr B Bilinsky, solicitor SOLICITORS: B Bilinsky and Co

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Watts C

17 July 2007

10382 of 2007 – John Ghassibe and Cheryl Ann Ghassibe v Wingecarribee Shire Council

JUDGMENT

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of the (the council) to refuse a development application to establish a dog-breeding establishment at Lot 8, DP 263466, Nandi Road, Canyonleigh, in the Shire of Wingecarribee. 2 I visited the land in company with the parties on the morning of the first day of proceedings and I heard from a local resident Mr L Stewart. 3 I have concluded that the noise impacts would be sufficiently ameliorated if the recommendations of the acoustic engineer were implemented such that approval is warranted. There were no other principal contested issues. The land 4 The land 'Winmalee' is situated on the southern side of Nandi Road, at Canyonleigh. However, vehicular access to the land is from Hawkshill Road, Canyonleigh. 5 The land is irregular in shape but generally rectangular and slopes down to the north. The northern boundary about 383m in length follows Nandi Road. The eastern and western side boundaries have lengths of 816.15m and 1,112.51m respectively. The southern boundary is 383.27m in length and the land area is about 40.02 hectares. 6 Erected on the land is a brick-veneer dwelling-house of late 2003 vintage; a metal shed; nine (9) dog runs constructed with a pipe frame and chain wire; an American-style barn (kennel block) measuring 10m x 10m containing 13 dog pens, and a smaller whelping shed measuring 3m x 6m. Four of the dog runs are 12m x 40m and five are 12m wide x 80m long. Each dog run contains a kennel made from sheet metal erected on a concrete slab. The shed contains dog washing facilities and pens for dogs and wastewater from dog washing is discharged on to bare ground. 7 The land is presently used as a dog breeding facility without development consent having been granted. The facility appears to accommodate around 60 greyhounds but council inspections have disclosed a greater number of greyhounds than this. 8 The locality is characterised by relatively large allotments of about 40 hectares with some smaller sized allotments interspersed. 9 The closest neighbours Ms P Mildwater and Mr K McCarthy occupy Lot 140, Hawkshill Road, Canyonleigh, that is a small lot immediately to the south of the land with a dwelling situated about 150m from the existing dog breeding facility. The second closest dwelling, occupied by Mr and Mrs Raiti, at Lot 61, Hawkshill Road, Canyonleigh. This dwelling is erected on a small lot, situated to the southeast around 250m from the dog breeding establishment (400m from the kennel block according to Mr Gauld). Mr Chippendale and Ms Coppleton live at Lot 141 Hawkshill Road, Canyonleigh, and their residence is about 400m from the kennel block. 10 Other residents live further afield and Mr and Mrs Stewart live at Lot 160 Hawkshill Road, Canyonleigh, around 1600m from the kennel block. Relevant planning controls Wingecarribee Local Environmental Plan 1989, (WLEP) 11 Under the provisions of the WLEP the land is zoned No 1(a) (Rural) and the proposal is permissible with consent. The WLEP contains no other relevant controls or development standards. 12 Clause 9(3) of the WLEP states that consent must not be granted unless the development is "…consistent with the objectives of the zone". The land use table to Clause 9 provides objectives for the 1(a) Zone as follows: (a) to provide suitable land for agricultural use; (b) to regulate the subdivision of rural land to ensure that actual or potentially productive land is not withdrawn from production and to prevent the fragmentation of viable rural holdings, particularly in those areas designated as having prime crop and pasture potential; (c) to ensure identified extractive resources and mineral deposits are not rendered sterile from incompatible land usage; (d) to enable mining and extractive industry to occur in an environmentally acceptable manner; (e) to ensure subdivision is designed to maximise the retention of natural vegetation and to minimise potential for significant alterations to the natural landform by way of construction of access driveways, excavations, filling and the like; (f) to enable development for the purposes of tourism and recreation to occur in an environmentally acceptable manner; (g) to ensure development is carried out in a manner that minimises risks from natural hazards, particularly bushfires and flooding; (h) to recognise that rural localities cannot be economically provided with the level of service that apply in urban locations; and (i) to recognise the value of the rural scenic landscape to the local tourist economy and to protect these areas from smallholding rural subdivision. 13 The proposed development would be also subject to the requirements of Development Control Plan No. 10 – 'Dog Boarding, Breeding, Keeping and Training' and Development Control Plan No. 44 – 'Requirements for the Erection of Buildings'. 14 State Environmental Planning Policy No 58 (Protecting Sydney's Water Supply) also applies. The proposal and its history 15 Development application No LU07/0146 was lodged with the respondent council on 9 February 2007 to establish a dog-breeding facility on the land. It is proposed to reduce the number of dog runs to five (5) and to erect kennels within each run to accommodate the dogs at night. These dog runs would be in the location of the 12m x 80m runs, and it is proposed to erect an acoustic screen along the southern side of these runs and to erect a 1.5m high fence between each of the runs. The whelping shed is to remain in the garage of the residence. The four dog runs to the south of the kennel block would be removed. 16 The dog breeding facility has been in operation without the council's consent for about 3 years. On 20 December 2004, the council requested the applicants to lodge a development application. 17 In response to this council request, a development application for the dog breeding facility was lodged with the council in July 2005 (Application No. LUA05/0811). On 1 February 2006 this original development application, was refused by the council for the following reasons: i. The existing unauthorised dog breeding facility is contrary to the objectives and structural requirements of Council's Development Control Plan No. 10 – 'Dog Boarding, Breeding, Keeping and Training'. ii. The site is not suitable for the proposed development due to the extent of impact upon neighbouring residents. The noise impact from the existing unauthorised dog breeding facility exceed the intrusive noise criteria as specified by the New South Wales Industrial Noise Policy. iii. The proposed noise management strategy does not provide for a satisfactory reduction in intrusive noise levels, nor does it consider the noise impact on all neighbouring properties.