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