Acers v Wollondilly Shire Council [2014] NSWLEC 1169

Land and Environment Court New South Wales

Medium Neutral Citation: Acers v Wollondilly Shire Council [2014] NSWLEC 1169 Hearing dates: 21 May 2014 Decision date: 19 June 2014 Jurisdiction: Class 1 Before: Brown C Decision: Findings on facts and directions for filing conditions of consent (par 55) Catchwords: APPEALS: two separate but related appeals - order to cease the use of site for the purposes of an animal breeding or training establishment (Appeal No 10679 of 2013) - refusal of development application for the use of the site as an animal boarding or training establishment (Appeal No 10806 of 2013) - whether the breeding and keeping of dogs is carried out for commercial purposes or ancillary to the residential use of the site or whether appropriately categorised as an animal boarding or training establishment and if so, whether development consent should be granted. Legislation Cited: Environmental Planning and Assessment Act 1979 Wollondilly Local Environmental Plan 2011 Cases Cited: Hawkesbury Shire Council v Mitchell and Anor [1988] 64 LGRA 235 Tweed Shire Council v Litonia Pty Ltd [1993] NSWLEC144 Category: Principal judgment Parties: Peter Acers (Applicant) Wollondilly Shire Council (Respondent) Representation: Applicant in person (Applicant) Ms C Rose, solicitor (Respondent) - (Applicant) Maddocks Lawyers (Respondent) File Number(s): 10679 of 2013, 10806 of 2013

Judgment 1COMMISSIONER: These are two separate but related appeals in relation to the use of the property for keeping dogs at 275 Bargo Road Bargo (the site). 2Appeal No 10679 of 2013 is an appeal against Order Nos 1, 2 and 12 issued by the council on 30 August 2013 under s121B of the Environmental Planning and Assessment Act 1979 (the EPA Act) against the applicant. The Orders sought: To do what: 1. Cease the use of premises for the purposes of an animal breeding or training establishment as defined in the Wollondilly Local Environmental Plan (WLEP) 2011. 2. Remove all illegal dog kennels not approved. 3. Restore the premises to the state it was prior to the illegal works being carried out. Reasons for the Order; 1. Council's records indicate no approvals have been granted for this activity. Under the Wollondilly LEP 2011 animal boarding or training establishment means a building or place used for the breeding, boarding, training, keeping or caring of animals for commercial purposes (other than for the agistment of horses), and includes any associated riding school or ancillary veterinary hospital. 2. Building works have been carried out without Development approval 3Of the matters identified in "To do what" only Item 1 was considered at the hearing as the other matters are subject to a separate application with the council. 4Appeal No 10806 of 2013 is an appeal against the refusal by the council of Development Application 010/2013/35.001 for the use of the site as an "animal boarding or training establishment". The development application sought approval for ...the continued use of an animal boarding or training establishment involving the keeping, breeding and training of greyhounds with a maximum of 18 adult dogs (not including companion dogs and dogs less than six months of age). The improvements consist of: Ten holding pens (each 1.205m x 5.3m and separated by 50mm thick bonded panel walls) located adjacent to; Two grassed exercise yards with a combined area of 7.4m x 1 2.3m located adjacent to the existing holding pens on the site; Four small, grassed exercise yards (combined area of 7.7m x 7.1m and separated by 1.8m high chainwire fencing) located along the south eastern boundary of the site; Four large, grassed exercise yards (each 14.55m x 19.5m and separated by 1.8m high chainwire fencing) located along the south eastern boundary of the site; A large exercise yard located at the front south western corner of the site.