McCuskey v Upper Lachlan Shire Council [2016] NSWLEC 1323

Land and Environment Court New South Wales

Medium Neutral Citation: McCuskey v Upper Lachlan Shire Council [2016] NSWLEC 1323 Hearing dates: 27, 28, 29 and 30 June 2016 Date of orders: 09 August 2016 Decision date: 09 August 2016 Jurisdiction: Class 1 Before: Dixon C Decision: The Court orders: (1) The appeal is dismissed. (2) The exhibits are returned. Catchwords: APPEAL: Development application for a motocross facility on rural land – compatibility of use with adjoining agricultural use – acoustic impacts Legislation Cited: Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

State Environmental Planning Policy (Rural Lands) 2008

Upper Lachlan Local Environmental Plan 2010

Upper Lachlan Development Control Plan 2010 Cases Cited: Telstra v Hornsby shire Council (2006) 146 LGERA 10

BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399 Category: Principal judgment Parties: Shannon McCuskey (Applicant) Upper Lachlan Shire Council (Respondent) Representation: Counsel: Mr Phillip Clay SC (Applicant) Mr Stephen Griffiths (solicitor)(Respondent)

Solicitors: Bradley Allen Love Lawyers (Applicant) Pikes & Verekers Lawyers (Respondent) File Number(s): 2016/00166500

Judgment 1. Shannon McCuskey has appealed from the Council's refusal of his development application (DA 84/2014) for the construction of a motocross recreation facility on rural land at 111 Lade Vale Road, Gunning (the Site). 2. The appeal is brought pursuant to s97 (1) of the Environmental Planning and Assessment Act 1997 (EPA Act), and was the subject of a conciliation conference under s34 of the Land and Environment Court Act 1979 (the Court Act). As agreement was not reached during the conciliation phase of the conference the parties requested that I terminate that process and determine the appeal after a further hearing pursuant to s34 (4) (b). 3. Before the conference was terminated the applicant was granted leave to rely upon an amended application that reduced the size of the facility and removed the proposed permanent structures (Exhibit A). He also agreed, in the event of that consent, to accept as condition of such consent that he enter into a voluntary planning agreement (VPA) with the Office of Environment and Heritage (OEH) for the conservation and protection of the conservation areas on the site. While the amended application and proposed VPA had the effect of narrowing the issues between the parties, it did not overcome the Council's objection to the development on other grounds. Those grounds raised the following issues: 1. whether the development is suitable for the site, having regard to the relevant provisions of the Upper Lachlan Local Environmental Plan 2010; 2. whether the acoustic impacts generated by of the development, particularly upon the surrounding rural properties, are acceptable; 3. whether consent to the development is in the public interest?