Russell v Bega Valley Shire Council [2013] NSWLEC 1012

Russell v Bega Valley Shire Council [2013] NSWLEC 1012

Development consent had to be refused because the proposed scrap metal recycling facility would have unacceptable visual impacts and unacceptable noise impacts. The proposed fencing, earth mounding and vegetation were not a suitable response to the visual impact and were themselves visually discordant in the rural and rural/residential setting, making the proposal inconsistent with relevant zone objectives and cl 65 matters. The noise assessment was inadequate because it did not properly assess the likely future dwelling on adjoining Lot 101 and did not address cumulative noise from the existing earthworks operation, also making the proposal inconsistent with the relevant zone objective...

Jurisdiction
Australia
Judgment Date
23 January 2013
Procedural Posture
Class 1 Appeal Against Refusal of Development Application 2010.502 / Principal Judgment After on Site Hearing
Outcome
The appeal was dismissed and Development Application 2010.502 was refused.
Legal Topics
['development Application' 'scrap Metal Recycling Facility' 'visual Impact' 'noise Impact' 'environmental Impact' 'rural Zoning']
['planning and Environment Law'] ['development Application' 'scrap Metal Recycling Facility' 'visual Impact' 'noise Impact' 'environmental Impact' 'rural Zoning']

Case Brief

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Procedural Posture

Class 1 Appeal Against Refusal of Development Application 2010.502 / Principal Judgment After on Site Hearing

Legal Issues

  1. 1 ["Whether development consent should be granted for a scrap metal recycling facility, including erection of a shed, at 27 D'Arcy Lane, Jellat Jellat." "Whether the proposal's visual impacts were acceptable in the Rural 1(a)(General Rural Zone)." "Whether the proposal's noise impacts were acceptable, including having regard to a likely future dwelling on adjoining Lot 101 and cumulative noise from the existing earthmoving operation." 'Whether potential runoff and contaminants affecting nearby dams and protected wetlands had been adequately addressed.']

Ratio Decidendi

Development consent had to be refused because the proposed scrap metal recycling facility would have unacceptable visual impacts and unacceptable noise impacts. The proposed fencing, earth mounding and vegetation were not a suitable response to the visual impact and were themselves visually discordant in the rural and rural/residential setting, making the proposal inconsistent with relevant zone objectives and cl 65 matters. The noise assessment was inadequate because it did not properly assess the likely future dwelling on adjoining Lot 101 and did not address cumulative noise from the existing earthworks operation, also making the proposal inconsistent with the relevant zone objective...

Court Disposition

The appeal was dismissed and Development Application 2010.502 was refused.

Orders

  • ['The appeal is dismissed.' "Development Application 2010.502 for a scrap metal recycling facility, including the erection of a shed at 27 D'Arcy Lane, Jellat Jellat is refused." 'The exhibits are returned with the exception of exhibits 1 and A.']