Calvert de Witt & Taylor v Dungog Council [2004] NSWLEC 491

Calvert de Witt & Taylor v Dungog Council [2004] NSWLEC 491

Although there was a strong likelihood that the draft LEP would be adopted, it was not given sufficient weight to override the current LEP controls because the proposal was permissible under the current LEP, NSW Agriculture raised no objection, the single lot was unlikely to encourage dispersed development, and council had recently approved similar concessional lots. The Court was also not satisfied that the nearby sawdust storage would impact future residential use, given the disputed legality of that use, lack of evidence of continuing chicken litter storage, and evidence of no particular problems experienced by a nearby resident.

Jurisdiction
Australia
Judgment Date
26 August 2004
Procedural Posture
Appeal Against Refusal of Development Application for Subdivision / Ex Tempore Judgment After Hearing
Outcome
Appeal upheld; development application approved subject to conditions.
Legal Topics
['development Application' 'subdivision' 'concessional Lot' 'draft Local Environmental Plan' 'buffer Zones' 'bulk Store' 'sawdust Storage']
['environmental Planning and Assessment' 'local Government'] ['development Application' 'subdivision' 'concessional Lot' 'draft Local Environmental Plan' 'buffer Zones' 'bulk Store' 'sawdust Storage']

Case Brief

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Procedural Posture

Appeal Against Refusal of Development Application for Subdivision / Ex Tempore Judgment After Hearing

Legal Issues

  1. 1 ['Whether sufficient weight should be given to draft Dungog Local Environmental Plan 2003 to warrant refusal of the development application.' 'Whether the proximity of the proposed lot to a bulk store used for stockpiling sawdust and possibly other materials warranted refusal because of potential odour impacts and buffer requirements.']

Ratio Decidendi

Although there was a strong likelihood that the draft LEP would be adopted, it was not given sufficient weight to override the current LEP controls because the proposal was permissible under the current LEP, NSW Agriculture raised no objection, the single lot was unlikely to encourage dispersed development, and council had recently approved similar concessional lots. The Court was also not satisfied that the nearby sawdust storage would impact future residential use, given the disputed legality of that use, lack of evidence of continuing chicken litter storage, and evidence of no particular problems experienced by a nearby resident.

Court Disposition

Appeal upheld; development application approved subject to conditions.

Orders

  • ['The appeal is upheld.' "Development application No 245/03 for the subdivision of Lot B in DP 406291 Chichester Dam road, Bandon Grove is approved subject to conditions as set out in Annexure 'A'." 'The exhibits are retained with the exception of exhibit 1.']