Blackman v Dungog Shire Council [2024] NSWLEC 1792

Blackman v Dungog Shire Council [2024] NSWLEC 1792

The evidence does not establish that the development will avoid generating offensive noise as defined under the Protection of the Environment Operations Act 1997, nor that the Noise Impact Assessment is conservative or that the Noise Plan of Management is adequate. Further, the Court cannot be satisfied that the proposed fencing will blend into the landscape as required by cl 6.12(3) of the Dungog Local Environmental Plan 2014, precluding approval of the development application.

Parties
First Applicant: Cherilyne Blackman; Second Applicant: Frederick Blackman; Respondent: Dungog Shire Council
Jurisdiction
Australia
Judgment Date
09 December 2024
Procedural Posture
Class 1 Appeal Under S 8.7 Environmental Planning and Assessment Act 1979 / Final Hearing; Post Conciliation Conference and Evidence
Outcome
Appeal dismissed; development application refused.
Legal Topics
Development Application, Dog Breeding Establishment, Noise Amenity, Visual Amenity, Rural Landscape Protection
Planning and Environment Law Development Application Dog Breeding Establishment Noise Amenity Visual Amenity Rural Landscape Protection

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Parties

Cherilyne Blackman

First Applicant

Frederick Blackman

Second Applicant

Dungog Shire Council

Respondent

Procedural Posture

Class 1 Appeal Under S 8.7 Environmental Planning and Assessment Act 1979 / Final Hearing; Post Conciliation Conference and Evidence

Legal Issues

  1. 1 Whether the proposed development will generate offensive noise as defined under the Protection of the Environment Operations Act 1997
  2. 2 Whether the Noise Impact Assessment and Noise Plan of Management are adequate
  3. 3 Whether the proposed acoustic fencing satisfies cl 6.12(3) of Dungog Local Environmental Plan 2014 (DLEP) regarding blending into landscape

Ratio Decidendi

The evidence does not establish that the development will avoid generating offensive noise as defined under the Protection of the Environment Operations Act 1997, nor that the Noise Impact Assessment is conservative or that the Noise Plan of Management is adequate. Further, the Court cannot be satisfied that the proposed fencing will blend into the landscape as required by cl 6.12(3) of the Dungog Local Environmental Plan 2014, precluding approval of the development application.

Court Disposition

Appeal dismissed; development application refused.

Orders

  • The appeal is dismissed.
  • Development Application No. DA 128/2023 for a boarding or training establishment comprising 28 breeding dogs at 241 Fishers Hill Road, Fishers Hill is determined by way of refusal.