Lees and anor v Cessnock City Council [2011] NSWLEC 1098

Lees and anor v Cessnock City Council [2011] NSWLEC 1098

The Court was satisfied that the dwelling as modified remained substantially the same development as originally approved, the evidence demonstrated that the reduction in setback would have no perceivable or measurable odour impact justifying refusal, and that planning objectives are achieved notwithstanding the reduced setback. Compliance with the precise DCP setback was not determinative given merit-based assessment and uncontested expert evidence.

Parties
Applicant: Geoffrey Lees and Julie Radford; Respondent: Cessnock City Council
Jurisdiction
Australia
Judgment Date
02 May 2011
Procedural Posture
Appeal Against Refusal of Consent Modification / Final Judgment After Site Hearing and Written Submissions
Outcome
Appeal upheld
Legal Topics
Modification of Development Consent, Setbacks, Odour Assessment, Land Use Conflict, Development Control Plans, Appeals From Council Decisions
Planning Law Environmental Law Modification of Development Consent Setbacks Odour Assessment Land Use Conflict Development Control Plans Appeals From Council Decisions

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Parties

Geoffrey Lees and Julie Radford

Applicant

Cessnock City Council

Respondent

Procedural Posture

Appeal Against Refusal of Consent Modification / Final Judgment After Site Hearing and Written Submissions

Legal Issues

  1. 1 Whether development as modified is substantially the same as the approved development under s 96AA(3) of the Environmental Planning and Assessment Act 1979
  2. 2 Whether the reduced setback from poultry shed increases potential odour nuisance and land use conflict
  3. 3 Whether setting a precedent is a valid basis for refusal

Ratio Decidendi

The Court was satisfied that the dwelling as modified remained substantially the same development as originally approved, the evidence demonstrated that the reduction in setback would have no perceivable or measurable odour impact justifying refusal, and that planning objectives are achieved notwithstanding the reduced setback. Compliance with the precise DCP setback was not determinative given merit-based assessment and uncontested expert evidence.

Court Disposition

Appeal upheld

Orders

  • Appeal is upheld.
  • Application to modify the original development consent is approved: Condition 19 is replaced so that the dwelling must be no closer than 134.5 metres to the nearest poultry shed, 20 metres from the front boundary, and 1.5 metres from the northern dividing boundary.