Kempsey Shire Council v Tebran Pty Limited [2007] NSWLEC 731

Kempsey Shire Council v Tebran Pty Limited [2007] NSWLEC 731

Agriculture under the LEP includes husbandry generally, and feedlot, intensive animal husbandry and aquaculture are types of agriculture. In zones 1(a1) and 1(a3), a feedlot that is not also intensive animal husbandry is permissible without development consent. On the agreed facts, Tebran's large rural parcels, stock rotation, substantial pasture feeding, absence of wholly non-grazing feeding, and limited supplementary feed bins did not have the character, nature and extent of intensive animal husbandry or a feedlot. The Council therefore failed to prove any breach of the LEP or s 76A(1) of the Environmental Planning and Assessment Act 1979.

Jurisdiction
Australia
Judgment Date
08 November 2007
Procedural Posture
Class 4 Civil Enforcement Proceedings / Judgment on Application for Declarations and Orders
Outcome
The Class 4 application was dismissed.
Legal Topics
['development Consent' 'construction of Environmental Planning Instruments' 'agriculture' 'intensive Animal Husbandry' 'feedlot' 'cattle Supplementary Feeding']
['planning and Environmental Law' 'local Government' 'civil Enforcement'] ['development Consent' 'construction of Environmental Planning Instruments' 'agriculture' 'intensive Animal Husbandry' 'feedlot' 'cattle Supplementary Feeding']

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Procedural Posture

Class 4 Civil Enforcement Proceedings / Judgment on Application for Declarations and Orders

Legal Issues

  1. 1 ['Whether Tebran\'s use of the Sutherlands Lane land and Back Creek Road land constituted development for the purpose of "intensive animal husbandry" requiring development consent under the Environmental Planning and Assessment Act 1979 and the Kempsey Local Environmental Plan 1987.' 'Whether Tebran\'s activities constituted a "feedlot" and, if so, whether that use was permissible without development consent as a form of agriculture in zones 1(a1) and 1(a3).' 'How the terms "agriculture", "feedlot" and "intensive animal husbandry" in the Kempsey Local Environmental Plan 1987 should be construed.']

Ratio Decidendi

Agriculture under the LEP includes husbandry generally, and feedlot, intensive animal husbandry and aquaculture are types of agriculture. In zones 1(a1) and 1(a3), a feedlot that is not also intensive animal husbandry is permissible without development consent. On the agreed facts, Tebran's large rural parcels, stock rotation, substantial pasture feeding, absence of wholly non-grazing feeding, and limited supplementary feed bins did not have the character, nature and extent of intensive animal husbandry or a feedlot. The Council therefore failed to prove any breach of the LEP or s 76A(1) of the Environmental Planning and Assessment Act 1979.

Court Disposition

The Class 4 application was dismissed.

Orders

  • ['The Class 4 application is dismissed.' "The applicant is to pay the respondent's costs as agreed or assessed." 'Order 2 is stayed for a period of 28 days during which the applicant may notify the Court if it wishes to be heard about costs, in which event Order 2 is set aside and the proceedings are to be listed...