DAVID MURDEN and EVA MURDEN v. PORT STEPHENS SHIRE COUNCIL [1998] NSWLEC 222 (18 September 1998) [1998] NSWLEC 64

DAVID MURDEN and EVA MURDEN v. PORT STEPHENS SHIRE COUNCIL [1998] NSWLEC 222 (18 September 1998) [1998] NSWLEC 64

The Court allowed the appeal and granted development consent because, notwithstanding neighbours' understandable concerns, the evidence showed that odour, noise, health and other impacts of the poultry farm were likely to be within acceptable limits if stringent consent conditions were imposed, including vertically venting stacks for odour control, implementation of the farm operational plan, noise controls, waste and dead bird disposal controls, and relocation of the turning and parking area within the 1(c1) zone.

Jurisdiction
Australia
Judgment Date
18 September 1998
Procedural Posture
Class 1 Proceedings; Appeal Against Refusal of Development Application / Judgment After Hearing
Outcome
Appeal allowed; development consent granted subject to conditions; no order as to costs.
Legal Topics
['development Application' 'designated Development' 'poultry Farm' 'odour Impacts' 'noise Impacts' 'health Concerns' 'zoning' 'conditions of Consent' 'farm Operational Plan']
['environmental Planning and Assessment' 'land Use Planning'] ['development Application' 'designated Development' 'poultry Farm' 'odour Impacts' 'noise Impacts' 'health Concerns' 'zoning' 'conditions of Consent' 'farm Operational Plan']

Case Brief

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Procedural Posture

Class 1 Proceedings; Appeal Against Refusal of Development Application / Judgment After Hearing

Legal Issues

  1. 1 ['Whether the proposed development is consistent with the objectives of the 1(c1) zone under the Port Stephens Local Environmental Plan 1997.' 'Whether the proposed development has an adverse impact on the environment, in particular dwelling houses and other land uses in the locality.' 'Whether the means proposed in the application to mitigate adverse environmental impacts are sufficient.' 'Whether the siting of the proposed sheds on the site is appropriate in the circumstances.' 'Whether the proposed development adversely impacts on adjoining land.' 'Whether the proposed development adequately addresses representations of the Environmental Protection Authority and the Department of Agriculture.' 'Whether the proposed development has an adverse effect on neighbourhood amenity, in particular odour impacts, health risks, dust, traffic, drainage, stormwater and noise.' 'Whether the proposed development complies with the New South Wales Department of Agriculture Poultry Farming Guidelines.' "Whether the proposed development complies with Port Stephens Council's code for the Erection of Broiler Sheds."]

Ratio Decidendi

The Court allowed the appeal and granted development consent because, notwithstanding neighbours' understandable concerns, the evidence showed that odour, noise, health and other impacts of the poultry farm were likely to be within acceptable limits if stringent consent conditions were imposed, including vertically venting stacks for odour control, implementation of the farm operational plan, noise controls, waste and dead bird disposal controls, and relocation of the turning and parking area within the 1(c1) zone.

Court Disposition

Appeal allowed; development consent granted subject to conditions; no order as to costs.

Orders

  • ['The appeal is allowed.' 'Development Application E1917/94 is determined by the granting of consent on the conditions set forth in Annexure "A" to this judgment.' 'The exhibits may be returned.' 'No order as to costs.']