Shears v Parramatta City Council [2007] NSWLEC 677

Shears v Parramatta City Council [2007] NSWLEC 677

The proposed use was not characteristic of or ancillary to the use of the land as a dwelling house. On a suburban residential allotment adjoining seven residential properties, 78 sqm of lofts accommodating up to 200 pigeons, with exercising and management requirements, was beyond the keeping of birds in an aviary, as pets or as a hobby, and constituted a separate use not listed as permissible in the 2A Residential zone. The use was therefore prohibited and the development application had to be refused.

Jurisdiction
Australia
Judgment Date
18 October 2007
Procedural Posture
Appeal Against Refusal of a Development Application Under the Environmental Planning and Assessment Act 1979 / Judgment After Hearing
Outcome
Appeal dismissed; development application refused.
Legal Topics
['development Application' 'permissibility of Use' 'residential Zoning' 'ancillary Use' 'pigeon Lofts' 'residential Amenity']
['planning and Environment' 'local Government'] ['development Application' 'permissibility of Use' 'residential Zoning' 'ancillary Use' 'pigeon Lofts' 'residential Amenity']

Case Brief

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Procedural Posture

Appeal Against Refusal of a Development Application Under the Environmental Planning and Assessment Act 1979 / Judgment After Hearing

Legal Issues

  1. 1 ['Whether the proposed pigeon lofts for housing and training racing pigeons were permissible within the 2A Residential zone under Parramatta Local Environmental Plan 2001.' 'Whether the proposed use was characteristic of or ancillary to the use of the site as a dwelling house, or was a separate prohibited innominate use.' 'If permissible, whether the proposal would have unacceptable impacts on residential amenity from noise, smell, debris, vermin and tree removal.' 'Whether weight should be given to Parramatta Local Orders Policy (18) 2003 after its revocation.']

Ratio Decidendi

The proposed use was not characteristic of or ancillary to the use of the land as a dwelling house. On a suburban residential allotment adjoining seven residential properties, 78 sqm of lofts accommodating up to 200 pigeons, with exercising and management requirements, was beyond the keeping of birds in an aviary, as pets or as a hobby, and constituted a separate use not listed as permissible in the 2A Residential zone. The use was therefore prohibited and the development application had to be refused.

Court Disposition

Appeal dismissed; development application refused.

Orders

  • ['The appeal is dismissed.' 'The development application (DA 759/2006) for the construction of a stock and race loft for the housing and training of racing pigeons at 9 Todd Circle, Old Toongabbie is refused.' 'The exhibit, except exhibits 3 and E, may be returned.']