Dungog Shire Council v Blackman

Land and Environment Court (NSW)|2024-09-26|Before: Robson J

Introduction

By notice of motion filed 3 September 2024, Cherilyne and Frederick Blackman, the respondents in these Class 4 proceedings commenced by Dungog Shire Council ('Council') on 15 July 2024 (by summons) seek orders that these proceedings be adjourned pursuant to s 9.46(3)(a) of the Environmental Planning and Assessment Act 1979 (NSW) ('Planning Act') pending determination of Class 1 appeal proceedings commenced by the respondents on 23 July 2024.
In the substantive proceedings, Council seeks declaratory and consequential injunctive relief in relation to the present use of the premises at 241 Fishers Hill Road, Fishers Hill ('site') by the respondents for the purpose of an "Animal Boarding and Training Establishment (Dog Breeding)".
For the reasons that follow, I find that it is appropriate to grant limited relief to the respondents conditional upon the Class 1 appeal proceedings being expedited and heard on 5 and 6 December 2024.

Evidence

The respondents read the affidavit of Cherilyne Blackman sworn 24 September 2024. Council reads the affidavit of Darren Kearns, the Coordinator Environmental and Regulatory Services at Council, sworn 18 September 2024. The Court received an extensive agreed bundle of documents into evidence, including Exhibit CB-2 to the affidavit of Ms Blackman and Exhibit DK1 to the affidavit of Mr Kearns.

Summary of evidence

For a number of years, Council has received complaints from local residents in relation to the use of the site that has operated for many years and appears, in a planning sense, to be unlawful. The objections of the local residents appear to be relatively orchestrated (in a non-pejorative sense) and has resulted in Council receiving numerous complaints both before and after the commencement of these Class 4 proceedings. There are strong feelings in the local community in relation to the dog breeding activities which are currently taking place on the site due primarily to noise impacts, which has resulted in Council receiving a petition on 17 October 2023 from local residents concerning the use of the site.

Background

The following background facts are mostly uncontroversial. Further facts will be recorded in my consideration of the parties' submissions.
The respondents have occupied the site for many years. Ms Blackman indicates that she has owned the property and used the site for dog breeding for approximately 27 years with the knowledge of Council.
As a result of concerns and complaints made to Council by local residents, Council issued a development control order ('stop use order') on 23 August 2022 to the respondents pursuant to s 124 of the Local Government Act 1993 (NSW) ('LG Act'). Noting that Council had undertaken an earlier inspection on the site on 22 November 2021 resulting in the respondents being issued with a notice of intention to issue a development control order.
On 5 July 2022, a follow-up inspection was undertaken, and a Council officer observed that approximately 200 Labrador dogs were on the site. The respondents' evidence is that, at present, there are 50 dogs on the site, and that the greater number of dogs at the earlier time was a result of a "greater demand for Labrador dogs during the COVID period".
As a result of the stop use order, the respondents took expert town planning advice from Perception Planning Pty Ltd and lodged a development application (DA 164/2022) on 14 September 2022 seeking use of the subject premises for "Animal Boarding and Training Establishment (Dog Breeding)" for up to 100 dogs.
On 17 May 2023, that development application, which had been recommended by Council's internal review for refusal, was withdrawn, and Council resolved to commence civil enforcement proceedings.
On 19 June 2023, in response to Council's pre-litigation correspondence, the respondents provided an undertaking to Council to reduce the number of dogs and to lodge a new development application to use the site for less intensive dog breeding.
On 31 August 2023, Perception Planning Pty Ltd (on behalf of the respondents) lodged a second development application for an "Animal Boarding and Training Establishment (Dog Breeding)" at the site for a maximum of 50 dogs (DA 128/2023). An expert noise report prepared by RAPT Consulting dated 24 July 2023 was also lodged with Council in support of the development application.
An inspection of the site by Council officers on 9 November 2023 confirmed that 200 dogs were present on the site.
At a meeting on 19 June 2024, Council resolved to refuse the second development application.
On 15 July 2024, Council commenced these Class 4 proceedings by way of summons seeking declaratory and consequential injunctive relief. On 23 July 2024, the respondents commenced Class 1 proceedings appealing against Council's refusal of development application 128/2023 from 19 June 2024.
A conciliation conference under s 34 of the Land and Environment Court Act 1979 (NSW) ('Court Act') is scheduled for 25 November 2024.

Respondents' position

The respondents' submit that, in all the circumstances, it would be appropriate to defer and adjourn the hearing of the Class 4 proceedings as the Class 1 proceedings have been set down for a conciliation conference under s 34 of the Court Act on 25 November 2024, and if the Class 1 proceedings are resolved, then there would be no utility in the continuation of the Class 4 proceedings. As such, the Court would be satisfied that it is appropriate to adjourn the Class 4 proceedings for the following reasons.
First, the site has been used for dog breeding for approximately 27 years.
Second, the noise from barking dogs, which is the gist of the local residents' concerns, has significantly reduced in recent times as the number of dogs has been reduced from over 200 dogs to 50 dogs and dog feeding times have also been reduced from two hours to one hour in the late afternoon.
Third, the development application the subject of the Class 1 appeal proceedings is accompanied by town planning and acoustic reports that conclude that the predicted noise of 50 dogs, with the noise attenuation structures proposed, is acceptable.
Fourth, the respondents' second development application is capable of approval as Council officers at an earlier stage supported the development application and recommended granting approval if the development application was limited to 50 dogs.
Fifth, there is public interest in the development application as the evidence shows that the respondents breed "superior Labrador dogs, which are used as guide dogs, assistance dogs for disabled persons, the sick, and the aged, as well as pets".
Sixth, it is undesirable for the parties to incur legal costs of preparing the Class 4 proceedings in circumstances where the Class 1 appeal proceedings are pending and may be determinative.

Council's position

Council's submissions that the Class 4 hearing should not be adjourned may be summarised as follows. First, the planning system should be adhered to in circumstances where there has been unlawful activity for a significant period of time.
Second, there are genuine concerns held by many local residents regarding the amenity impacts caused by the carrying out of the unregulated development on the site.
Third, the relief sought in the notice of motion will undoubtedly extend the period of time that impacts are suffered by local residents. Moreover, if the matter does not resolve at the conciliation conference on 25 November 2024, the Class 1 appeal will not proceed to hearing until sometime early next year, and it may well not be resolved and/or determined until mid-2025.
Fourth, the power under s 9.46 of the Planning Act is discretionary, and the respondents have been on notice of the need to obtain development approval for the current use of the site since 2021, and that delay is unexplained.
Fifth, Council does not accept that even though the evidence shows that 50 dogs are presently on the site, this is an appropriate interim response until the Class 1 appeal proceedings have resolved. Council's primary position is that the Class 4 proceedings should progress to determination.

Consideration

The principles to be considered in an application under s 9.46 of the Planning Act (which was previously s 124(3)) are well-known and have been frequently noted: Kenoss Pty Ltd v Palerang Council [2013] NSWCA 174 at [13]; Dungog Shire Council v Hunter Industrial Rental Equipment Pty Ltd [2016] NSWLEC 164; (2016) 220 LGERA 43 at [97]-[100]; Burwood Council v Iglesia Ni Cristo [2019] NSWLEC 75 at [20]-[23]; Bayside Council v Outdoor Systems Pty Ltd [2024] NSWLEC 1 at [46]-[47].
I consider that the matter is delicately balanced. Council has proper concerns given the nature of its statutory duties under both the Planning Act and the LG Act in circumstances where there has been significant and ongoing local resident concerns and the conduct on the site is, and has been for many years, unlawful.
I note that Ms Blackman refers to the respondents' 27 years of conduct on the site and says, in evidence which is unchallenged, that for many of those years, Council had knowledge of the conduct. Despite this, I note that the respondents have been on notice since 2021 that their conduct on the site has been and remains unlawful.
I also note that the respondents have, to date, lodged two development applications with Council. The more recent development application lodged 31 August 2023 (DA 128/2023) was originally recommended for approval, however, at a Council meeting on 17 April 2024, Council considered that the matter should be reviewed by independent planning consultants and deferred consideration of the development application. Although Council received a further internal report on 19 June 2024 recommending that the development application be approved, Council ultimately resolved to refuse the application.
The matter is set down for a conciliation conference on 25 November 2024. I am aware that the concerns expressed by local residents (and Council) relate primarily to noise impacts, and I note that the number of dogs has been reduced from 200 to 50. The circularity is that the development application currently under appeal provides for further structures (or enclosures) that seek to mitigate noise caused by the dogs. In those circumstances, it is not simply the reduction to 50 dogs on the site that could be seen to materially address the concerns of local residents, noting the concerns of local residents appear to have endured despite the reduction in the number of dogs.
I also note that, historically, the respondents have received two development control orders.
In the above circumstances, balancing the matters, in particular, that similar conduct has been undertaken on the site for over 20 years, and that an "Animal Boarding and Training Establishment (Dog Breeding)" is a permissible use in the zone (with development consent), I take some notice of the fact that any animal breeding and training establishment, particularly one involving dog breeding, would necessarily have some noise impact.
Doing the best I can, and balancing, as I must, the interests of the parties and the interests of justice, which includes the overriding purpose as described in s 56(1) of the Civil Procedure Act 2005 (NSW) ('CP Act'), and in accordance with the dictates of justice described in s 58 of the CP Act, I have taken into account the prejudice to each of the primary parties, and the interests otherwise of concerned local residents. I have also taken into account the fact that, as conceded by counsel for the respondents, there appears to be no primary defence to the declaratory relief sought in the Class 4 proceedings. This means that if the Class 4 proceedings are to be heard, on the basis that the respondents are not successful in this notice of motion, the sole matter before the Court would likely relate to the Court's exercise of its discretion in the application of the consequential mandatory injunctive relief sought by Council in the Class 4 proceedings. As such, a judge hearing the Class 4 proceedings will undoubtedly be interested, if not invested, in the result of the Class 1 appeal proceedings.
I also take into account Council's persuasive concern that, should the conciliation conference on 25 November 2024 not be successful, it is likely that the Class 1 appeal proceedings would not be otherwise determined until mid-2025.
Balancing those interests, it follows that I consider that limited relief should be granted to the respondents conditional upon their Class 1 appeal proceeding expeditiously. As such, I intend to order that the Class 1 appeal hearing be expedited and set down for hearing on 5 and 6 December 2024 (unless settled beforehand). I also confirm the date of the conciliation conference under s 34 of the Court Act on 25 November 2024, and otherwise stand the Class 4 proceedings over to be listed for mention before me on 10 December 2024 noting that that matter would now likely involve the exercise of discretion such that Council may otherwise be entitled to its primary declaratory relief.

Orders

The orders of the Court are: In proceedings 2024/00260465: 1. The Class 4 proceedings are adjourned until 7 days after the Court's determination of the Class 1 proceedings (2024/00270130). 2. The proceedings are listed for mention before Robson J on Tuesday, 10 December 2024 at 9.30am. In proceedings 2024/00270130: 1. The hearing of the Class 1 proceedings is expedited and will be heard on 5 and 6 December 2024 (unless the matter is resolved earlier). 2. The conciliation conference under s 34 of the Land and Environment Court Act 1979 (NSW) will proceed on 25 November 2024. 3. The parties are directed to confer forthwith and approach the Registrar to make appropriate directions (generally in accordance with the Practice Note - Class 1 Development Appeals) for the preparation and conduct of the matter for hearing on 5 and 6 December 2024. 4. Order (2) of orders made 26 August 2024 is vacated.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 October 2024

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