Wunsch v Ballina Shire Council

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 289(1) of the Protection of the Environment Operations Act 1997 (NSW) (POEO Act) against a Prevention Notice dated 13 March 2025 (the original Direction), issued by Ballina Shire Council (the Council) to the Applicants, in relation to the premises at 737 Uralba Road, Lynwood (the site).

2. The activity to which the original Direction related was to the keeping of roosters on the site. The Respondent asserted that the roosters were not being kept in an environmentally satisfactory manner because they were committing offensive noise. The original Direction required the Applicants to take certain steps that the Respondent asserted were required to ensure that the keeping of roosters would be undertaken in an environmentally satisfactory manner.

3. A person issued with a Direction under s 96(2) of the POEO Act has a right of appeal to the Land and Environment Court (s 289(1) of the POEO Act). On appeal, the Court has the power of the Respondent to hear and dispose of the subject matter of the appeal.

4. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (NSW) between the parties, which was held on 18 July 2025. I presided over the conciliation conference. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.

5. The parties agreed on the form of a varied Direction (Annexure A). The varied Direction requires the Applicants to take certain action to address the keeping of roosters on the site. That action includes lodging a development application with the Respondent to carry out work that will mitigate noise on the site as perceived in surrounding residences. The work that is the subject of the development application is permissible in the RU1 Primary Production zone under the Ballina Local Environmental Plan 2012. The keeping of poultry (including the roosters) is incidental to the use of the site for residential purposes (a dwelling house). Use of the site for the purpose of a dwelling house requires consent. As the works (construction) required by the varied Direction is not exempt development, the works require consent. The varied Direction requires a development application to be lodged with the Respondent.

6. The varied Direction also requires ongoing compliance with an Animal Management Plan (Annexure B). That requirement is consistent with the power under s 96(2) of the POEO Act to direct the recipient of the varied Direction "to take such action, as is specified in the notice".

7. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. I am satisfied that the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the function to determine the appeal under s 292(1) of the Protection of the Environment Operations Act 1997 (NSW).

Orders

8. The orders of the Court are:

9. The appeal is upheld.

10. Pursuant to s 292 of the Protection of the Environment Operations Act 1997 (NSW), the Prevention Notice dated 13 March 2025 issued by the Respondent to the Applicants, in relation to premises at 737 Uralba Road, Lynwood, is varied in the form at Annexure A.

Susan O’Neill

Commissioner of the Court

Annexure A (214 KB, pdf)

Annexure A to Annexure A (441 KB, pdf)

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Amendments

28 August 2025

Removed Annexure B as it is not to be published

29 August 2025

Correction to Annexures