Australia, April 14 -- New South Wales Land and Environment Court issued text of the following judgement on March 18:

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of Development Application DA-797/2020 seeking consent for the change of use from residential dwelling to 'animal boarding or training establishments', the use of modified shipping containers to construct a staff room, storage rooms, sixteen (16) freestanding dog kennel modules, new driveways, foot traffic path ways, provision of new onsite car parking area with 35 car spaces, new on-site sewer management system and drainage, earthworks, and a series of associated retaining and acoustic walls (Proposed Development) at 25 May Avenue, Rossmore legally described as Lot 24 in DP 2217 (the Site).

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 25 February 2025, being the same day that the proceedings were listed to commence for hearing. I presided over the conciliation conference and at the conclusion the hearing was vacated.

3. The parties agree that all Contentions raised in the Statement of Facts and Contentions filed by the Respondent on 23 January 2024 (SOFAC) have been resolved by the preparation of the amended plans and documents referred to at [45] and agreed conditions of consent at Annexure A.

4. 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. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions.

5. 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. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

6. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

7. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be the relevant provisions of the Liverpool Local Environmental Plan 2008 (LLEP), State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP), and the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP). The parties explained how the jurisdictional prerequisites have been satisfied.

8. The Applicant is the owner of the Site, and, as the landowner, provided consent to the Development Application when it was lodged. The Development Application was lodged on 24 September 2020 and a Notice of Determination dated 20 June 2023 was issued by the Respondent refusing consent. The Class 1 Appeal was filed on 11 December 2023.

9. The Site is zoned RU4 - Primary Production Small Lots pursuant to the LLEP where the Proposed Development is permissible with consent, namely an 'animal boarding and training establishment' which is defined in the LLEP as follows:

animal boarding or training establishment means a building or place used for the breeding, boarding, training, keeping or caring of animals for commercial purposes (other than for the agistment of horses), and includes any associated riding school or ancillary veterinary hospital.

10. The Development Application was notified in accordance with the Respondents Community Engagement Strategy 2019 between 23 October 2020 to 6 November 2020. Three (3) submissions were received during the notification period. The Respondent had previously filed a List of Objectors on 28 August 2024 and no objectors had registered to make oral submissions for the hearing listed 25 February 2025. The Respondent confirms that all objectors that made a submission in the proceedings have been notified that the parties intend to resolve the matter by way of an agreement pursuant to s 34 of the LEC Act and that the matter will no longer be proceeding to a contested hearing. The issues originally raised by objectors relate to odour and noise management as well as flood planning and impacts on South Creek. The parties agree that all concerns raised by objectors have been considered and appropriately addressed.

*Rest of the document and Footnotes can be viewed at: (https://www.caselaw.nsw.gov.au/decision/195926cd45c4dc42c6ea19e7)

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