Acers v Wollondilly Shire Council

[2014] NSWLEC 1169

Land and Environment Court

New South Wales

Medium Neutral Citation:	Acers v Wollondilly Shire Council [2014] NSWLEC 1169
Hearing dates:	21 May 2014
Decision date:	19 June 2014
Jurisdiction:	Class 1
Before:	Brown C
Decision:	Findings on facts and directions for filing conditions of consent (par 55)
Catchwords:	APPEALS: two separate but related appeals - order to cease the use of site for the purposes of an animal breeding or training establishment (Appeal No 10679 of 2013) - refusal of development application for the use of the site as an animal boarding or training establishment (Appeal No 10806 of 2013) - whether the breeding and keeping of dogs is carried out for commercial purposes or ancillary to the residential use of the site or whether appropriately categorised as an animal boarding or training establishment and if so, whether development consent should be granted.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Wollondilly Local Environmental Plan 2011
Cases Cited:	Hawkesbury Shire Council v Mitchell and Anor [1988] 64 LGRA 235 Tweed Shire Council v Litonia Pty Ltd [1993] NSWLEC144
Category:	Principal judgment
Parties:	Peter Acers (Applicant) Wollondilly Shire Council (Respondent)
Representation:	Applicant in person (Applicant) Ms C Rose, solicitor (Respondent) - (Applicant) Maddocks Lawyers (Respondent)
File Number(s):	10679 of 2013, 10806 of 2013

Judgment

1. COMMISSIONER: These are two separate but related appeals in relation to the use of the property for keeping dogs at 275 Bargo Road Bargo (the site).

1. Appeal No 10679 of 2013 is an appeal against Order Nos 1, 2 and 12 issued by the council on 30 August 2013 under s121B of the Environmental Planning and Assessment Act 1979 (the EPA Act) against the applicant. The Orders sought:

To do what:

1. Cease the use of premises for the purposes of an animal breeding or training establishment as defined in the Wollondilly Local Environmental Plan (WLEP) 2011.

2. Remove all illegal dog kennels not approved.

3. Restore the premises to the state it was prior to the illegal works being carried out.

Reasons for the Order;

1. Council's records indicate no approvals have been granted for this activity. Under the Wollondilly LEP 2011 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.

2. Building works have been carried out without Development approval

1. Of the matters identified in "To do what" only Item 1 was considered at the hearing as the other matters are subject to a separate application with the council.

1. Appeal No 10806 of 2013 is an appeal against the refusal by the council of Development Application 010/2013/35.001 for the use of the site as an "animal boarding or training establishment". The development application sought approval for

...the continued use of an animal boarding or training establishment involving the keeping, breeding and training of greyhounds with a maximum of 18 adult dogs (not including companion dogs and dogs less than six months of age).

The improvements consist of:

Ten holding pens (each 1.205m x 5.3m and separated by 50mm thick bonded panel walls) located adjacent to;

Two grassed exercise yards with a combined area of 7.4m x 1 2.3m located adjacent to the existing holding pens on the site;

Four small, grassed exercise yards (combined area of 7.7m x 7.1m and separated by 1.8m high chainwire fencing) located along the south eastern boundary of the site;

Four large, grassed exercise yards (each 14.55m x 19.5m and separated by 1.8m high chainwire fencing) located along the south eastern boundary of the site;

A large exercise yard located at the front south western corner of the site.

The site

1. The site is described as Lot 1012 in DP1067313. It is an L-shaped lot and has an area of 3.546ha with a frontage of 104.1m to Bargo Road. It is located within the rural part of the Wollondilly local government area.

1. The site has a gentle fall from Bargo Road towards the rear. A depression in the land follows the fall to the west and terminates in a man-made dam at the rear of the property. The rear boundary appears as a row of mature native trees. There is some vegetation at the front of the property however the majority of the land has been cleared as a consequence of past rural activities.

1. Existing development consists of a single storey dwelling house and the dog kennels and runs.

The relevant planning controls

1. The site is within Zone RU1 Primary Production under Wollondilly Local Environmental Plan 2011 (LEP 2011). The zone objectives are:

· To encourage sustainable primary industry production by maintaining and enhancing the natural resource base.

· To encourage diversity in primary industry enterprises and systems appropriate for the area.

· To minimise the fragmentation and alienation of resource lands.

· To minimise conflict between land uses within this zone and land uses within adjoining zones.

· To provide for a range of land uses (including tourism-related uses) that support the agriculture industry.

· To provide areas within which the density of development is limited in order to maintain a separation between urban areas.

1. Clause 2.3(2) states:

(2) The consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone.

1. "Animal boarding or training establishments" are permissible with consent in this zone. The Dictionary to LEP 2011 contains the following definition:

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.

1. Wollondilly Development Control Plan 2011 - Volume 2- Primary Agricultural and Rural uses (the DCP) applies to the site.

The dispute

1. While the two appeals were filed in relation to the use of the site as an animal boarding or training establishment, Mr Acers now maintains that the use of the site is not appropriately characterised as an animal boarding or training establishment but is more simply described as a hobby, for which development consent is not required.

1. Ms Rose, for the council, did not accept Mr Acers position that the use of the site was a hobby and not an animal boarding or training establishment but helpfully identified the different scenarios that the Court would need to address in relation to the appeals based on the different approaches adopted by the parties. These are:

1. Is the use of the site for breeding and keeping dogs not "for commercial purposes" (or hobby, as described by Mr Acers) and therefore not characterised as an animal boarding or training establishment? If so, development consent is not required and both appeals are irrelevant.

2. Is the use of the site for breeding and keeping dogs ancillary to the dominant purpose of the site as residential accommodation? If so, development consent may not be required and both appeals may be irrelevant.

3. Is the use of the site for breeding and keeping dogs characterised as an animal boarding or training establishment? If so, should development consent be granted.

The activities on the site

1. Mr Acers and Ms Powell reside at the site. Mr Acers has full-time employment and operates a carpet cleaning business. Ms Powell is currently unemployed but usually works as receptionist or veterinary nurse. Both are registered trainers with Greyhound Racing NSW and have been involved with greyhounds for a considerable time. Ms Powell carries out a larger portion of the work associated with the dogs on site. They have resided on the site since around November 2009.

1. Ms Powell provided a statement that detailed the activities on site which includes:

• no training is undertaken on the site.
• around 12 dogs are kept on site (excluding pups) however generally only 5 dogs race with the remainder being retired companion dogs which range in age from 41/2 to 10 years old,
• dogs are contained in two areas. The first is a 10 in 1 kennel block on a concrete slab and constructed of sandwich material, which is highly insulated and easy to clean. These kennels house one dog per kennel. The second area is four exercise yards containing a large garden shed in each. These yards are used to house pups. There is generally two pups in each yard however only 3 yards are in use at any one time to allow one yard to recover. The pups are in these yards until they are around 12-14 months of age, if not sold beforehand.
• the hours of operation vary, depending on whether dogs are racing or being taken off site for training.
• the daily maintenance involves kennels being swept and mopped, water topped up and beds inspected. All droppings are picked up from exercise yards and properly disposed of. Sprinklers may be put on in exercise yards, if necessary.
• the weekly maintenance involves all kennels being completely cleaned and washed down with environmentally friendly and biodegradable disinfectant. Water bowls are scrubbed and clean water provided.
• meat is delivered fortnightly and stored in a large freezer under cover at the rear of the house together with other food. All meals are made up at the house.
• in summer dogs are fed around 3:30pm depending on the heat and in winter dogs are fed around 2:30pm.
• in relation to breeding, a maximum of 2 litters per year is usual with up to 6 pups per litter however no litters were produced during 2013. There are no registered stud dogs on the site and the brood bitches are artificially or naturally inseminated off site. At around 6 weeks into their pregnancy, dogs are vaccinated and are moved to the whelping room at about 71/2 weeks. This room is located in the laundry of the house and has a portable air conditioner and heating. Once the pups are born they are kept with their mother in the whelping room up to about 6 weeks old. Pups are vaccinated at 6 weeks and put into a temporary yard near the house during the day, and returned to the whelping room at night. Pups are then put into the pup yard until they are 12 weeks old after they are fully vaccinated, ear branded and micro chipped. The pups are then split up and put them into the 4 exercise yards where they remain until around 12-14 months old or are sold beforehand. Pups are usually sold through the annual Dapto or Richmond Puppy Auction.

1. Mr Acers also provided correspondence from:

• the Chief Executive of Greyhound Racing NSW stating that Ms Powell is currently registered as a "hobbyist" with the Greyhound Racing NSW.
• Luddenham Pet Meats stating that Ms Powell purchases around $1200 of pet meat a month from this establishment and has done so since 2008 at the site and at a previous address.
• veterinary invoices around $1800 for one dog.

Is the use of the site for breeding and keeping dogs "for commercial purposes"?

Evidence

1. Mr Acers stated that the activities on the site associated with the dogs are not for "for commercial purposes" but are a hobby because Ms Powell:

• does not have an ABN,
• is not registered for GST and does not lodge a BAS,
• pays greyhound expenses that are not tax deductible,
• has spent more money on greyhounds than any prize money earned in each of the last 4 years (at least),
• does not operate, or intend to operate, a greyhound related business,
• does not intend to, and has no reasonable expectation of, earning a profit from her activities, and
• conducts her activities as a private hobby.

1. Ms Gordon, the councils town planner, states that the suggestion that only 11% of the property is used for the proposed use is incorrect based on the plans submitted originally with the application. In her assessment, the use occupies approximately 1.92ha or 54% of the site based on the areas of the two identified exercise yards (front and rear north-western portion of property) and the area occupied by the 10 in 1 kennel and the 4 exercise yards. In her opinion, the maintenance of the dogs involves both of the occupants of the premises, requires someone to be on the premises every night, involves significant expenditure, results in money being generated (by prize money and from pup sales) and a involves significant amount of time from the operators. As such, the scale and expense involved in the use, together with the amount of land occupied for the use would leads Ms Gordon to conclude that the use is not what most people would consider simply a hobby, but extends beyond a hobby.

1. Council's file contains a significant history of noise complaints related to the use, which goes to the scale of the use and the ability of the operators to contain the impacts of the use within the premises.

1. Ms Gordon notes that the information from the Australian Taxation Office attached to the applicant's Statement of Facts and Contentions in Reply indicates that a use is often considered to be a hobby when there is no repetition or regularity of sales and any produce is sold to friends and relative and not the public at large. There appears to be an intention for regularity of sales in this case, with an intention to breed 2 litters a year. Further, pups bred on the site are sold to the general public at puppy auctions.

1. Ms Gordon further notes that a commercial use does not need to make a profit and as such, whether a profit is made is not a relevant consideration as to whether the use is a hobby or a commercial purpose. Further, an ABN is not required to run a business dependent upon the earnings of the business.

Findings

1. There was no dispute that the activities on the site associated with the dogs could be regarded as "a building or place used for the "breeding,..., keeping or caring of animals". The dispute between the parties was whether these activities were "for commercial purposes". While the word "hobby" was used regularly in the proceedings, the test is whether the "breeding,... keeping or caring of animals" is for commercial purposes not whether it is a hobby. While there may be some similar characteristics; the difference in the words must be recognised.

1. Unfortunately, the words "commercial purposes" are not defined in LEP 2011. The Macquarie Dictionary (Second Edition) however relevantly defines "commercial" as:

3. capable of returning a profit: a commercial project.

1. In considering whether the activities on site are for commercial purposes, I accept that only the greyhounds participating in racing should be considered. The sale of pups should also be considered. While it is not without some doubt and if a conservative approach is adopted, I accept that it can reasonably be argued that it is likely that the activities on the site are conducted for "commercial purposes" for a number of reasons. First, the definition of "commercial" does not require actual profit to be made but only that the operation is "capable" of returning a profit.

1. Second, and even though Ms Powell stated (and there was no evidence to the contrary) that she has spent more on the greyhounds than any prize money earned over at the least the last 4 years, the potential exists for this to change if a talented dog wins a race with significant prize money. While there are undoubted vagaries in breeding or purchasing such a dog, the potential still exists for this to occur. If I accept the approach of Mr Acers that it is a hobby if there is no profit made, a significant practical problem occurs in ensuring that the activities do not achieve a profit. Continual monitoring of expenses and income would be required by Mr Acers and Ms Powell, as would continual monitoring by the council to ensure there was no profit achieved from the racing and selling of dogs.

1. Third, the range of documents relied upon by Mr Acers to support his position that the operation is a hobby, relate exclusively to the classification of the activities for tax purposes or classification of land. This context is different to the classification of the activities under LEP 2011, and as such these documents cannot be relied upon.

1. Fourth, and in respect to the evidence of Ms Gordon, I am not satisfied that the reference to the amount of land used for the activities is necessarily a definitive indicator of whether the activities are for "commercial purposes" although I accept that it goes to the intensity and activity on the site. I do not however accept that because complaints may have been received over noise, that this somehow establishes that the activities are for "commercial purposes".

1. For these reasons, I find that the activities on the site are for "commercial purposes" and as such development consent is required.

Is the use of the site for breeding and keeping dogs ancillary to the dominant purpose of the site as residential accommodation?

1. This matter was not specifically addressed by Mr Acers however I accept the submissions of Ms Rose that the use of the site for breeding and keeping dogs is not ancillary to the dominant purpose of the site as residential accommodation based on the comments in the following judgments that establish that it is possible to operate as a hobby but still not be ancillary to the dominant purpose of the site as residential accommodation.

1. In Hawkesbury Shire Council v Mitchell and Anor [1988] 64 LGRA 235 at 238, Stein J makes the following relevant comments:

So understood I regard the keeping of a significant number of dogs in various runs or pens on the land, the importation of their feed, as well as the importation of frozen sperm for breeding purposes and sale of litters from time to time, to be sufficient to satisfy the statutory definition In so concluding I reject the submission based on Foodbarn Ptv Ltd v Solicitor General (1975) 32 LGRA 157 that the use is ancillary to and subsumed into the dwelling house use. In my opinion the land is used for two distinct purposes neither of which is subservient to the other. Further. I do not accept that because the use is a hobby of the owners and essentially non commercial in character, it cannot qualify within the definition.

1. This approach was followed in Tweed Shire Council v Litonia Pty Ltd [1993] NSWLEC144, where Pearlman CJ considered the keeping of guinea fowls as a hobby and concluded that this activity was not an ancillary use or incidental to the use of the land as a dwelling. Her Honour found that:

The application of that principle is one of fact and degree (per Gibbs CJ in Lizzio and Anor v Ryde Municipal Council [1983] 51 LGRA 114 at 170) and an activity may qualify as an independent purpose notwithstanding that it is a hobby of the owners and essentially non commercial in character (per Stein J in Hawkesbury Shire Council v Mitchell and Anor [1988] 64 LGRA 235 at 238).

1. The authorities establish that it is possible to have a hobby that is non-commercial in nature but still be an independent use and consequently may require development consent. The question of whether this scenario is appropriate is a matter of fact and degree. In Mitchell, Stein J held that keeping of 10 dogs was a 'significant number of dogs' and not an ancillary to and subsumed into the dwelling house use. His Honour held that the land was used for two distinct purposes and that neither use was subservient to the other. These activities are similar to those described in Mitchell, with the exception of breeding.

1. On this basis, I find that the activities on site are not ancillary to the dominant purpose of the site as residential accommodation.

Should development consent be granted?

1. The council identified the following contentions in relation to the development application:

1. noise,

2. management of wastewater and stormwater,

3. animal welfare, and

4. rural character and amenity.

1. Ms Gordon provided evidence on the council's contentions however the council did not file any draft conditions of consent because of the position adopted by Mr Acers that development consent was not required. It was agreed that if development consent was to be granted then additional time would be required for the council to prepare the conditions and serve them on Mr Acers. If there were no issues with the conditions, then final orders could be made in chambers. Alternatively, if there was any dispute then further time would be required for the Court to address the disputed conditions.

Noise

1. No expert acoustic evidence was provided on this issue although two separate Noise Impact Assessments (SLR Consulting, April 2011 and SLR Consulting, May 2012) were prepared for Mr Acers to accompany the development application when submitted to the council. These reports were contained in the council's bundle of documents.

1. The 2011 SLR Report concluded that:

SLR Consulting has conducted an environmental noise impact assessment for the operation of the Greyhound boarding facility at 275 Bargo Road, Bargo. The predictions of noise impact have been carried out and compliances to the NSW Industrial Noise Policy assessment periods have been achieved and justified.

In addition the noise measurements carried out on site, site observations and the associated assessment indicate that the operation the site is unlikely to adversely impact upon the acoustical amenity at surrounding residential properties

1. In response to a request for further information, SLR Consulting provided further information on 12 December 2011, including a further option (Option 2) that relocated the kennels and exercise yard further to the rear of the site although there was no suggestion that noise impacts would be unacceptable under the 2011 SLR Report.

1. The 2012 SLR Report concluded that:

SLR Consulting conducted a Noise Impact Assessment of the existing Greyhound Boarding Facility located at 275 Bargo Road, Bargo. The assessment included acoustical measurements to characterise the ambient noise environment of the area, establishment of noise criteria, and a comparison of predicted noise levels with regard to recommended guidelines presented by the NSW Industrial Noise Policy.

The operational noise from the site, which includes the outdoor activities was assessed against the relevant criteria and an exceedance of up to 18 dBA is predicted during daytime period with the usage of outdoor areas. With the implementation of the aforementioned recommendations, the operational noise levels from the boarding facility is believed to comply with the stipulated noise criteria at the nearest affected receiver locations.

1. The development application was reported to the council on 17 June 2013 with a recommendation for approval. The issue of noise was addressed in the report (at p 27) in the following manner:

(a) A noise assessment report has been submitted and reviewed by council staff. A number of recommendations have been made by both the report and staff and conditions are recommended accordingly. It is considered that, subject to conditions, the development would not have an unacceptable impact on surrounding landowners.

1. The report further states the acoustic report has been independently reviewed by AECOM on behalf of council where it states:

1. A review by Council staff, has concluded that the report is satisfactory. The same report has been peer reviewed as part of the previous, development application considered by Council.

1. While Ms Gordon raises some issues with the acoustic reports, the great weight of evidence clearly suggests that any noise from the activities from the site can be managed so as not to have an unacceptable impact on surrounding landowners.

1. I note that the conditions imposed by the council staff in their recommendation for approval (conditions 2(1), 2(2) and 2(3)) come from an internal memo from the councils Senior Environmental Health Officer on 11 March 2103 although the conditions do not appear to reflect any of the options identified by SLR Consulting. Any conditions to control noise should be consistent with one of the options identified by SLR Consulting.

1. I am satisfied that noise would not be a reason to refuse the application, subject to appropriate conditions of consent.

Management of wastewater and stormwater

1. Ms Gordon maintains that additional information is required to address this matter but does not state that the management of wastewater and stormwater is a matter that would warrant the refusal of the application. The management of wastewater and stormwater was also addressed by the council staff in the report to the council on 17 June 2013 who state that conditions can be imposed to appropriately manage this matter. I note that the conditions imposed by the council staff in their recommendation for approval (conditions 5(1) to (5) and 8(1) and (2)) come from an internal memo from the councils Senior Environmental Health Officer on 11 March 2103 and I am satisfied that these conditions adequately address this matter given the number of dogs and the layout of the kennels and runs.

1. I am satisfied that management of wastewater and stormwater would not be a reason to refuse the application, subject to appropriate conditions of consent.

Animal welfare

1. Ms Gordon expressed concern that the proposal to muzzle the dogs during the night and evening would be inhumane for the dogs. She suggested that the kennels could be relocated to address any additional noise from the dogs by removing the muzzles.

1. In response, Ms Powell provided examples of the muzzles used by her for the dogs during the night and evening. She stated that the muzzles allowed dogs to drink but restricted barking and are approved by Greyhound Racing NSW. Ms Powell further stated that she conforms to the Greyhound Racing NSW Animal Welfare Policy that has an objective of providing "clear direction and firm commitment to high standards of animal welfare".

1. After her oral evidence, I am satisfied that Ms Powell has a commitment to the well being of the dogs in her care and that issues associated with the welfare of any dogs will be properly considered and appropriately addressed.

1. I am satisfied that animal welfare would not be a reason to refuse the application.

Rural character and amenity

1. Ms Gordon states that the proposal could be consistent with the objectives of the RU1 Primary zone of LEP 2011 and this contention would be resolved subject to the relocation of the kennels and runs to the north-western corner of the property with appropriate orientation, construction and sound attenuation wall.

1. As I understand the relocation of the kennels was the option suggested by the SLR Consulting letter of on 12 December 2011 however this was not the only option available that would provide an acceptable acoustic environment for surrounding landowners. I see no reason why the kennels and runs should be relocated to achieve an acceptable acoustic result when the existing location can achieve a similar result. While the existing 3 m side setback does not satisfy the 25 m side setback requirement in the DCP the variation to the side setback control can be supported for the sensible and practical reasons identified by the council staff where they state:

It is recognised that substantial works would be involved to relocate the kennels and exercise yards/pens to be 25m from the side property boundary, strict compliance with Council's requirements would mean the kennel facility would be located on top of the drainage swale.

Given that the landform slopes towards the swale, and conveys surface water runoff to the dam, the cost to reshape the land and realign the swale would be uneconomical for the landowners/persons having the benefit of the development consent. Such works are unlikely to have a significant public benefit in regards to visual impact and/or noise generation as conditions of consent are recommended to require additional landscaping and improvements to the facility to reduce noise emissions

1. Similarly, and while the kennel facility is located within 200m of dwelling houses on adjoining properties with the dwelling at 265 Bargo Road approximately 107m from the kennels and the dwelling house at 295 Bargo Road approximately 130m from the kennels, it was accepted, not unreasonably by council staff, that the reduced setback was acceptable because noise could be controlled so as not to have an unacceptable impact on surrounding landowners. I note that the adjoining neighbour at 295 Bargo Road has stated that he "did not find the dogs a nuisance".

1. I am satisfied that pursuant to cl 2.3(2) and having had regard to the zone objectives, particularly the objective relating to minimising conflict between land uses, that there is no basis to refuse consent. I am also satisfied that the variations to the DCP are justified and there are no reasons based on character and amenity that would warrant the refusal of the application.

Directions

1. To finalise the appeals the following directions are made:

1. The council is to serve on the applicant, no later than 4 July 2014, the conditions of consent for the animal boarding or training establishment based on the findings in the judgment and other appropriate conditions.

2. The applicant is to provide a written response to the council on the conditions, no later than 18 July 2014, and if it opposes any condition, the reason for the opposition.

3. If there are any conditions in dispute, the parties are to further discuss these conditions and make every endeavour to reach agreement by 25 July 2014.

4. If there are conditions that remain in dispute, the parties have leave to approach the Registrar for a hearing date in Sydney at the earliest possible time after 4 August 2014. If there are no conditions in dispute, final orders will be made in chambers.

____________

G T Brown

Commissioner of the Court

Decision last updated: 26 August 2014