ALLEN and CITY OF WANNEROO
[2011] WASAT 109
•13 JULY 2011
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: ALLEN and CITY OF WANNEROO [2011] WASAT 109
MEMBER: MR J JORDAN (MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 13 JULY 2011
FILE NO/S: DR 77 of 2011
BETWEEN: JULIE ALLEN
Applicant
AND
CITY OF WANNEROO
Respondent
Catchwords:
Town planning - Preliminary issue - Development application - Day care centre for dogs - Whether day care centre for dogs is prohibited - Whether day care centre for dogs is classified as 'kennels' as defined in local planning scheme - Whether day care centre for dogs involves boarding of dogs
Legislation:
City of Belmont Town Planning Scheme No 14, cl 4.2.3
City of Wanneroo Animals Local Law 1999 (WA), cl 14, cl 14(a), cl 14(b)
City of Wanneroo District Planning Scheme No 2, cl 3.2, cl 3.2.2, cl 3.3, cl 6.8, Sch 1, Table 1
Dog Act 1976 (WA), s 26(3), s 26(3)(b)
Planning and Development Act 2005 (WA), s 252(1)
Result:
The applicant's proposed day care centre for dogs is a use falling within the category of 'Unlisted Uses' of the City of Wanneroo District Planning Scheme No 2
Category: B
Representation:
Counsel:
Applicant: Mr PD Webb (Town Planner)
Respondent: Mr B Hesketh (Town Planner)
Solicitors:
Applicant: Peter D Webb & Associates (Town Planners)
Respondent: City of Wanneroo
Case(s) referred to in decision(s):
Galloway & Associates and City of Melville [2007] WASAT 238
Vary Enterprises Pty Ltd and City of Belmont [2008] WASAT 130
Vary Enterprises Pty Ltd and City of Belmont [2008] WASAT 65
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The City of Wanneroo refused an application for approval to use premises in an industrial zone as a day care centre for dogs. The parties raised as a preliminary issue whether the proposed use was properly characterised as 'kennels' under the local planning scheme.
The City of Wanneroo said that, under the local planning scheme, by definition, the use was 'Kennels' and therefore prohibited in the zone. The applicant argued that the use was an 'unlisted use' under the local planning scheme and discretion was available to determine the application on its merits.
The Tribunal noted that the boarding of dogs was central to the characterisation of a use as 'Kennels' under the local planning scheme. The Tribunal determined that the proposed use did not include the boarding of dogs, which it considered required the overnight accommodation of the dogs. In addition, the provision of food was a consideration for the boarding of dogs and the proposed use did not include the feeding of the dogs, other than treats as part of play or training, or with medication.
The Tribunal determined that the proposed use was appropriately categorised as an 'unlisted use'. The proposed use was therefore open to be assessed on its merits under the provisions of the local planning scheme.
Preliminary issue
This proceeding involves an application for review, brought by Ms Julie Allen (applicant) pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act), of the decision by the City of Wanneroo (City or respondent) to refuse a proposed day care centre for dogs at Unit 5, No 54 Buckingham Drive, Wangara (site). The site is one of eight separate industrial units, four each side of a central accessway. The site is at the rear of the lot and has attached a fenced yard for its exclusive use.
The site is on a lot zoned Service Industrial under City of Wanneroo District Planning Scheme No 2 (DPS 2).
The City refused the application for the following reasons:
The proposal is consistent with the definition of a 'kennel' under the City's District Planning Scheme No 2, a 'kennel' is a prohibited use within the 'service industrial' zone the subject property is located [sic].
At a directions hearing before the Tribunal, the parties raised as a preliminary issue the proper characterisation of the proposed use. The issue for the Tribunal can be expressed as:
Whether the proposed development is properly classified, for the purposes of DPS 2, as falling within the 'Kennels' use class or as a use falling to be considered under the category 'Unlisted Uses'.
The use class 'Kennels' is defined in Sch 1 of DPS 2 as follows:
kennels: means any land or buildings used for the boarding and breeding of domestic animals for remuneration where such premises are registered or required to be registered by the Council, and may include the sale of domestic animals.
In DPS 2, Table 1 (cl 3.2) The Zoning Table shows that the use class 'Kennels' is an 'X' use in the Service Industrial zone. Clause 3.2.2 of DPS 2 provides that the symbols in Table 1 have the following meanings:
'X'= A use class that is not permitted except where provision is made specifically for Council to approve an otherwise prohibited use.
'D'= A use class that is not permitted, unless the Council grants its approval after following the procedures laid down in subclause 6.6.2.
Clause 3.3 of DPS 2 is headed 'Unlisted Uses' and states:
If the use of the land for a particular purpose is not specifically mentioned in Table 1 and cannot reasonably be determined as falling within the interpretation of one of the use categories the Council may:
(a)determine that the use is consistent with the objectives and purposes of the particular zone and is therefore permitted; or
(b)determine that the proposed use may be consistent with the objectives and purposes of the zone and thereafter follow the 'D' procedures of [c]lause 6.6.2 in considering an application for planning approval; or
(c)determine that the use is not consistent with the objectives and purposes of the particular zone and is therefore not permitted.
Features of the proposed use
The applicant, in submissions and in a plan dated April 2011, described the proposed dog day care centre as comprising the following features:
•The unit on the site to be divided into three pens with solid walls and separate entrances, a reception area and a staff room.
•The external yard of the site to have cyclone fencing replaced with solid fencing and to have a wash facility.
•Services provided would include dogs mixed into supervised play groups, with dogs rested at various times of the day.
•Additional uses would include grooming, bathing, training and pet supplies.
•Hours of operation would be seven days per week between 6 am and 9 pm. It is projected that in the early months, hours of operation would be 7 am to 7 pm, five days per week. Evening and weekend opening hours would accommodate dog training classes.
•There would be spaces for 30 dogs per day.
•All dogs in day care must be desexed and fully vaccinated, flea and heartworm treated.
•Animal droppings would be disposed of by collection in plastic bags and frozen until collected by a bin service.
•Noise levels would be minimal because of the concrete building.
•Staff numbers would be between one and five, depending upon the number of dogs.
•The site includes adequate parking for dog owners and staff. A dog taxi service might operate on selected days.
•External changes would be signage on the external walls and a sign at the road frontage.
•There would be no sale of domestic animals.
•There would be no overnight accommodation of dogs.
•It is not the applicant's intention to ever feed dogs in the day care facility. Some 'treats' may be offered, but feeding will not take place.
The respondent acknowledged that the proposed use did not include breeding or sale of domestic animals. There was no dispute that the applicant would conduct the dog day care centre for remuneration.
Is the proposed day care centre for dogs prohibited?
The definition of 'Kennels' in DPS 2 contains a number of elements. Those that remain in dispute in respect of the proposed use are:
1) … land or buildings used for the boarding … of domestic animals for remuneration; and
2) … where such premises are registered or required to be registered …
The respondent argued that the difference between providing 'boarding' of domestic animals as per the definition of 'Kennels' in DPS 2 and 'keeping' of dogs on site, as proposed by the applicant, is a matter of semantics. The respondent said that the proposal was consistent with the definition of 'Kennels' in DPS 2. The definition of 'boarding' does not exclusively relate to overnight accommodation. The overnight keeping of dogs on the site would be of little consequence regardless, as the area in which the proposal is located is only populated during regular business hours. In practice, the impacts that the proposal would have on surrounding businesses, and vice versa, would be largely the same regardless of the term applied.
The respondent supported its submission by commenting that the definition of 'Kennels' under DPS 2 refers to land or buildings used for boarding and breeding where such premises are registered or required to be registered by the City. The respondent said the proposed use would require registration of the site as a kennel under cl 14 of the City of Wanneroo Animals Local Law 1999 (WA) (Animals Local Law). The proposed number of dogs to be cared for by the applicant significantly exceeded the number of dogs less than which no registration would be required, referred to at cl 14(a) of the Animals Local Law and the site was less than 4 hectares minimum area prescribed by cl 14(b) of the Animals Local Law. The respondent said these aspects of the proposed development rendered the premises a 'kennel' under the Animals Local Law and therefore, under DPS 2.
The respondent said the Animals Local Law, at cl 14, provides for the granting of an exemption on the number of dogs kept, provided that such exemption is in accordance with s 26(3) of the Dog Act 1976 (WA) (Dog Act). Section 26(3)(b) of the Dog Act states that any such exemption shall not authorise the keeping of more than six dogs on any premises. It was the respondent's submission that the exemption was not available to the applicant because of the number of dogs to be cared for. The proposal, as it stands, will require registration as a 'kennel' under the Animals Local Law.
The respondent noted that DPS 2 and the Animals Local Law were separate statutory documents, but said the fact that DPS 2 makes implicit reference to and relies upon the Animals Local Law in defining a 'kennels', means that a 'kennel' for the purpose of the Animals Local Law should be considered as 'Kennels' for the purpose of DPS 2.
The respondent summarised its position by stating that the proposal can reasonably be determined to fall under the use class 'Kennels' as defined in DPS 2, because the proposal is required to be registered as a 'kennel' under the Animals Local Law.
The respondent further offered the comment that should the proposal be characterised as a 'use not listed', the City does not see a means by which the premises could be approved because under the Animals Local Law and the Dog Act no more than six dogs could be kept on the site.
The applicant referred to the respondent's comments on the term 'boarding' in the definition of 'kennels' in DPS 2. The applicant suggested that there were difficulties with this reference because the definition refers to 'boarding and breeding'. The applicant said that '[c]learly the definition of kennels anticipated a correlation between those two uses (rather than the definition referring to "boarding AND/OR breeding" or "boarding or breeding"[)] ...' and there was to be no breeding on the site.
The applicant referred to Vary Enterprises Pty Ltd and City of Belmont [2008] WASAT 130 (Vary Enterprises final hearing). In that matter, the City of Belmont had refused an application for a day care for dogs, characterising the use as 'Dog Kennels', as defined under the City of Belmont Town Planning Scheme No 14 (Belmont TPS 14), which was a prohibited use in the zone. The Tribunal formed the view that, because of the fundamental differences between the operations of a dog kennel and the dog day care centre being promoted by Vary Enterprises Pty Ltd, the use as proposed was not a dog kennel as such, but was able to be considered as a 'use not listed' pursuant to cl 4.2.3 of Belmont TPS 14.
The applicant said that in the matter of the Vary Enterprisesfinal hearing, the Tribunal also considered the dictionary definition of 'boarding' (used in 'boarding house'), which proposed a residential facility ' … in which accommodation and meals are provided for paying guests'. The applicant said that in the Vary Enterprisesfinal hearing, the Tribunal acknowledged that 'accommodation' more than reasonably implies overnight accommodation, which is not the case in the matter currently before the Tribunal, and what might reasonably be anticipated in conventional 'kennels'. It was also proposed not to feed the dogs in the day care facility.
The applicant said that the respondent's submission concerning the Animals Local Law and any limit on the number of dogs able to be accommodated on the site was irrelevant during this part of the process. The applicant referred to cl 14 of the Animals Local Law that requires that the number of dogs be limited, but noted cl 14 also provides for consideration of an exemption pursuant to s 26(3) of the Dog Act and planning approval under the town planning scheme.
The applicant said:
It is incumbent on the Applicant to progress (and justify) such an Application once the question of 'Characterisation' has been finalised.
The applicant said, but did not pursue the argument, that:
… there are provisions in the Local Law which enable the Respondent (or the Tribunal, as the case may be) to agree to grant Planning Approval, thereby negating any involvement with the Local Law (subject to securing an exemption pursuant to Section 26(3) of the Dog Act). (applicant's emphasis)
The applicant said the number of dogs was an issue that would be resolved during the substantive hearing. The applicant would justify the development on its merits once the question of characterisation has been finalised, having due regard to the matters to be considered when determining a development application under cl 6.8 of DPS 2.
The applicant made the assertion that any involvement with the Animals Local Law in a planning approval would be 'negated' subject to securing ' … an exemption pursuant to s 26(3) of the Dog Act'. Section 26(3) of the Dog Act relies, in part, on the Animals Local Law, but in the applicant's submission, the Animals Local Law would be superseded following what it considers is the proper characterisation of the proposal as a use not listed.
In the applicant's submission, the characterisation of the use as one not listed would enable the matter to be formally considered as a bona fide application, pursuant to cl 3.3 of DPS 2. The applicant said the relevance of the Dog Act might be invoked during the development assessment process.
The Tribunal would first state that it does not agree with the applicant's submission that the 'and' in the definition of 'Kennels' under DPS 2 must only be read as conjunctive, having a cumulative effect so that boarding and breeding are to be considered together for there to be kennel.
In Galloway & Associates and City of Melville [2007] WASAT 238, at [41], the Tribunal cited authorities on the issue of the drafting of town planning schemes, including:
In Chiefari v Brisbane City Council [2005] QPELR 500, Wilson SC DCJ said, at 502:
'[The definitions under review] are included in [sic] to provide an explanation of the meaning of terms used in the Scheme. They are obviously of general application and intended to cover a variety of circumstances. They will ordinarily be construed in a manner which acknowledges that planning schemes are largely the work of town planners, not parliamentary counsel; ergo, they should be read as a whole and applied in a practical and commonsense way, and not an overly technical way, and in a fashion which will best achieve their evident purpose.'
... (emphasis removed)
The Tribunal considers that the purpose of the definition of 'Kennels' in DPS 2 is to identify a use where a dog might be boarded, whether or not it is for the purpose of breeding with other dogs, and not necessarily on premises where other dogs must be breeding. The Tribunal would respectfully suggest that, to achieve the purpose of the use class under DPS 2, the definition must be read as including the various combinations of 'boarding and breeding' or simply 'boarding'. This is particularly relevant when it is not unusual for dogs to be operated and made incapable of breeding.
This leads to the question of whether the proposed use includes the boarding of dogs.
Prior to the finding by the Senior Sessional Member of the Tribunal in the Vary Enterprises final hearing, then Senior Member Parry of the Tribunal determined, in Vary Enterprises Pty Ltd and City of Belmont [2008] WASAT 65 (Vary Enterprises preliminary issue), as a preliminary issue, at [9]:
Whether the proposed development is classified for the purposes of TPS 14 as a use falling within the 'Dog Kennels' use class or as a use falling within the category 'Use Not Listed'.
The Senior Member's order in Vary Enterprises preliminary issue was:
The preliminary issue is answered as follows:
The applicant's proposed use of Unit 6, 102 Robinson Avenue, Belmont for a day care centre for dogs is not classified as falling within the 'Dog Kennels' use class under the City of Belmont Town Planning Scheme No 14 and is a use falling within the category 'Use Not Listed' under that Scheme.
The Tribunal has concluded that, with respect, as with the Tribunal's finding in Vary Enterprises preliminary issue, the applicant's proposed use of the site as a day care centre for dogs is appropriately characterised under DPS 2 as an 'unlisted use'.
In Vary Enterprises preliminary issue, under consideration was the definition of the term 'Dog Kennels' in Belmont TPS 14. The term was defined by TPS 14 to mean:
… any land or buildings used for the boarding or breeding of dogs where such premises are registered or required to be registered by the Council; and may include the sale of dogs where such use is incidental to the predominant use.
Given the Tribunal's comments above on the expression 'boarding and breeding' in the definition of 'Kennels' under DPS 2, the Tribunal is of the view that for the purposes of the current matter, there are no material differences between the definition for 'Dog Kennels' under Belmont TPS 14 and 'Kennels' under DPS 2.
DPS 2 does not define 'boarding'. In Vary Enterprises preliminary issue, at [17] and [18], the Tribunal said:
The word 'boarding' is not defined in the Scheme. It is an ordinary English word to be given its natural meaning. The following definitions of the verb 'board' in The Macquarie Dictionary (Macquarie Sydney 4th Ed 2005) at page 159 are potentially apposite:
'to furnish with food, or with food and lodging, especially for pay'
'to board out: To board the dog for the holidays'
'to live in a room, with or without meals provided, at an agreed price.'
The noun 'lodging' is defined at page 840 as follows:
'1. accommodation in a house, especially in rooms for hire; to furnish board and lodging. 2. a place of abode, especially a temporary one. 3. (plural) a room or rooms hired for residence in another's house.'
The comment can be made that if the use involved humans attending for a period and being provided with food but no lodging, then the use classes of 'Restaurant' or 'Lunch Bar' might be relevant.
The applicant proposes, however, that dogs owned by others will be cared for over a period of up to a day, and, in any event, no more than 'treats' is contemplated. Overnight lodging, that is, 'accommodation' or a 'temporary' abode' will not be available to the dogs.
The Tribunal has formed the view, therefore, that the proposed use cannot reasonably be considered as 'kennels'. Minding the dogs of others for up to a day is not considered to fit readily within the requirement for boarding the dogs, as required for the use to be classified as 'Kennels'.
The respondent also raised as a consideration, that the number of dogs to be held on the site would, in its submission, require licensing as a 'kennel establishment' under its Animals Local Law, unless an exemption is granted pursuant to the Dog Act. The respondent said an exemption under the Dog Act would not be available for the proposed use because of the number of dogs to be held. The applicant held a contrary view. The parties did not pursue to any depth their arguments in support of their positions on the application of the Animals Local Law and the Dog Act to the proposed use.
The Tribunal is not required to apply the provisions of the Animals Local Law and the Dog Act as part of its consideration of the matter currently before it. The Tribunal would, however, make the comment that it is of the view that if a use is to be categorised under other legislation for the purposes of the application of that other legislation, that categorisation does not necessarily disturb the appropriate characterisation of the use under a town planning scheme. Different definitions under other legislation might have different consequences. The concern here is the proposed use and the provisions of DPS 2.
The Tribunal has determined that the proposed use is properly categorised as an 'unlisted use' under DPS 2. The planning merits of the use can be assessed according to the procedures of cl 3.3 of DPS 2 and having regard to the matters to be considered at cl 6.8 of DPS 2.
Orders
1. The preliminary issue is answered as follows:
'The applicant's proposed use of Unit 5, No 54 Buckingham Drive, Wangara, for a day care centre for dogs is not classified as falling within the use class "Kennels" under the City of Wanneroo District Planning Scheme No 2, and is a use falling within the category "Unlisted Uses" of that Scheme.'
I certify that this and the preceding [45] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J JORDAN, MEMBER
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