| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : BAYER and CITY OF ROCKINGHAM [2014] WASAT 18 MEMBER : MR J JORDAN (MEMBER) HEARD : 8 NOVEMBER 2013 FINAL SUBMISSIONS 25 NOVEMBER 2013
DELIVERED : 13 FEBRUARY 2014 FILE NO/S : DR 391 of 2012 BETWEEN : LUCIE BAYER Applicant
AND
CITY OF ROCKINGHAM
Respondent
Catchwords: Town planning Development Refusal Dog minding use Dogs to be contained within area inside dwelling No overnight stay of dogs Special Residential zoning Home Occupation or Home Business Discretion to vary standards and requirements Time limited approval Approval personal to applicant Legislation: City of Rockingham Town Planning Scheme No 2, cl 4.13.1, cl 4.13.3, cl 4.16.1, cl 4.16.1(c), cl 4.16.2, cl 4.20.1, cl 6.3.3, cl 6.6, cl 6.7.4, Sch 1, Sch 5
City of Swan Town Planning Scheme No 17, cl 5.1
Planning and Development Act 2005 (WA)
State Administrative Tribunal Act 2004 (WA), s 31 Result: Application for review upheld
Conditional planning approval granted for Home Occupation (dog minding) for two dogs to be conducted inside the dwelling for a period of two years, after which a fresh application for planning approval would be required
Summary of Tribunal's decision: The applicant applied for planning approval for a use described as a 'Home Occupation (dog minding)' in a single dwelling. The house was on a 2,250 square metre lot in a Special Residential zoned area. Two dogs, additional to dogs (up to two) registered in the name of the applicant, would be minded during the day seven days a week within a room inside the house. The minded dogs would be exercised away from the site.
The application was refused because the City of Rockingham did not consider the use fitted within the interpretation of 'Home Occupation' under the City of Rockingham Town Planning Scheme No 2 and therefore was prohibited in the zone. The Council also considered that the use would adversely affect the amenity of the surrounding residential area.
The Tribunal determined that the requirements and standards for a Home Occupation could be varied under the particular provisions of the City of Rockingham Town Planning Scheme No 2, and discretion was available to consider the merits of the proposed use as a Home Occupation.
The Tribunal found that having regard to the way the use was to be conducted within the house, any potential impact on local amenity could be addressed by appropriate conditions. Conditional approval would include a management plan and a requirement for a fresh application if the use were to continue beyond two years. Approval would also be consistent with the objectives of the relevant policy on Home Occupation.
The Tribunal upheld the application and granted conditional approval.
Category: B
Representation: Counsel:
Applicant : Mr J Algeri (Acting as Agent)
Respondent : Ms A Butterworth (Acting as Agent)
Solicitors:
Applicant : Algeri Planning & Appeals (Town Planners)
Respondent : Allerding & Associates (Planning Consultants)
Case(s) referred to in decision(s):
Callaway and City of Swan [2014] WASAT 5
Marshall and the City of Rockingham [2006] WASAT 249
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction 1 These proceedings involve an application brought by Ms Lucie Bayer (applicant) against the refusal of the City of Rockingham (respondent or City) to grant planning approval for a proposed 'Home Occupation (dog minding)' at No 3 Westray Court, Warnbro (site). 2 The site and the locality 3 On 8 November 2013 the Tribunal viewed the site and the neighbouring street, accompanied by the applicant, Mr Joe Algeri, town planner, acting as agent for the applicant, and Ms Amanda Butterworth, town planner, acting as agent for the respondent. 4 The site, consistent with neighbouring lots, has an area of 2,250m², and a building envelope of 1,425m² defined by boundary setbacks. The area is characterised by undulating dune landscape with native scrub between building envelopes. 5 There is a single storey brick and tile dwelling on the site. The front door opens onto an entry area which then opens onto a (scaled) area of 31m² marked 'dining lounge' on the application plan. To the right is a door into a room marked 'bed 1'. Beyond the dining lounge area is a wall with an opening at one end to a kitchen and at the other end to an area marked 'family'. The kitchen and family spaces are in an open area that also includes spaces marked 'meals' and 'games'. A passageway leads from the family area to three bedrooms, a laundry and a bathroom. At the back of the house, sliding glass doors from the games area open onto a paved area and to the backyard. 6 The building envelope at the rear of the house is fenced and includes a grassed area and bushes. Beyond the building envelope, natural vegetation has been retained. To the west is a steep incline of vegetated dune beyond which is a house on the neighbouring lot. To the rear is vegetation on the neighbouring lot beyond which can be seen a brown metal fence about 1,800 millimetres high around a building envelope within which the neighbouring house is built. Similarly, to the east is more natural vegetation, then the building envelope and house on the neighbouring lot. There are no boundary fences between the lots.
Planning framework 7 The site is zoned Special Residential in City of Rockingham Town Planning Scheme No 2 (TPS 2). At cl 4.13.1 of TPS 2 the objective for the Special Residential zone is: 8 Under Sch 5 of TPS 2 the site is located within Special Residential Zone, Warnbro Dunes. For the site it is stated: 9 Particularly relevant to this matter are the following 'Land Use Interpretations' found in Sch 1 of TPS 2: … Home Business: means a business, service or profession carried out in a dwelling or on land around a dwelling by an occupier of the dwelling which: (a) does not employ more than 2 people not members of the occupier's household; (b) will not cause injury to or adversely affect the amenity of the neighbourhood; (c) does not occupy an area greater than 50 square metres; (d) does not involve the retail sale, display or hire of goods of any nature; (e) in relation to vehicles and parking, does not result in traffic difficulties as a result of the inadequacy of parking or an increase in traffic volumes in the neighbourhood, and does not involve the presence, use or calling of a vehicle more than 3.5 tonnes tare weight; and (f) does not involve the use of an essential service of greater capacity than normally required in the zone. Home Occupation: means an occupation carried out in a dwelling or on land around a dwelling by an occupier of the dwelling which: (a) does not employ any person not a member of the occupier's household; (b) will not cause injury to or adversely affect the amenity of the neighbourhood; (c) does not occupy an area greater than 20 square metres; (d) does not display a sign exceeding 0.2 square metres; (e) does not involve the retail sale, display or hire of goods of any nature; (f) in relation to vehicles and parking, does not result in the requirement for a greater number of parking facilities than normally required for a single dwelling or an increase in traffic volume in the neighbourhood, does not involve the presence, use or calling of a vehicle more than 2 tonnes tare weight, and does not include provision for the fuelling, repair or maintenance of motor vehicles; and (g) does not involve the use of an essential service of greater capacity than normally required in the zone[.] 10 Clause 4.16.1 of TPS 2 is concerned with the operation of a Home Occupation and states: (a) The Council shall only permit the operation of a Home Occupation within a dwelling or within the boundaries of a lot where it is satisfied that the operation:- [then, listed as items (i) to (vii), are the items listed as (a) to (g) in the interpretation of Home Occupation in Sch 1, as set out in full above]. (b) In assessing applications for planning approval in accordance with clause 4.16.1(a), the Council shall take into account the objectives of the particular zone and any Policy pertaining to that zone. (c) Council will also consider specific issues including the specific method and location of the operation, the potential for nuisance to the surrounding neighbourhood, impacts on neighbours, hours of operation, traffic generation, carparking requirements and the location of any associated storage areas. 11 Clause 4.16.2 of TPS 2 is concerned with the operation of a Home Business and similarly states: (a) The Council shall only permit the operation of a Home Business within a dwelling or within the boundaries of a lot where it is satisfied that the operation:- [then, listed as items (i) to (vi), are items listed as (a) to (f) in the interpretation of Home Business in Sch 1, set out in full above]. (b) In assessing applications for planning approval in accordance with clause 4.16.2(a), the Council shall take into account the objectives of the particular zone and any Policy pertaining to that zone. (c) Council will also consider specific issues including the specific method and location of the operation, the potential for nuisance to the surrounding neighbourhood, impacts on neighbours, hours of operation, traffic generation, carparking requirements and the location of any associated storage areas. 12 Clause 4.20.1 of TPS 2 provides as follows: [I]f a development is the subject of an application for planning approval and does not comply with a standard or requirement prescribed under the Scheme, the Council may, notwithstanding the non-compliance, approve the application unconditionally or subject to such conditions as the Council thinks fit. 13 The respondent has adopted Planning Policy 3.3.10 Home Occupation and Home Business (Policy 3.3.10). In the introduction of Policy 3.3.10 it states at clause 1: The City of Rockingham Town Planning Scheme No 2 provides for a small business to be carried out from a 'dwelling', provided that it does not adversely affect the 'amenity' of the locality[.] 14 The objectives at clause 3 of Policy 3.3.10 are as follows: (a) To promote the orderly and proper development of land by making suitable provisions to guide applicants who wish to operate a Home Occupation or a Home Business from a dwelling; (b) To secure the amenity, health and convenience of the neighbourhood through appropriate development requirements; and (c) To provide for economic growth and employment opportunities by facilitating the development of home based businesses. 15 At clause 4.1 of Policy 3.3.10 it states: The Council shall only permit the operation of a Home Occupation or Home Business within a dwelling or within the boundaries of a lot where it is satisfied that the operation will not cause injury to or adversely affect the amenity of the neighbourhood[.] 16 Policy 3.3.10 goes on to restate from cl 4.16.1 and cl 4.16.2 of TPS 2 the requirement that any traffic generated by the Home Occupation or Home Business is not to have an impact on the amenity of the locality or have an adverse impact on the existing nature of the street, and that applications will be the subject of the process of community consultation in accordance with cl 6.3.3 of TPS 2. 17 The respondent initially refused the application for the following reason: The proposed use is classified as a 'dog kennel' which is an 'X use' (ie not permitted) in a 'Special Residential Zone'. 18 The applicant then applied to the Tribunal for a review of the respondent's decision. 19 On the basis of a restatement from the applicant of how the use would be conducted, the respondent reconsidered the application pursuant to an invitation from the Tribunal under s 31 of the State Administrative Tribunal Act 2004 (WA). The respondent refused the revised development application for the following reasons: 1. The proposed dog minding use is not permitted under Town Planning Scheme No 2 as it is not consistent with the interpretation of a 'Home Occupation' under the Town Planning Scheme No 2, specifically clause 4.16.1(a)(ii) and (iii). 2. The proposed dog minding [use] fails to comply with the Planning Policy 3.3.10 Home Occupations and Home Businesses, as it is likely to adversely affect the amenity of the area which is characterised by Special Residential zoned (lifestyle) lots. 3. As the revised application falls outside of the definition of a 'Home Occupation', it is classified in TPS2 as a 'Use not Listed'. Within the Warnbro Dunes Special Residential Zone, Clause 2(d) of TPS2 states that 'All other uses are not permitted ('X')', including Uses Not Listed, which means that the City is unable to consider the revised Dog Minding application.
The proposed use 20 The proposed use was described as follows: • No dogs will stay overnight; • The proposed operating hours are from 7.00 am to 6.30 pm Monday to Friday, as well as 9.00 am to 4.00 pm Saturday and Sunday; • A maximum of four (4) dogs on the premises at any one time; • Two (2) dogs are proposed to be 'minded' at any one time; • Minded dogs will be kept inside the existing house, with the exception of exercise walks that occur off the premises; • Dog excrement will be collected daily; • The back yard will be securely fenced; • A current vaccination certificate will be required to be provided to the business operator prior to any dog being left at the premises; • All dogs will be checked for fleas upon entry and will not be accepted if they are found to have fleas; and • The minded dogs will be kept inside the house within the lounge and dining area which measures approximately 24m². The minded dogs will not be kept in the outside area of the property as the applicant will be periodically walking the dog's [sic] offsite. 21 The maximum number of dogs on the premises may be four at any one time because, in addition to two minded dogs, the applicant may wish to keep two dogs registered in her own name. The applicant currently has one dog registered in her name that lives on the site. 22 The respondent produced as an exhibit a plan, with the area said to be for the Home Occupation outlined in red which was calculated to be 32m². This was not disputed by the applicant. 23 Issues 24 The issues identified by the respondent were: 1) Whether the proposed use is a prohibited use within the Special Residential (Warnbro Dunes) zone under TPS 2. 2) Whether the proposed use, if determined to be a Home Occupation and a discretionary use under TPS 2, is to be granted approval having regard to the relevant considerations under TPS 2 and policies made under TPS 2.
Discussion
Whether the proposed use is a prohibited use within the Special Residential (Warnbro Dunes) zone under TPS 2 25 Ms Butterworth referred to the interpretations in Sch 1 of TPS 2 for both Home Occupation and Home Business. It was her submission that because the area for the proposed use exceeded 20m², the proposed use did not meet the requirement for a Home Occupation, and this must reasonably place the use in the use class of Home Business. Ms Butterworth pointed out that a Home Business is a prohibited use in the Special Residential zone. 26 Mr Algeri cited Marshall and the City of Rockingham [2006] WASAT 249 (Marshall) at [37] and [38] in support of the use of cl 4.20.1 of TPS 2 to vary the standards and requirements for a Home Occupation. In Marshall the Tribunal analysed cases that set out differing approaches to whether definitions under a town planning scheme are amenable to amendment or variation. In that matter the Tribunal was considering whether a proposed use must be considered as an Office, or could be varied as provided by cl 4.20.1 of TPS 2 and considered as a Home Business. The Tribunal found at [37] and [38] as follows: The Tribunal has not found the resolution of this matter easy. Although the matter is not free from doubt, the Tribunal has concluded that, on the whole, the better view is that the parallel limitation imposed by both the definition clause and the development requirement clause (cl 4.16.2) indicates that the drafter of this instrument favoured (and, importantly, textually so indicated) some flexibility in the Scheme and intended that this was a 'requirement' that could be varied by the City (notwithstanding the fixed definition), thus permitting the possibility of a home business with 'more than 2 [employees] not members of the Occupier's household'. This conclusion would be as a result of reading TPS 2 'as a whole and [applying it] in a practical and [common sense], and not an overly technical way, and in a fashion which [would] best achieve [its] evident purpose'[.] 27 In noting Ms Butterworth's submission, the Tribunal would add that if in TPS 2 the reference to each of Home Occupation and Home Business were only to be only found in the definitions of Sch 1, then it is arguable that the use must be found to be a Home Business because of the floor area. In Callaway and City of Swan [2014] WASAT 5 (Callaway) the applicant had submitted that the definition of 'Home Business' in City of Swan Town Planning Scheme No 17 (TPS 17) was amenable to variation under cl 5.1 of TPS 17, which is identical to cl 4.20.1 of TPS 2. 28 In Callaway the Tribunal examined relevant cases and distinguished Marshall,stating at [21] to [23] that, unlike TPS 17: … In TPS 2 the 'home business' definition is duplicated under Pt 4 'General development requirements' at cl 4.16.2(a). For the sake of completeness, the Tribunal notes that cl 4.16.2(b) and (c) of the TPS 2 refer to amenity and policy matters. In Marshall,at [37], the Tribunal found that the limitation on the number of nonhousehold employees could be varied under cl 4.20.1 of TPS 2 (the equivalent of cl 5.5.1 of LPS 17) as the employee limitation was a 'requirement' under cl 4.16.2(a). According to the City's submission, cl 4.16.2 of TPS 2 was a critical factor in Marshall which allowed a variation to the number of non-household employees. However, LPS 17 does not include an equivalent provision to cl 4.16.2 of TPS 2. In these circumstances the City submits that in the absence of an equivalent provision to cl 4.16.2 of TPS 2, then Marshall supports the orthodox approach to the interpretation of defined terms and general clauses in planning schemes[.] 29 In this matter the difference is in floor area in the two defined uses, not number of employees as in Marshall. The Tribunal considers however, the interpretation enunciated in Marshall is still applicable. As stated above, cl 4.16.1 of TPS 2 includes the standards or requirements for a Home Occupation, notwithstanding that these are a list of items identical to that in the definition of this use in Sch 1. 30 Consistent with the Tribunal's finding in Marshall, the standards or requirements for the Home Occupation at cl 4.16.1 of TPS 2 can be varied as provided for under cl 4.20.1 of TPS 2. 31 In this matter the Tribunal considers that the proposed use would be more consistent with a Home Occupation than a Home Business. This is because the applicant, as occupant of the house, would be sole operator, and there would be no employees and limited visits by others to the site. The amenity impact from the proposed use of floor area in excess of 20m² would not be readily ascertainable. The Tribunal has concluded that in the circumstances of this case, the variation in floor area allowed under cl 4.20.1 is appropriate so that the merits of the proposed use can be determined as a consideration of a Home Occupation, consistent with the findings in Marshall. 32 Then the question arises as to whether, in the circumstances, discretion should be exercised and the proposed use allowed.
Whether the proposed use, if determined to be a Home Occupation and a discretionary use under TPS 2, is to be granted approval, having regard to the relevant considerations under TPS 2 and policies made under TPS 2 33 The objectives for the Special Residential zone listed at cl 4.13.1 of TPS 2 includes ensuring that all development has due regard to any plan or policy that the Council has adopted to guide the future development within the zone, and cl 4.13.3 requires the same consideration when assessing applications for planning approval. Clause 4.16.1(c), set out in full above, lists items to be included in the consideration of the merits of a proposed development. The same considerations are also listed at cl 6.6 of TPS 2. 34 The parties referred to Policy 3.3.10. The introduction to Policy 3.3.10 states that TPS 2 provides for small business to be carried out from a dwelling such that it does not 'adversely affect the amenity of the locality'. The purpose of Policy 3.3.10 is set out in the objectives and policy provisions. The objectives include at clause 3: … (b) To secure the amenity, health and convenience of the neighbourhood through appropriate development requirements; and (c) To provide for economic growth and employment opportunities by facilitating the development of home based businesses. Policy 3.3.10, however, goes on to state at clause 4.1: 35 It was the concern of the respondent that there was insufficient detail provided as to how the applicant would ensure the dogs were contained within the lounge room of the house and not escape, either through the front door to the street or through the rear doors to the yard. It was not clear to the respondent how the applicant intended that the dogs be kept in the house and the consequences of the dogs escaping the premises. In addition, there was concern about the cared for dogs interacting with the applicant's dog or, if obtained, second dog. 36 The respondent was concerned that dogs were not permitted on the beach that was in close proximity to the site, and the closest dog park was more than a 500 metre walk from the site, predominantly walking on roads. Ms Butterworth considered the property not well placed for dog exercise off the premises. 37 With the proposed use likely to result in four dogs being on the property at any one time, the respondent was concerned that there was potential for barking dogs to become a nuisance to the surrounding neighbourhood. The respondent said that it had not satisfactorily been demonstrated that the development was compatible with the surrounding land use. 38 In the respondent's bundle of documents is an email dated 2 July 2013 from the applicant to the respondent stating that she was 'withdrawing this proposed use of the backyard. Backyard will not be used for dogs and they will be regularly walked on the leash outside the property for toilet'. That is, the two dogs being cared for would be confined within the house with no exercising or toilet breaks in the back yard. These activities would occur elsewhere off site, when occurring outside the house. The only dogs permitted in the yard of the house would be dogs registered in the applicant's name. 39 In an exchange at the hearing the applicant undertook to isolate an area inside the house near the front door separate from the dog area, so that when the front door was opened, the dogs could not escape. 40 The Tribunal has formed the view that on the basis of the use as now proposed, it can be considered that the impact of the use on the neighbourhood would be limited to an extent sufficient to allow the use to proceed. This is because of the size of the lot, the dogs being kept inside, no minded dogs kept overnight, no minded dogs allowed in the rear yard, and possible internal modifications to prevent accidental escape from the house. 41 In respect to the arrangement of the use within the house, the Tribunal is of the view that because the proposed use is not simply activity by the inhabitant, including use of inanimate objects such as might be found in an office, the area to be occupied by the dogs should be identified and marked by appropriate fence-like barriers. In this way the animals could not simply make use of the whole of the house. 42 To achieve this objective the fence-like barrier proposed to be erected near the front door should be extended across the gaps in the walls that serve to outline the equivalent of a passage between the front door and the family area. The opening in the wall that separates the lounge room from the kitchen should also have a similar barrier erected. In this way, inspection would reveal which area of the house was for the minding of dogs, and which was the residence. Accidental escape of minded dogs into the backyard would also be prevented in this way. The attached sketch, date stamped 11 February 2014 by the Tribunal, shows the location of the barrier and the area to be used for the Home Occupation of minding two dogs. 43 The Tribunal has concluded that consistent with the objectives of Policy 3.3.10, approval of the Home Occupation of dog minding would create an employment opportunity for the applicant and with appropriate conditions, impact on the neighbourhood might be satisfactorily addressed.
Conditions 44 The respondent provided a schedule of conditions it would want imposed if the Tribunal were minded to grant planning approval for the development. 45 The first condition sought to impose a requirement that the planning approval be valid after 12 months, following which a fresh application for planning approval would be required. The applicant said that it would be onerous to have to reapply for a completely new planning approval and have the application re-advertised so soon after approval. Paying a fee for renewal was suggested as an alternative or, if there was to be a time limit, it should be at least for 24 months or preferably up to five years. 46 The Tribunal is of the view that there should be a time limit on the approval. This is provided for at cl 6.7.4 of TPS 2. The Tribunal considers that because this Home Occupation involves the introduction of minded dogs into a home in a residential zone, albeit of larger lots, and notwithstanding the applicant's statements to the effect that she can completely control dogs, there remains the potential for disturbance in the neighbourhood from the animals. A fresh application would provide an opportunity to consider whether in fact there had been any impact on the local amenity from the use. As suggested by the applicant, reapplying within 12 months would be onerous, and a period of 24 months is considered more reasonable. The effectiveness of any management plan can be the subject of any deliberations on a fresh application. The respondent said that, depending upon how the use has been operated, a change to the period of approval, if warranted, might be granted. 47 The respondent requested that a maximum of three dogs be permitted on the premises at any one time, with a maximum of two dogs to be 'minded' at any one time. Mr Algeri pointed out that the applicant, although she currently only owns one dog, has in the past owned two dogs and may well own two dogs in the future. He then suggested that a maximum of four dogs be permitted on the premises at any one time, with a maximum of two dogs to be 'minded' at any one time. On this basis the Tribunal agrees that a maximum of four dogs, but with only up to two dogs being minded dogs, be permitted on the premises at any one time, as suggested by the applicant. 48 The next condition discussed between the parties related to the dogs not being permitted to stay or board at the premises overnight. The parties wanted it made clear that minded dogs not be permitted to remain overnight and that only dogs registered in the applicant's name remain on the premises. The Tribunal agrees that such a condition would be appropriate. 49 The next condition in dispute was in respect of the hours of operation. There was no dispute that the hours of operation might be from 7.00 am to 6.30 pm Mondays to Fridays inclusive. The respondent wanted no dogs to be kept on Saturdays, Sundays and public holidays. The applicant wished to include the minding of dogs from 9.00 am to 4.00 pm on Saturdays and Sundays. It was pointed out that these hours should not be objectionable because of the way the dogs would be kept and managed. The Tribunal was of the view that Saturdays and Sundays should be included as suggested, again because of the manner in which it is proposed to control the minded dogs. 50 The respondent suggested a condition that the Home Occupation operates from inside the dwelling with the exception of backyard toilet breaks with a maximum of 10 minutes at a time. The applicant agreed to this condition. The Tribunal notes the applicant amended the proposed use in July 2013 to exclude any use of the backyard by minded dogs. The applicant's earlier undertaking is appropriate in this residential locality. The Tribunal is of the view that minded dogs not be allowed to use the backyard, so there is no potential nuisance impact on local amenity from such an activity. The length of time necessary for a toilet break and coordinating the toilet breaks of minded dogs is too uncertain to ensure minimal use of the backyard by minded dogs. The condition in this respect should read that the Home Occupation must only operate from inside the existing dwelling other than when minded dogs enter and leave the premises via the front door when being delivered by owners, or in association with excursions off the site accompanied by the applicant. 51 As discussed above the Tribunal is of the view that the area inside the house to be used for dog minding should be defined by a fence-like barrier to separate it from the residential use. 52 A further condition suggested by the respondent was that clients park in the driveway, with no vehicle parking permitted on the road verge of Westray Court. The road pavement and verge are beyond the control of the applicant. Other than the applicant encouraging customers to park in the driveway, this is not a condition that can be satisfied by her. A management plan could include a provision to encourage clients to park in her driveway. 53 At the hearing the respondent suggested that any planning approval be made personally to the applicant. This would reflect the applicant's particular skills for this type of Home Occupation. The Tribunal agrees with the condition suggested by the respondent as follows: This approval is issued personally to Ms Lucie Bayer for conducting a dog minding home occupation on No 3 (Lot 124) Westray Court, Warnbro and is not transferrable to another person or another property. 54 As discussed above the Tribunal is of the view that the area to be occupied by this Home Occupation should be physically defined within the house. A condition should be included referring to an attached map setting out this requirement. 55 Also at the hearing the respondent asked that the following condition requiring a management plan for the home occupation be imposed. The Tribunal agrees because of the particular character of dog minding. The applicant did not object to a condition, such as: The applicant shall prepare and submit a management plan detailing the operational particulars and management procedures. The management plan shall be approved by the City of Rockingham prior to the commencement of operations and operations shall comply with the management plan. 56 On the orders of the Tribunal the applicant filed with the Tribunal and provided to the respondent a draft management plan. 57 The respondent provided comments on the draft management plan. The applicant informed the Tribunal on 25 November 2013 that the concerns raised by the respondent about the management plan would 'easily be addressed and incorporated' should the Tribunal grant additional approval of the application. 58 In considering the content of the management plan the Tribunal would comment that information contained in the conditions imposed on the development approval should be repeated in some respects in the management plan. This is because it is the management plan that would be a document readily available for consideration as to the performance of the proposed use. In this regard the following comments are made: • The hours of operation in the management plan should reflect those in the approval condition. • The management plan should be explicit in that minded dogs will not be kept overnight. • The management plan should restate the condition that minded dogs will not be permitted in the rear yard of the property and that toilet breaks and exercise will be taken off the site. • It may be useful to attach a copy of the plan that delineates the area within the house where the dogs would be minded. • Reference in the management plan to the front door would need to be revised, as the area in which the dogs are to be confined would now be separated from the front door and the remainder of the house.
Orders |