Bink v ACT Planning and Land Authority & Anor (Administrative Review)
[2010] ACAT 31
•19 May 2010
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
JOHN AND SUE BINK v ACT PLANNING AND LAND AUTHORITY & SHAY KENNEDY (Administrative Review) [2010] ACAT 31
AT 5 of 2010
Catchwords: Administrative review- land and planning
law – dual occupancy – gross floor area – building
envelope – basement car parking
Legislation:Dog Control Act 1975 (ACT).
Domestic Animals Act 2000 (ACT) s 20, Division 2.2
Multi-Unit Housing Development Code
Tribunal: Mr B Hatch Senior Member
Date of Orders: 19 May 2010
Date of Reasons for Decision: 19 May 2010
IN THEAUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 5 of 2010
BETWEEN: JOHN AND SUE BINK
Applicant
AND: ACT PLANNING AND LAND AUTHORITY
Respondent
AND: SHAY KENNEDY
Party Joined
TRIBUNAL: Mr B Hatch Member
DATE: 19 May 2010
ORDERS
- That the decision under review is affirmed.
………………………………..
Mr B Hatch
Senior Member
REASONS FOR DECISION
- This is an application for review of a decision made on 15 January 2010 to approve the construction of a detached dwelling with double carport to the rear of an existing dwelling to form a dual occupancy and associated landscaping, paving and other site works.
- Conditions were imposed upon the approval. Those conditions were as follows:
(i)The provision of a 2.3metre high double lapped and capped fencing along the rear northern boundary;
(ii)The provision of double-glazing to the windows of Unit 2 facing the rear northern boundary;
(iii)4 metre setback between the existing residence and the dividing fence separating the dwellings; and
(iv)Suitable screen planning between the proposed hardstand for the existing dwelling and the front boundary, ensuring 2 metre by 2 metre sidelines from the driveway are maintained.
- In addition, an advisory note was required as follows:
D1
Future tenants of the proposed new dwelling must be notified of the existence of the licensed dog kennels on the adjoining property to the rear of the block prior to occupation of the development.
- The approval in question is with respect to Block 29 Section 114 in Monash. That block currently contains a modest cottage towards the front of the block. The Applicants live at Block 2 of Section 114. The backyards of these two blocks have a common boundary with the Applicant’s block being to the north and the subject block being to the south.
- The Applicants have lived in their house in Monash since 1979. At that time, Monash was a new suburb and the Applicants deliberately chose to buy in that area in order to enjoy the large blocks of land and to be away from the older inner parts of Canberra. For almost the entirety of the time the Applicants have lived in Monash they have had dogs, in particular basset hounds. Since 1994, the Applicants have had a licence to allow them to have up to eight dogs at their house. The Applicants are not breeders of dogs but rather their interest is in the showing of dogs and Mr Bink is regarded as a leading dog judge not only in Australia but internationally.
- In three decades, the Applicants say they have not had one complaint with respect to the dogs they have kept at their house. Having been on a view to the proposed site of the development and the Applicants block, it would appear that the Applicants go to a great deal of effort to maintain their house and their dog enclosures.
- The Applicants are concerned that an increased housing density will inevitably lead to complaints being made about their dogs with the possibility that the licence they currently enjoy could be revoked. In particular, the Applicants were concerned about the licencing requirements under the now repealed Dog Control Act 1975 (ACT). That Act required that the dog would be confined in a yard at least 9metres from a dwelling other than the keepers dwelling and at least 2metres from a boundary fence. While that was the requirement under the Dog Control Act 1975 (ACT), there is no such equivalent provision with respect to distances under the Domestic Animals Act 2000 (ACT). Pursuant to Division 2.2 of the Domestic Animals Act 2000 (ACT), the Registrar is not bound by set by set distances with respect to the keeping of dogs. Section 20 of the Domestic Animals Act 2000 (ACT) states as follows:
Section 20
Multiple dog licences – approval or refusal(1) If an application for a multiple dog licence is made under section 18
(Requirement to be licensed), the registrar must—
(a) approve the issue of a licence; or
(b) refuse to approve the issue of a licence.
(2) The registrar must refuse to issue a multiple dog licence unless
satisfied that—
(a) the yard and associated facilities are adequately ventilated and constructed in a way to allow them to be kept in a sanitary condition; and
(b) appropriate arrangements exist for the sanitary disposal of waste; and
(c) the applicant can otherwise comply with the requirements of the Animal Welfare Act 1992 and any approved code of practice under that Act.
(3) In making a decision under this section, the registrar must consider the following:
(a) the number and kind of dogs to which the application relates;
(b) the size and nature of the premises where the dogs are proposed to be kept;
(c) the security of the premises;
(c) the suitability of facilities for keeping the dogs on the premises;
(d) the potential impact on the occupiers of neighbouring premises;
(e) any conviction or finding of guilty of the applicant within the last 10 years against a law of a Territory or State for an offence relating to the welfare, keeping or control of an animal.
(4) Subsection (3) does not limit the matters the registrar may consider.
- The Applicants clearly have concerns that a dwelling being built reasonably close to their own block and dog enclosures may result in complaints being made with respect to the keeping of the dogs. That in itself is not sufficient to refuse approval to build the dwelling. Any interested persons, such as a neighbor, could have at any stage in the last thirty years have made a complaint with respect to the Applicants keeping dogs. According to the Applicants, that has never occurred. The conditions imposed on this development take into account some of the concerns of the Applicants.
- In particular, the development is required to have a lapped and capped fence of 2.3metres, which is considerably higher than a standard residential fence. In addition, the development is required to have double-glazing to the windows facing the Applicants house and dog enclosures. In that regard, I note that the party joined, Mr Kennedy, who is the developer, stated that the practical result of such a condition was that all windows to the development would be double-glazed, no doubt, as one standard type of window for the new house is simpler and no more expensive than having two different types of windows.
- The Respondent went to some effort during the hearing to go through the relevant rules in the Multi Unit Housing Development Code in order to show that the proposed development was compliant. I accept that the development is compliant.
- The Applicants raised other issues such as loss of property values and noise from motor cars. Property values is not something this Tribunal can take into account. Noise from motor vehicles driving into and from the carport of the new dwelling are a normal part of urban living. The plans show nothing out of the ordinary in relation to parking for motor cars and I do not find that this is a relevant issue.
- It is worth making one final note in respect to the condition which is stated to be an advisory notice in relation to advising tenants of the new dwelling about the dogs. There is no requirement for such an advisory notice to be given. I made the comment during the hearing that government departments are accused of having an unnecessarily rules based attitude without taking into account individual requirements. On this occasion, there has been an attempt to take into account some individual requirements when there is no legislative basis upon which it could be done and no way by which such a condition could be enforced. While I can understand the desire to be helpful in this way, I do not consider that it is necessarily helpful in the longer term for such sort of advisory notices to be suggested.
- I affirm the decision under review.
………………………………..
Mr B Hatch
Senior Member
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Tribunal Staff
PART A FILE NO: AT 10/5
APPLICANT: JOHN AND SUE BINK
RESPONDENT: ACT PLANNING AND LAND AUTHORITY
PARTY JOINED: SHAY KENNEDY
COUNSEL APPEARING: N/A
SOLICITORS: APPLICANT: N\A
RESPONDENT: MR HOUSEWELL & MS TOMLIS
TRIBUNAL MEMBER/S: Mr B Hatch Senior Member
DATE/S OF HEARING: 4 May 2010 PLACE: CANBERRA
DATE/S OF DECISION: 19 May 2010 PLACE: CANBERRA
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )
COMMENTS:
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