Blackman v Dungog Shire Council

[2024] NSWLEC 1792

Land and Environment Court

New South Wales

Medium Neutral Citation:

Blackman v Dungog Shire Council [2024] NSWLEC 1792

Hearing dates:

5-6 December 2024

Date of orders:

9 December 2024

Decision date:

09 December 2024

Jurisdiction:

Class 1

Before:

Walsh C

Decision:

The Court orders:

(1) The appeal is dismissed.

(2) Development Application No. DA 128/2023 for a boarding or training establishment comprising 28 breeding dogs at 241 Fishers Hill Road, Fishers Hill is determined by way of refusal.

(3) The exhibits are returned except for Exhibits 4, A-C, which are retained.

Catchwords:

APPEAL – development application – dog breeding establishment – noise amenity considerations – visual amenity considerations

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 8.7

Land and Environment Court Act 1979, s 34

Protection of the Environment Operations Act 1997

Dungog Local Environmental Plan 2014, cl 6.12,

Cases Cited:

Jonah Pty Limited v Pittwater Council (2006) 144 LGERA 40; [2006] NSWLEC 99

Renaldo Plus 3 Pty Ltd v Hurstville City Council [2005] NSWLEC 315

Texts Cited:

Dungog Development Control Plan 2013

NSW Environment Protection Authority, Noise Guide for Local Government 2023

NSW Environment Protection Authority, Noise Policy for Industry 2017

Category:

Principal judgment

Parties:

Cherilyne Blackman (First Applicant)
Frederick Blackman (Second Applicant)
Dungog Shire Council (Respondent)

Representation:

Counsel:
N Hammond (Applicants)
M Harker (Respondent)

Solicitors:
SWS Lawyers (Applicants)
Sparke Helmore Lawyers (Respondent)

File Number(s):

2024/270130

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This judgment relates to a Class 1 appeal under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by Dungog Shire Council (Council) of Development Application DA 128/2023 (DA) for “an animal boarding or training establishment (dog breeding)”.

Site and setting

2. The development is proposed on Lot 1 DP 794530 known as 241 Fishers Hill Road, Fishers Hill (site).

3. The locality is generally comprised of large rural lots with dwellings and associated agricultural uses.

Procedural background

4. This contested hearing comes before me after I had previously been delegated to conduct a conciliation conference in relation to the appeal under s 34(1) of the Land and Environment Court Act 1979. The conciliation conference commenced on 25 November 2024, with a site inspection and the hearing of a number of objecting submissions. Council's bundle of documents (Ex 1) also included documentation in relation to objecting submissions (Ex 1, Tabs 23, 25, 27, 28-34).

5. During a subsequent case management appearance on 3 December 2024, after the conciliation conference had been terminated, the parties agreed that the evidence from the conciliation conference would be admissible in these hearing proceedings.

6. There is no dispute that dog kennels operate at the site now and have done for a number of years.

7. While the matter was listed for hearing over two days, much of Day One was spent in an iterative process, where the applicant prepared amendments to the application and responsive expert reports where prepared. I note that at the commencement of Day Two of the proceedings, Council advised the Court that it had agreed to the applicants’ application for certain final amendments to the DA, including a final Noise Impact Assessment (prepared by Benbow Environmental and dated 6 December 2024 (NIA)) and a final Noise Plan of Management (also prepared by Benbow Environmental and dated 6 December 2024 (NPoM)).

Proposal

8. The proposal before me now is best understood from a number of documents which together were marked as Ex C in the proceedings. I will nominate the content of particular reference to my findings here by reference to Tab numbers within Ex C:

• Tab 5 - Vegetation Screening Plan showing “dwarf lilly pilly” planting around a proposed fence (the author of this document is not cited and there is no identifying date)

• Tab 6 - Visual Impact Assessment (dated 3 December 2024 and prepared by SWS Lawyers)

• Tab 7 - Set Of Architectural Plans (relevantly including):

• Sheet 1 - Location Plan - prepared by Argent Design dated 4 December 2024, and showing distances to some neighbouring residences.

• Sheet 2 - Site Plan - prepared by Argent Design dated 4 December 2024, and showing the essential layout (essentially reproduced at Figure 1).

• Sheet 5 - also titled Site Plan but indicating a more detailed layout of the kennel area and environs and including a Kennel’s Perspective - prepared by Argent Design dated 30 November 2024 (essentially reproduced at Figure 2).

• Sheet 6 - Kennel Block Elevations dated 10 July 2023-prepared by Sorensen in Design And Planning.

• Tab 8 – Kumfi Kennels Product details.

• Tab 10 – NPoM, referenced above at [6].

• Tab 11 – NIA, referenced above at [6].

9. Some specific characteristics of the proposal are as follows:

• Maximum 28 dogs (20 female and eight male)

• Dogs to be kept in an enclosed area to the immediate south of an existing residence on the site. The dog’s area would be surrounded by a 3 metres (m) high lapped and capped fence. The enclosure adjacent to the residents would be in the form of the “solid, transparent fence”.

• Within the 3m high fence enclosed area there are different identified areas which would be occupied by the dogs. Internal fencing would separate female and male exercise yards. The separation would be in the form of a 2m timber lapped and capped fence.

Figure 1 - Site plan

• There would be two female dog kennel “blocks” and a single male dog kennel block. The blocks have four identified areas: (1) enclosed kennels, (2) partially enclosed pens (3) race or pathway and (4) fenced yard which abuts the exercise yards. See Figure 2.

Figure 2 - Kennel areas

• The intention is that enclosing walls (at least to the required height) would mean the dogs within one kennel would not “have usual sightings of dogs in adjoining kennels” (NPoM, p 2)

Planning provisions

10. The site is zoned RU1 Primary Production under Dungog Local Environmental Plan 2014 (DLEP). 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 recreational and tourist activities that are compatible with the agricultural, environmental and conservation value of the land.

• To promote the rural amenity and scenic landscape values of the area and prevent the silhouetting of unsympathetic development on ridgelines.

11. Dungog Development Control Plan No 1 (DDCP) also applies and is referenced below.

Issues

12. The contentions raised by Council in this matter can be synthesised down into two issues: (1) noise impacts associated with the dogs and (2) visual impact of the proposed noise mitigation fencing. A jurisdictional factor arises in relation to the second issue which I will explain below.

Noise

13. The applicant’s NIA finds that the proposal meets reasonable noise controls provided a series of “mitigation measures” are adopted. These measures are categorised into two aspects: “site design” and “management practices” (NIA p 46). The site design measures essentially refer to the various provisions for fencing and construction and enclosure particulars relating to the accommodation of the dogs. The management practices are best understood from the NPoM.

14. Expert acoustic evidence in these proceedings was provided by R Benbow (appointed by the applicant) and A Shearer (appointed by Council). The initial expert report was marked Ex 3 and a supplementary expert report was marked Ex 7.

15. While Ex 3 and Ex 7 may not indicate this directly, both of the noise experts confirmed orally that provided the proposed mitigation measures were adopted the proposal was satisfactory on noise grounds. There were some provisos, or points of explanation, which related to this expert advice, as follows:

• The experts agreed the NIA involved a conservative approach.

• The NIA indicates that the NPoM must be adopted in full (NIA p ii)

• In Ex 7, the acoustic experts gave consideration to the Court’s planning principle relating to plans of management in Renaldo Plus 3 Pty Limited v Hurstville City Council [2005] NSWLEC 315 (Renaldo). Having regard to [54] Q4 in Renaldo, the acoustic experts indicated in Ex 7 an agreed position that absolute compliance with the NPoM was necessary to achieve an acceptable outcome (Ex 7, p 24). Mr Benbow retracted somewhat from this in his oral evidence.

16. The proposed NPoM is an important aspect of the proposal. The following further details can be outlined:

• The “fenced yard” would be a grassed area “used to place two or three dogs at a time as kennels are being cleaned all four areas for dogs to sit” (NPoM, p 2)

• Dogs would be in the enclosed and noise ensure related kennel structures between 6 PM and 7 AM following morning.

• Only 10 dogs may use the exercise yard area at any one time (NPoM, p 2), including a maximum of five female dogs in the female yard (NPoM, p 6), and therefore five in the male exercise yard.

17. There are provisions indicating that there would be a quick response to excessive barking and excessively noisy dogs would be removed to a quieter place until they settle. Such instances would be documented (NPoM, p 12).

18. Under a section of the NPoM entitled “kennels operational times” there are tasks established for two persons. Person One would attend to the male kennels (up to five dogs) and then when this work was complete would assist Person Two who was otherwise responsible for the female kennels (up to 20 adult females). I reproduce the NPoM’s program for Person Two:

8-8.30am-	Let females from 2 kennels out into the fenced yard and clean/wash their kennels and self-waterers.
8.30/9am	Bring females that are out back into their enclosed pan/kennel and let females from 2 more kennels out as above and continue until all kennels cleaned/washed but leave out males from the last 2 kennels.
10.30am	Rotate 5 females (in 4 sessions) into the outside female exercise yard over the rest of the day stop ensuring that only 5 female dogs at any one time are in the female exercise yard.
4.30pm	Return all dogs from female exercise yard into their enclosed pen/kennel
Close all kennel doors then feed dogs.
6 [pm]	All dogs closed in kennels by 6 PM

19. In regard to feeding, dogs would be secured in kennels during feeding times “the preparation will occur away from kennels to reduce auditory stimuli, and feeding will be synchronised to minimise any potential barking” (Section 4.3 of NPoM).

20. In regard to compliance assessment, proposed conditions of consent indicate that the facility operator would pay for an independent noise assessment which would be commissioned by Council. Required changes to the NPoM would be implemented, subsequently.

Evaluation and findings

Not satisfied that noise impact assessment adopts “conservative approach”

21. A point of reasoning for both experts when certain points of dispute were raised with regard to the NIA was that minor discrepancies, inconsistencies or the like, should not be seen as a problem because of the conservative approach which had been adopted. However on the material before me, I am not satisfied that the NIA adopts a particularly conservative approach. There are a number of reasons for this.

Adopted daytime Rating Background noise Level (RBL) is not conservative

22. The first point is in regard to the adopted rating background noise level (RBLs) which are important to the establishment of the project noise level criteria (NIA p 30). A brief explanation of terms is required. The NIA (p 17 and Table 3-2), documents assessment background levels (ABLs) for each of the ten days that unattended noise monitoring occurred. The data is broken into day/evening/night periods. Aided by these ABLs, RBLs are then adopted, providing for a single-figure background noise level, again for each of the identified assessment periods (day/evening/night). For the acoustic experts, a key argument in support of a view that a conservative approach was adopted was that in the adoption of RBLs the minimum ABL over (in this case ten days of measurement) was adopted as an RBL, whereas the EPA’s Noise Policy for Industry (NPI) indicates that the mean of these ABLs should be adopted for RBLs (according to oral evidence of Mr Shearer and not disputed). I thought Mr Shearer indicated this might have accounted for 4-5 dBA difference.

23. The purpose of this kind of monitoring is to establish whether site noise might unreasonably disturb nearby noise receptors (ie the neighbours). However, when I examine the locational particulars of the unattended noise monitoring, it is apparent that all of the monitoring locations occurred on the site itself (ie rather than on or near to the potential noise receptors, which in this case would include the objectors’ properties). The applicant indicated, and I understand it to be the case, that the objecting residents denied requests from the applicant to access their properties for noise monitoring.

24. I can also mention that in this evaluation, it seems to me a key period for sensitivity analysis is the “day” period. This is because the dogs would be entirely locked away in the secured kennels for the evening and night periods. Thus, for noise calculation purposes at least, there is a relatively straightforward means of noise attenuation “at the source”. This is through a focus on the construction and sealing up of the kennels and ensuring the dogs stay inside from 6pm to 7am (ie the period covered by the evening/night periods). With this in mind, my main point of attention here is towards the day time operation, when the noise sources (barking dogs) are more diffuse and less easy to manage.

25. In fact, unattended noise monitoring was undertaken somewhat close to one of the neighbouring residences (monitoring location L2 - at the site’s boundary with receiver R7 at 237 Fishers Hill Road, Fishers Hill). According to the NIA, the median ABL (and nominal RBL under the NPI) for the day period is 28 dB(A) at L2 and the minimum ABL across the measurement period is 27 dB(A). This 27 dB(A) figure was adopted as the RBL for the project during the day period. So insofar as the measurement nearest to the place of residence of an objector there is only 1 dB(A), generally argued as negligible, which might be available to support the suggestion of a conservative approach to RBL adoption for the, for me, important “day” period of operation when there is less capacity to manage barking at the source.

26. That the objecting residents denial of access for noise monitoring, for me, provides only a partial explanation why sampling in locations more representative of the physical setting of the neighbours was not undertaken. The applicant may have been able to support its case better if it were able to do some more representative monitoring. I also find it concerning that the calculation of ABLs (and thus ultimate RBLs) was essentially based on measurement from within the site and the premises of an operational dog kennel. The NIA indicates (p 16), without sufficient supportive explanation it seemed to me, that:

“While the loggers were affected by noise from the site the RBL is not considered affected by noise from dogs barking”

27. In this respect, it is also notable that it was L2, which was the monitoring location within the site which was furthest from the kennels (and nearest a neighbouring residence), that had the lowest ABL out of the three monitoring locations L1-L3 (NIA, p 14). There is some possibility at least that measurement further away again from the kennels would give a lower ABL. There may be other factors involved here of course, but there seems to be little objective certainty about ABLs and RBLs in the general locality away from the dog kennel site, or for potentially noise affected neighbours in particular. In turn, I am not at all convinced that the adopted RBL provides a conservative approach. When considering local resident impact, the NIA itself indicated (p 20):

“Although some residences are significantly distant from the kennels, complaints from these locations may require additional extended studies to confirm the noise impacts. “

Adjustment for annoyance factor is not conservative

28. The NIA’s adjustment for the annoyance factor for dog barking was limited to the night and evening periods. For these periods, a five dB(A) penalty was applied. When I queried why it was not also reasonable to apply such a penalty for the day period, mindful that many of the objecting submissions raised annoyance associated with the particulars of the dog barking noise in their complaints, including annoyance during the daytime, it was indicated by the experts jointly that the NPI only applies it to night and evening periods.

Adjustment for wind effects is not conservative

29. I, then, turn to the adjustments for wind effect. The NIA (Table 4.1) indicates it adopts the position that where “noise enhancing meteorological conditions occur for 30% or more of a period or season” then an adjustment is required. The experts agreed in oral evidence this control arises in the NPI. The 30% trigger was a regular feature of the night period. But otherwise, due to wind direction, was only triggered for receiver sites R7 and R10 during the winter period. I note and agree with Council’s concern that a receiver site scoring, relevantly, a 29% did not receive any adjustment. Generally, there was no principles-based explanation why some other trigger point, eg 20%, might not be the relevant “conservative” factor that should be adopted in this particular rural setting, of acknowledged very low background noise.

Source point for dog barking not conservative

30. The source point for noise calculation under the applicant’s Scenario 4 (NIA, p 34) did not adopt a worse case location for dog barking within the male exercise yard. Figure 6-4 in the NIA shows the relevant noise source locations within the male exercise yard. While there is a “cut and paste” error in the figure (it was agreed during the proceedings that the relevant locations have a purple mark within a white circle), the elected noise source locations for dogs within the exercise yard (ie for the purposes of calculation of effect) are around the centre of the yard, or to the north if anything.

31. The site plan accompanying the application included contour levels (see Figure 1 but more discernible in the originals). These levels indicate the identified noise source positions as being located at about RL 41, whereas the worst case reduced level for actual barking would be at about RL 42.5 (not allowing in either case for the adopted 0.5m dog barking height as indicated by Mr Benbow). This would be significant for the northern receiver locations (R2 - 806 Summer Hill Road and R3 – 283 Fishers Hill Road), noting the 3m fencing along the northern boundary in this area seems to run along the RL 40 contour line. Together, this means that if a dog is barking at the high point of the exercise yard near the southern fence this source elevation would be similar to the elevation of the 3m high fence along the southern boundary. That is to say that the 3m fence would be about level with the source barking, meaning the effect of the fencing would be minimal. While I acknowledge Mr Shearer’s point that noise mapping acknowledged this to some extent. My point here is simply that the worst or near worse case, when there is virtually no attenuation from fencing, was not adopted for measurement purposes, something a conservative approach might suggest as appropriate.

Insufficient consideration of Dungog Development Control Plan controls and over-reliance on Noise Policy for Industry

32. DDCP requires that dogs not generate “offensive noise” as defined under the Protection of the Environment Operations Act 1997 (POEO Act). The Dictionary to the POEO Act provides, relevantly, that:

offensive noise means noise—

(a) that, by reason of its level, nature, character or quality, or the time at which it is made, or any other circumstances—

(i) is harmful to (or is likely to be harmful to) a person who is outside the premises from which it is emitted, or

(ii) interferes unreasonably with (or is likely to interfere unreasonably with) the comfort or repose of a person who is outside the premises from which it is emitted, or …

33. The NIA indicates it is mindful of DDCP, and that (p 28):

“Reference to the NPI does not imply that the annoyance assessment criteria in the NPI is being applied to this project”.

34. The NIA (p 28) indicates that it has “adopted the definition of offensive or intrusive noise as outlined in Section 2.2.1 Intrusive Noise of the Noise Guide for Local Government 2023”. There is no explanation why the definition in the POEO Act was not adopted. In addition, while Section 2.2 of the Noise Guide for Local Government 2023 is concerned with “barking dogs”, Section 2.2.1 does not provide any relevant definition.

35. In any event, it seems that some quite critical provisions of the NPI have been carried forward into this evaluation. These include adoption of a zero annoyance penalty during the day period associated with dog barking (see [28]), and adoption of the 30% control relating to wind effects (see [29]).

36. It seems to me that the lay evidence that noise from the existing operation of the existing kennels has been generating “offensive noise” was inadequately considered and refuted (Jonah Pty Limited v Pittwater Council (2006) 144 LGERA 40; [2006] NSWLEC 99 at par 38). A more empirically based response, which either disproved through measurement or accepted the lay evidence from objectors and responded to it, seems to me to be more appropriate than following the NPI without explanation here. Much of this lay evidence indicated that offensive noise was caused even associated with a single dog barking during daytime periods, which refutes the argument that a reduction in dog numbers of itself might be satisfactory. It is particularly concerning with respect to the setting for R3 (where an objector who provide very detailed noise log-based complaints), where it would seem a male dog’s bark from up higher within the exercise yard would hardly be mitigated by the 3m fence at all (see [30]).

37. There is also some consideration of annoying noise in Section 3.3.3 of the NIA. Here a statement was made that “noise in a rural area is generally considered annoying if it disrupts the natural peace, as in the case of persistent, clearly audible dog barking”. An aspiration to “determine if the barking qualifies as legally “annoying” or “offensive” “ under the POEO Act was indicated. This section of the report seemed to refer to measured noise levels at some of the receiver locations (R1, R2 and R7), it is not clear when this occurred. Detail was provided on measured noise levels and “subjective responses” to certain noise events (eg “R1 – 41-42 dB(A), 3 dogs barking clearly audible – annoying”, and noise readings of “R7 – 34 dB(A), 1-3 dogs, no audible barking – not annoying, etc). A conclusion was made that 15 minutes of barking was considered intrusive and offensive. This section seemed incomplete, did not link to the direct lay evidence provided by locals and did not cohere well with the rest of the NIA.

Noise Plan of Management deficiencies

38. The first point I make here is the lack of a clear line of sight in regard to management accountability for ongoing compliance. Section 8 of the PoM is concerned with the compliance with regulations and standards. The terms of the provisions are particular concerned with training of staff. This is of course important. But there is a lack of recognition of the central role of the operator in ensuring an acceptable outcome. A statement to this effect is missing. My concern in this respect also relates to the provisions at Section 9.2 relating to “noise complaint and resolution procedure”. There is provision for “a phone number and email address is a point of contact to nearby affected residents”. There is no indication, or commitment to for example, of availability of someone to answer the phone and what level of responsibility they may have to react quickly, especially if an incident were to occur late at night.

39. A second point links staffing, their program of action and assumptions in relation to dogs and barking. The fencing separating the male and female dogs would prevent visual contact. While the following commentary is included in the NIA, it relates to operational aspects (NIA, p i):

“The separation fence [between the male and female dogs] will be a 2 m high lapped and capped timber construction. This will prevent female dogs in season from causing male dogs to react.”

40. My initial concern here is that there is no expert evidence to support the conclusion that lack of visual contact with an in-season female dog would prevent a male dog from the other side of the fence from reacting. Not professing any expert knowledge at all in this field, I would think it a common perception that the scent of the female dog would also be a factor.

41. In any event, the concern is the scenario where there is extensive reaction between dogs in the exercise yards, after some stimuli (even the initial barking of a single dog – the trigger for action by staff relates to only instances where two dogs are barking simultaneously ) and then there is a need for reaction from Person One or Person Two who is already tied up cleaning the kennels (one could imagine this to be a little involved, at least after two or three dogs have been in kennels for thirteen hours) and managing other aspects of the rotation of the dogs.

42. Generally, I could see little explicit commitment to staffing levels on site, apart from the reference to “Person One” and “Person Two” in Section 3 of the PoM concerned with “Kennels operational times” and a reference to occupants of the residence in a traffic related section. It is readily perceivable that situations might arise where these two individuals have their hands full (especially up to the point where Person One is indicated to be available to assist Person Two (NPoM, p 5). This together supports the position argued by Council that Section 6 (“response protocol to excessive barking events”) is insufficient in lacking the actual “early intervention plan” to prompt staff to respond quickly.

Renaldo planning principles

43. The Renaldo principles have been referenced above: [15]. I quote below from Renaldo at [54]:

“54 In considering whether a Management Plan is appropriate for a particular use and situation, the following questions should be considered:

1. Do the requirements in the Management Plan relate to the proposed use and complement any conditions of approval?

2. Do the requirements in the Management Plan require people to act in a manner that would be unlikely or unreasonable in the circumstances of the case?

3. Can the source of any breaches of the Management Plan be readily identified to allow for any enforcement action?

4. Do the requirements in the Management Plan require absolute compliance to achieve an acceptable outcome?

5. Can the people the subject of the Management Plan be reasonably expected to know of its requirements?

6. Is the Management Plan to be enforced as a condition of consent?

7. Does the Management Plan contain complaint management procedures?

8. Is there a procedure for updating and changing the Management Plan, including the advertising of any changes?”

44. Two of the Renaldo questions warrant attention here.

45. I have noted above that the acoustic experts indicated that, mindful of Renaldo Q4, the experts believe that absolute compliance was required to achieve an acceptable outcome. I note here that Mr Benbow in his oral evidence distanced himself somewhat from evidence in his written report. His oral evidence was that he was unsure of how to interpret “absolute compliance”.

46. The applicant submitted that, any opinion of the acoustic experts in regard to Q4 is not of great moment because the question is really directed to itself. In this instance, it is important to me that, at least, Mr Shearer took the view that absolute compliance was needed. That is, Mr Shearer’s commitment to the view that the proposal was reasonable was contingent on achievement of absolute compliance with the NPoM. I find elsewhere that both the achievement of absolute compliance with the NPoM, and the completeness of the NPoM itself are problematic.

47. My second concern is related to, but not precisely in accordance with, Renaldo Q3. There is a concern about what happens if there are breaches to the NPoM and offensive noise is generated. There is evidence of the adverse impact of offensive noise associated with dog barking already. The site is not easily accessible for regulatory authorities to attend for the purposes of effecting compliance. This concern links in with my criticism of the NPoM in regard to what I might call executive accountability for performance.

48. On the basis of my comments above, I am not convinced that the NPoM as drafted is adequate for the particular use and setting.

Visual impact of fencing and related issues

49. Of relevance to this issue is the provisions of cl 6.12 of DLEP:

6.12   Protection of rural landscapes in rural and conservation zones

(1)  The objective of this clause is to protect the rural amenity and character of the land to which this clause applies by managing visual impact.

…

(3)  Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that—

(a)  any buildings that form part of the development will blend into the landscape and not become silhouetted on a ridgeline, and

(b)  the design, bulk and colours of any such buildings will be compatible with the surrounding landscape.

50. The proposal involves construction of lapped and capped fences of 3m in height, which according to the expert town planning evidence would run for a distance of about 350m. Mr O’Connor (town planning expert appointed by Council) believes these types of fences are not common within rural areas. He is critical of the proposed landscaping which is intended to screen sections of the 3m fence. He indicated that (Ex 2, p 7):

“The amended site plan shows the 3m high acoustic fence in very close proximity to a number of existing trees on the subject site. There is no arborist report accompanying the amended application to explain whether the health of these trees is likely to be impacted by the construction and ongoing existence of the acoustic fence in such close proximity to these trees. This fence could result in tree loss and/or these trees could cause damage to the fence in the future and impact the stability of the fence.

Similarly there is no ecological report accompanying the amended application assessing the biodiversity value of these trees and advising whether they provide nesting opportunities for native fauna. The loss of any trees may need to be compensated by way of the planting of additional trees elsewhere on the subject site.”

51. Mr O’Connor was also concerned about wind loads for the fencing (Ex 2, p 7):

“[fencing] will also be likely to be subjected to significant wind loads during periods of unstable weather weather. There are no engineering details provided with the amended application which demonstrate that the proposed fence will be constructed in a manner that will stand the likely wind loads”.

52. Mr O’Connor was also critical about the visual impact assessment accompanying the application (Ex 2, p 5):

“The visual impact assessment is also very basic and has been prepared by SWS lawyer rather than by a landscape architect or someone qualified to prepare such assessments. No details of the landscape setting and character are provided to help the visual assessment and address the need for amelioration of any visual impacts. At paragraph 12 there is a statement that no trees need to be removed and that there will be no adverse impact on the root zone of any existing native vegetation. However there is no arborist report to verify the credibility of this assessment. I therefore have little confidence in the accuracy of the conclusions drawn in the assessment.”

53. Mr O Connor’s conclusion was that he could not be certain that the provisions of cl 6.12 of DLEP have been satisfied. There was no expert town planning evidence provided (ie otherwise by another expert).

54. In closing submissions, the applicant argued that Mr O’Connor’s concerns could be addressed through conditions of consent relating to the preparation of a vegetation management plan, and other detailing. At the point of closing submissions, the applicant also submitted a condition involving participation by an arborist, as follows (Ex D):

“An AQF Level 3 Arborist is to provide a report to Council that confirms that there will be no adverse impact on the existing trees on the property as a result of the proposed installation of the 3 m lapped and capped outer perimeter fence”

55. Further in relation to visual impact assessment, and in noting that there was no contesting town planning evidence put against Mr O’Connor, the applicant argued that the Court can inform itself in relation to this topic a visual impact. An observation was made that there is “very limited viewing opportunities from the public domain or from adjoining properties” and that Mr O’Connor’s concerns “can be addressed by conditions requiring mature plantings” and other conditions (Applicant’s Submissions, 6 December 2024 pars 18-20).

Insufficient evidence for a finding of satisfaction with respect to cl 6.12(3) of DLEP

56. Lay submissions indicated that there is a ready line of sight between properties fronting Summer Hill Road, to the west of Patterson River and the existing kennels on the site. No other of the lay submissions claimed a sight line to the kennels. For the sake of it, I will assume that the only view corridor of concern is from the south and the Summer Hill Road environs.

57. It is not possible for me to make a finding that I am satisfied that the proposed fencing, even with landscaping over time, will blend into the landscape, against expert evidence, when I have not: (1) been asked to inspect from Summer Hill Road itself or the residences which front it, (2) received any specialist advice to suggest such a finding was available to me, or (3) been convinced through cross examination of the expert evidence of an alternative view. The applicant’s visual impact assessment indicates the fencing would be about 650 m to the north-east of Summer Hill Road. There is a somewhat indistinct photograph provided but no attempt to provide a visual representation or photomontage of the fencing, and no reference to the Courts: “Policy: Use of Photomontages and Visualisation Tools”. There is also the possibility of some problems arising (as raised by Mr O’Connor) with respect to: impact on existing trees and lack of any arborist report, ecological implications of any tree loss, failure of acoustic fencing due to wind loads.

58. I am not satisfied that the applicant’s proposed condition relating to the arborist participation provides a reasonable response to the matters raised by Mr O’Connor. The wording of the applicant’s condition prejudges an outcome of the arborist’s analysis of the implication of fencing, which remains unknown as far as Mr O’Connor is concerned, which I have no cause not to rely on.

Conclusion

59. I do note the applicant’s closing submissions in regard to the references from local veterinarians and others concerned with dog welfare, speaking in support of the existing operation on site. This speaks well for that aspect of the existing operation but is of little or no relevance as I evaluate a DA which runs with the land.

60. Based on the above evaluation, the applicant has not made the case that the proposed development will be satisfactory in regard to acoustic impacts. While many particulars have been explained, there are two overview reasons for this: (1) the NIA is unconvincing that, even with implementation of the NPoM, the proposal would not generate offensive noise as defined under the POEO Act, a reasonable test for the proposal in this setting, and (2) I am not convinced that the NPoM as drafted is adequate for the particular use and setting.

61. In any event, the power to grant consent to the DA is unavailable to me having regard to cl 6.12(3) of DLEP. This is because, on the evidence, I cannot be satisfied that the necessary acoustic fencing would “blend into the landscape”.

Orders

62. The Court orders:

1. The appeal is dismissed.

2. Development Application No. DA 128/2023 for a boarding or training establishment comprising 28 breeding dogs at 241 Fishers Hill Road, Fishers Hill is determined by way of refusal.

3. The exhibits are returned except for Exhibits 4, A-C, which are retained.

P Walsh

Commissioner of the Court

**********

Decision last updated: 09 December 2024