Chipperfield v Maitland City Council

[2012] NSWLEC 1115

Land and Environment Court

New South Wales

Medium Neutral Citation:	Chipperfield v Maitland City Council [2012] NSWLEC 1115
Hearing dates:	8 May 2012
Decision date:	08 May 2012
Jurisdiction:	Class 1
Before:	Fakes C
Decision:	Appeal upheld
Catchwords:	CONSENT ORDERS: Development application - Animal establishment - Kennel and Cattery; acoustic issues
Legislation Cited:	Environmental Planning & Assessment Act 1979 Maitland Local Environmental Plan 1993 Maitland Local Environmental Plan 2011
Category:	Principal judgment
Parties:	R & H Chipperfield (Applicants) Maitland City Council (Respondent)
Representation:	Applicant: Mr G Long (Solicitor) Respondent: Mr M Bonanno (Solicitor) Applicant: Grant Long Law & Planning Respondent: Lindsay Taylor Lawyers
File Number(s):	10215 of 2012

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

1. COMMISSIONER: This is an appeal against Maitland City Council's refusal of a development application for an Animal Establishment - Kennel and Cattery on land known as 4 Krystyna Avenue, Windella.

1. The proposed development comprises two steel-framed sheds, exercise yards, administration offices, carpark and access roads. The facility is designed for a maximum capacity of 42 dogs and 40 cats.

1. The parties have resolved the outstanding matters between them, principally acoustic, and seek the Court to grant consent orders.

The hearing

1. The hearing commenced on site and many local residents attended. In addition to written submissions, the Court had the benefit of hearing from several nearby long-term residents whose chief concerns can be summarised as:

• Noise impacts on local residents who chose to live in a quiet rural-residential environment;
• Potential impacts on a proposed new residential subdivision that adjoins the site;
• Traffic and related safety matters (particularly in relation to school bus routes) that may arise as clients, who are unfamiliar with the roads, drop off and pick up their pets; and
• Operational aspects of running a professional animal boarding facility.

1. One non-local objector related his experiences of living within a kilometre of a kennel; specifically the insufficient noise amelioration afforded by a dense planting of trees.

1. The residents engaged Mr Richard Bennett, a consultant town planner to prepare a submission and address the Court. Mr Bennett listed criteria he considered to be appropriate when siting such a facility; in essence, in his view, the end result should be a development that is not seen and not heard.

1. The location of the proposed kennel was inspected; the area was pegged out. The applicants' property is a 42.48 ha undulating block currently containing a dwelling, farm shed, dressage ring, dam and other ancillary structures. The survey plan shows the selected site is approximately 340 m from the entry off Krystyna Avenue and 281 m from the nearest neighbouring dwelling.

1. The site is located over the crest of a small ridge. The ridge separates the site from the area to the east that is proposed for future residential development. The sites for the proposed exercise yards fall gently to the north and south of the centrally located kennels/cattery. The outlook from the site is principally of rural land; the existing nearby residential subdivision was not visible.

1. The heights of the proposed acoustic walls were discussed in relation to the sloping site and the position of the kennels. As a consequence, condition 11 - Noise - has been amended to ensure that the height of all external walls are measured relative to the finished floor level of the kennels to accommodate the fall of the slope.

Planning controls

1. Turning to the planning controls, at the time of the lodgement of the application and its determination, Maitland Local Environmental Plan 1993 applied. The land was zoned 1(b) Secondary Rural Land and the proposed development was permissible with consent.

1. That LEP has been repealed and replaced with Maitland Local Environmental Plan 2011. The site is now zoned RU2 - Rural Lands and the proposed development remains permissible with consent. The short south-eastern boundary of the site adjoins a rural-residential subdivision (zone 1(c) in MLEP 1993). As noted earlier, there is a potential subdivision of land to the east - an area identified in the "Maitland Urban Settlement Strategy 2012 Edition" which appears to be in very preliminary stages of the approval process.

Traffic and safety

1. In regards to the traffic and safety concerns raised by the objectors, I note that consultants undertook a traffic impact study in September 2010. The council's internal assessment report concluded that the study was generally accurate. The assessing officer concluded that the proposal would not generate significant traffic issues to warrant refusal. I also not that council did not raise traffic as a contention.

Findings

1. While accepting local residents' concerns over safety, especially in relation to school buses, I agree with council's assessment officer that there are no planning or safety grounds for refusing the proposal on the basis of additional traffic. The site inspection showed what appeared to be an upgrading of the entry to the settlement of Windella off the New England Highway.

Noise

1. The key contention has been unacceptable noise from barking dogs. The sequence of acoustic reports is noted. There is now an agreed position between the parties' acoustic engineers on the appropriate modelling parameters and the recommended acoustic treatments to mitigate unacceptable noise. Condition 11 adopts the recommendations made in that report. As stated earlier, Condition 11 is amended to make all external wall heights relative to the finished floor level of the kennels.

1. On site, Mr Bennett raised the possibility of an additional condition for further noise monitoring at some time after commencement of operations. This has been accepted by the parties and will become Condition 11(d) - Noise Verification.

Findings

1. In regards to the public interest, while I acknowledge the valid concerns voiced by the residents about the potential impacts on their amenity of barking dogs, the proposed development is permissible within the zone. With the benefit of the site view, the noise amelioration measures are assisted by the topography. The acoustic experts have agreed on the acoustic treatments to be constructed, and again with the benefit of comments made by those on the site view, the acoustic conditions have been tightened. I am therefore as satisfied as I can be that the acoustic concerns have been dealt with and the proposal is acceptable.

1. I note that while the applicant offered to redesign the arrangement of the exercise yards to further minimise noise, such an amendment is not something capable of being readily resolved at this late stage of the hearing, however, it may be the basis of a future application.

Internal roads

1. The only area of disagreement between the parties is whether all internal access roads should be constructed in accordance with the standards prescribed in "Maitland City Council - Manual of Engineering Standards 2008" - clause 12.3.7 - Commercial and Industrial Parking and Access. These standards are consistent with the controls for construction requirements in cl 3.6 Part C11 - Vehicular Access & Car Parking of Maitland Development Control Plan (MDCP).

1. Mr Long for the applicants submits that a sealed road, as specified in condition 30, is appropriate for the section of internal road from Krystyna Avenue to the dwelling. However, beyond that, as specified in condition 28, while he accepts that the car park should be sealed, he considers a sealed road is not necessary. In his view, an all-weather gravel road, such as a nearby Telstra access road, would be sufficient. Therefore, he argues that condition 28 should be modified or deleted with condition 30 to remain.

1. Mr Bonanno for the council argues that there is a development standard for road construction that applies equally to this site as is does to any commercial development within the local government area. He contends that both conditions 28 and 30 should apply.

Findings

1. In this regard, I accept the council's position that the standards and controls noted in [18] should apply and conditions 28 and 30 shall be imposed. As noted during the hearing, the Telstra access track would have far less use than the internal road to commercial premises where regular and frequent use is anticipated.

Operational issues

1. Objectors questioned whether the facility would be operated in a professional manner. Amongst other things, condition 17 requires the applicants to submit a new and detailed Plan of Management (POM) to council prior to the issue of an occupation certificate. The POM is to demonstrate compliance with relevant industry guidelines and the NSW Animal Welfare Code of Practice.

Conclusions and orders

1. As required in these matters, the consent authority, in this case the Court, must consider the matters listed in s 79C of the Environmental Planning & Assessment Act 1979 (the Act).

1. I am satisfied that the proposal is consistent with the provisions of MLEP 2011 and is permissible. I am satisfied that the conditions imposed address the relevant development standards in MDCP and the concerns raised in the public interest.

1. Therefore I agree to the orders sought by the parties. The parties are directed to file a clean copy of the conditions, as amended during the hearing, both hard copy and electronically, by close of business 11 May 2012 for inclusion with the final orders.

1. By consent, the Orders of the Court are:

(1)   The appeal is upheld.

(2)   Development application No. 10-2653 for an Animal Establishment at 4 Krystyna Avenue Windella is approved subject to the conditions of consent in Annexure A.

(3)   Exhibits 4, 6 and 7 are returned.

_______________________

J Fakes

Commissioner of the Court

Decision last updated: 11 May 2012