Ghassibe J and Anor v Wingecarribee Shire Council
[2007] NSWLEC 431
•17 July 2007
Land and Environment Court
of New South Wales
CITATION: Ghassibe J and Anor v Wingecarribee Shire Council [2007] NSWLEC 431 PARTIES: APPLICANT:
John Ghassibe and Cheryl Ann Ghassibe
RESPONDENT:
Wingecarribee Shire CouncilFILE NUMBER(S): 10382 of 2007 CORAM: Watts C at 1 KEY ISSUES: Development Application :- Dog breeding facility;
noise impacts.LEGISLATION CITED: Wingecarribee Local Environmental Plan 1989, (WLEP)
Environmental Planning and Assessment Act 1979, ss 79C and 97DATES OF HEARING: 12/07/2007
DATE OF JUDGMENT:
17 July 2007LEGAL REPRESENTATIVES: APPLICANT:
Mr A J Seton, solicitor
SOLICITORS:
Marsdens Law GroupRESPONDENT:
Mr B Bilinsky, solicitor
SOLICITORS:
B Bilinsky and Co
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Watts C
17 July 2007
10382 of 2007 – John Ghassibe and Cheryl Ann Ghassibe v Wingecarribee Shire Council
JUDGMENT
1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of the (the council) to refuse a development application to establish a dog-breeding establishment at Lot 8, DP 263466, Nandi Road, Canyonleigh, in the Shire of Wingecarribee.
2 I visited the land in company with the parties on the morning of the first day of proceedings and I heard from a local resident Mr L Stewart.
3 I have concluded that the noise impacts would be sufficiently ameliorated if the recommendations of the acoustic engineer were implemented such that approval is warranted. There were no other principal contested issues.
The land
4 The land ‘Winmalee’ is situated on the southern side of Nandi Road, at Canyonleigh. However, vehicular access to the land is from Hawkshill Road, Canyonleigh.
5 The land is irregular in shape but generally rectangular and slopes down to the north. The northern boundary about 383m in length follows Nandi Road. The eastern and western side boundaries have lengths of 816.15m and 1,112.51m respectively. The southern boundary is 383.27m in length and the land area is about 40.02 hectares.
6 Erected on the land is a brick-veneer dwelling-house of late 2003 vintage; a metal shed; nine (9) dog runs constructed with a pipe frame and chain wire; an American-style barn (kennel block) measuring 10m x 10m containing 13 dog pens, and a smaller whelping shed measuring 3m x 6m. Four of the dog runs are 12m x 40m and five are 12m wide x 80m long. Each dog run contains a kennel made from sheet metal erected on a concrete slab. The shed contains dog washing facilities and pens for dogs and wastewater from dog washing is discharged on to bare ground.
7 The land is presently used as a dog breeding facility without development consent having been granted. The facility appears to accommodate around 60 greyhounds but council inspections have disclosed a greater number of greyhounds than this.
8 The locality is characterised by relatively large allotments of about 40 hectares with some smaller sized allotments interspersed.
9 The closest neighbours Ms P Mildwater and Mr K McCarthy occupy Lot 140, Hawkshill Road, Canyonleigh, that is a small lot immediately to the south of the land with a dwelling situated about 150m from the existing dog breeding facility. The second closest dwelling, occupied by Mr and Mrs Raiti, at Lot 61, Hawkshill Road, Canyonleigh. This dwelling is erected on a small lot, situated to the southeast around 250m from the dog breeding establishment (400m from the kennel block according to Mr Gauld). Mr Chippendale and Ms Coppleton live at Lot 141 Hawkshill Road, Canyonleigh, and their residence is about 400m from the kennel block.
10 Other residents live further afield and Mr and Mrs Stewart live at Lot 160 Hawkshill Road, Canyonleigh, around 1600m from the kennel block.
Relevant planning controls
Wingecarribee Local Environmental Plan 1989, (WLEP)
11 Under the provisions of the WLEP the land is zoned No 1(a) (Rural) and the proposal is permissible with consent. The WLEP contains no other relevant controls or development standards.
12 Clause 9(3) of the WLEP states that consent must not be granted unless the development is “…consistent with the objectives of the zone”. The land use table to Clause 9 provides objectives for the 1(a) Zone as follows:
(a) to provide suitable land for agricultural use;
(b) to regulate the subdivision of rural land to ensure that actual or potentially productive land is not withdrawn from production and to prevent the fragmentation of viable rural holdings, particularly in those areas designated as having prime crop and pasture potential;
(c) to ensure identified extractive resources and mineral deposits are not rendered sterile from incompatible land usage;
(d) to enable mining and extractive industry to occur in an environmentally acceptable manner;
(e) to ensure subdivision is designed to maximise the retention of natural vegetation and to minimise potential for significant alterations to the natural landform by way of construction of access driveways, excavations, filling and the like;
(f) to enable development for the purposes of tourism and recreation to occur in an environmentally acceptable manner;
(g) to ensure development is carried out in a manner that minimises risks from natural hazards, particularly bushfires and flooding;
(h) to recognise that rural localities cannot be economically provided with the level of service that apply in urban locations; and
(i) to recognise the value of the rural scenic landscape to the local tourist economy and to protect these areas from smallholding rural subdivision.
13 The proposed development would be also subject to the requirements of Development Control Plan No. 10 – ‘Dog Boarding, Breeding, Keeping and Training’ and Development Control Plan No. 44 – ‘Requirements for the Erection of Buildings’.
14 State Environmental Planning Policy No 58 (Protecting Sydney's Water Supply) also applies.
The proposal and its history
15 Development application No LU07/0146 was lodged with the respondent council on 9 February 2007 to establish a dog-breeding facility on the land. It is proposed to reduce the number of dog runs to five (5) and to erect kennels within each run to accommodate the dogs at night. These dog runs would be in the location of the 12m x 80m runs, and it is proposed to erect an acoustic screen along the southern side of these runs and to erect a 1.5m high fence between each of the runs. The whelping shed is to remain in the garage of the residence. The four dog runs to the south of the kennel block would be removed.
16 The dog breeding facility has been in operation without the council’s consent for about 3 years. On 20 December 2004, the council requested the applicants to lodge a development application.
17 In response to this council request, a development application for the dog breeding facility was lodged with the council in July 2005 (Application No. LUA05/0811). On 1 February 2006 this original development application, was refused by the council for the following reasons:
i. The existing unauthorised dog breeding facility is contrary to the objectives and structural requirements of Council's Development Control Plan No. 10 – ‘Dog Boarding, Breeding, Keeping and Training’.
ii. The site is not suitable for the proposed development due to the extent of impact upon neighbouring residents. The noise impact from the existing unauthorised dog breeding facility exceed the intrusive noise criteria as specified by the New South Wales Industrial Noise Policy.
iii. The proposed noise management strategy does not provide for a satisfactory reduction in intrusive noise levels, nor does it consider the noise impact on all neighbouring properties.
18 Section 82A Review of the determination was lodged on 15 June 2006 and refused on 7 September 2006.
Notification
19 The application was notified to nearby owners and occupants and the council received around three objections. Most of these were concerned for the noise of the dogs especially around feeding time.
20 Concerned objectors included:
· Ms P Mildwater, and Mr K McCarthy residents of Lot 140, Hawkshill Road, Canyonleigh;
· Mr and Mrs Raiti, residents of Lot 61, Hawkshill Road, Canyonleigh
· Mr Chippendale and Ms Coppleton residents of Lot 141 Hawkshill Road, Canyonleigh;
· Mr and Mrs Moore residents of Lot 121 Hawkshill Road, Canyonleigh;
· Mr and Mrs Vanderbeek residents of Lot 15 Hawkshill Road, Canyonleigh; and
· Mr and Mrs Stewart residents of Lot 160 Hawkshill Road, Canyonleigh.
21 By notice dated 23 April 2007, the council refused the present application (Application No. LU07/0146) for the following reason:
(Reason for refusal imposed pursuant to s. 79C(1)(b), (c) and (d) of the Environmental Planning &Assessment Act 1979 )The existing unauthorised dog breeding facility will create unacceptable visual impacts from the proposed noise barriers and will continue to create unacceptable impacts of noise on adjoining neighbours, particularly at night, and also under less than favourable wind conditions.
22 The appeal was filed on 10 May 2007.
23 At the hearing the court heard evidence on behalf of the respondent council from Mr L Stewart, ‘Glenfion’ Lot 160, Hawkshill Road, Canyonleigh. Mr S Webb, the council’s town planner was present.
24 The Court-appointed acoustic expert, Mr S Gauld, who prepared the noise impact report, dated 25 June 2007 in Exhibit 4.
25 Mr J S Lee - Town Planner, Director of Environment & Planning of the council prepared a statement of basic facts and contentions dated 9 May 2007.
The issues
26 On 10 May 2007 the council filed a statement of issues:
1. Whether the dog breeding facility will create unacceptable impacts of noise on adjoining neighbours, particularly at night and also under certain wind conditions?
- Clause 5.3 of Development Control Plan No. 10 – ‘Dog Boarding, Breeding, Keeping and Training’, requires the kennels and yards to be sited and screened to allow for minimum impact on the use of adjoining properties. The location of the present kennels and yards, as well as the proposed location of kennels and yards are sited too close to adjoining properties and will have an adverse impact on those properties from noise.
Clause 9 of Development Control Plan No.10 requires visual amenity and appropriate screening.
The Development Control Plan requires every application to be accompanied by detailed landscaping plans. No such landscaping plans have been submitted by the Applicants.
Development Control Plan No. 44 – ‘Requirements for the Erection of Buildings’ requires in relation to dog boarding or breeding kennels the use construction materials, dimensions and waste control in accordance with standards identified in the Development Control Plan. The present facility does not have adequate waste controls and a separate wastewater disposal application must be submitted to Council.
- Noise readings taken as part of a study of the subject site show that the noise impact from the breeding activity already established on the site exceeds background noise level on the average by 18 dB(A) both during daytime and night-time. These levels significantly exceed "intrusiveness criteria" outlined by the Department of Environment & Conservation.
The proposal aims at re-designing and extending noise barriers resulting in at least 15 dB(A) reduction of noise at the boundary of the subject property. The recorded background noise level is unacceptable as it is continuous over a 7-day period. Regular noise level readings of 70 dB(A) and above are evident on all 7 days of the week, particularly during evening hours.
The proposed noise reduction management strategies are not to an acceptable level, especially at night when the background noise level is low.
- The resultant noise barrier will present as an obtrusive element in the rural landscape, out of character to the area.
27 The salient issue was that concerning noise impacts. The council withdrew its issue in respect of the visual impacts of the proposal after receipt of the landscaping plans.
The evidence and findings
Noise impacts
28 Mr Gauld of Day Design Pty Limited, took sound measurements of the background noise in the area in accordance with the NSW Environmental Protection Authority Noise Policy (INP) and found that at Lot 160 Hawkshill Road the background noise level was less than 23 dBA. He concluded that the background noise level in the vicinity of Hawkshill Road is very low typically between 17 dBA and 35dBA. Mr Koikas another noise expert employed by the applicant supported these findings.
29 Mr Gauld adopted as background 30 dBA and supported this contention by the fact that the INP states, “[w]here the rating background level is found to be less than 30 dBA then it is set at 30 dBA. Based on this fact he recommended that the criterion for noise emission on the land be 35 dBA and that a modifying factor should be added to the measured Leq, 15min noise level at night between 10pm and 7am.
30 Mr Stewart said that he found the noise from dogs obtrusive at times, expecially around what he understood to be feeding times, and lasted for between 1 minute and 3 minutes, and the impacts seemed greater in the summer. At other times, he agreed that he heard no noise and this was so during the night. He accepted that the noise would travel further when prevailing atmospheric conditions were suitable. He also accepted that the recommendations proposed by Mr Gauld the acoustic engineer would not ameliorate noise at his residence.
31 Mr Gauld stated that the removing of the southern runs would reduce the noise exposure at Lots 140 and 61 however this change would not assist the other lots.
32 Mr Gauld concluded that:
- Based on the measurements taken at various locations, …the noise emission from the existing facility clearly exceeds the noise criterion at 140 Hawkshill Road during the day and slightly exceeds the noise criterion at 61 Hawkshill Road. It is within the noise criterion at 141 Hawkshill Road.
33 He was of the opinion that with the recommended noise controls implemented; the proposal would reduce the noise impacts to comply with the noise criterion.
34 Mr Seton, on behalf of the applicant submitted:
· The proposal is permissible in the zone and being on a large lot would be consistent with objective item (a) of the WLEP and not inconsistent with other objectives, [Note: para 12 above].
· By reference to the Statement of Environmental Effects, 60 dogs are to be accommodated in the facility and those dogs would comprise 14 to 20 pups, 2 females and 1 to 2 pregnant and 35 other greyhounds. There would be a total of five runs and 20 dog kennels in the runs over an area of 60 x 80 or 4,800m2.
· The closest residence is that on Lot 140 Hawkshill Road, to the south and adjoins the access handle and the proposal would be around 150m from the house.
· The main issue in the proceedings is the noise impact. He questioned whether the council’s DCP10 ‘Dog Boarding, Breeding, Keeping and Training’ and Development Control Plan No. 44 – ‘Requirements for the Erection of Buildings’ at Exhibit 3, p 5, applied to a proposal on a land area in excess of 40 ha. However, he assumed DCP10 did apply.
· He referred to the noise assessment report and the fixing of 5 dBA above background and that if applied here, the proposal would comply with that criteria for every adjoining property that is affected.
· Whilst it is accepted that there are non-compliances in respect of the existing situation the proposal would incorporate the recommendations of Mr Gauld at para 99. With the dogs locked in their dog run kennels at night they would clearly not be audible between 10pm to 7am. If screened by 1.5m fences between the runs and a 2.4m high acoustic screen on the south and with sound absorbing material in the kennel block there would be a significant improvement on Lot 140 Hawkshill Road, and would then meet the criteria.
· At the Raiti’s residence at Lot 61 Hawkshill Road, on Gauld’s evidence noise would be reduced to below the criteria. At No 141 Hawkshill Road, the noise might be audible outside during the day but not more than 5 DBA above background. If sleep disturbance were the concern, the noise during the day would not be audible in the bedroom. So a person would be able to sleep during the day.
· On that basis this development when assessed against the noise criteria, most concerns of local residents would be addressed and Stewart would still hear at times dogs barking for in 1 minute to 3 minute duration. Such an impact would not be seen as unreasonable where these facilities are allowed under the zoning and proposal complies with the DCP10 requirements.
· On that basis the application as amended by the conditions in Exhibit 5 including those recommended by Mr Gauld at para 99 is worthy of approval.
35 Mr Bilinsky on behalf of the respondent council submitted:
· There is no doubt that the present operation is generating unacceptable noise. [Note: Exhibit 4, p 7, paras 52 – 61]. The present operation should not continue.
· The question arises whether the proposal would overcome those problems of adverse noise impacts.
· In relation to the impact on Nos 140 and 61 Hawkshill Road, Canyonleigh, there would be a reduction in the noise level to about 30 + 5. As this is a quiet rural backwater, this criterion should not be applied as the true noise level should be 15+5. To introduce 30+5 would be considerably above the noise level in the area.
· The proposals, which have been made to attenuate impacs, would still leave neighbours subjected to noise. The noise impact experienced by the Stewarts would not change but [their dwelling] is the least affected by the present operation.
· At No 141 Hawkshill Road, Canyonleigh, occupied by Mr Chippendale, a shift worker, the proposal would have no impact on that property, except at night. During the day the occupants of that property trying to sleep or undertake other activities would be subjected to quiet high noise levels with dogs barking at feeding times. Due to the close proximity of this dwelling there would be little change other than during the night.
· Mr Chippendale is engaged in shift work and Mr Gauld is of the view the present noise levels are not acceptable if those people are entitled to noise levels for shift workers at Exhibit 4 paras 91-2. Shift workers should cater for their own noise levels. Need to take into account the noise on that property. Substantial noise levels during the day and no change proposed.
· The other property at 140 Hawkshill Road, Canyonleigh, presently occupied by Mr McCarthy has been sold and there is a need to consider future residents.
· In those circumstances that the council says that there are sufficient noise problems remaining in regard to Nos 140, 141 and 61 Hawkshill Road for the application to be refused. The council says the application should be dismissed.
36 In reply Mr Seton submitted:
· In respect of the Chippendale property, they might be able to hear the dogs when outside but the dogs would not be audible in the house. Thus Mr Chippendale would be able to sleep during the day within the dwelling on that land.
· A lower noise level is not required. Mr Gauld is clear that it should be consistent with the noise manual and that is his recommendation. This is appropriate as the measured background range is between 17 – 35 dBA.
37 I accept the evidence of Mr Gauld that with the recommended noise controls implemented, the proposal would comply with the noise criterion of the INP and the existing noise impacts would be reduced to acceptable levels for nearby properties. I accept that the noise levels at Mr Stewart’s property would not be changed however; the existing and proposed impacts would also meet the noise criteria specified by Mr Gauld. Depending on atmospheric conditions, Mr Stewart might or might not hear the dogs barking, as his property is screened by the topography of the area. I consider the impacts at his property are such that refusal would not be indicated.
38 I accept the thrust of the submissions of Mr Seton, and consider that the adverse noise impacts to which Mr Bilinsky refers are not such to warrant refusal of the application.
39 It is suitable land for the agricultural use of dog keeping, and is a use permissible in the zone. With the acoustic measures suggested by Mr Gauld, I am satisfied that it would be an appropriate use.
40 For the above reasons, the appeal is upheld.
Conditions
41 The conditions are those in Exhibit 5 as amended during the hearing. The conditions refer to the landscape plan that incorporated a landscaping screen to the south of the acoustic structure. With the proposed landscaping in place the council did not press its issue with respect of the visual impact of the proposal.
Orders
42 My orders are:
1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld.
2. Development application No LU07/0146 lodged with the respondent council on 9 February 2007 to establish a dog-breeding facility for 60 dogs at Lot 8, DP 263466, Nandi Road, Canyonleigh, in the Shire of Wingecarribee, is approved subject to Conditions 1 to 11 in Annexure A.
3. The exhibits except for Exhibits A, B, C, 5 and 7 are returned.
S J Watts
Commissioner of the Court
sw
The consequence of the Court’s decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court’s Orders and the conditions may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court’s web site at
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