Gilbert and ANOR and Shire Of Harvey
[2006] WASAT 280
•13 SEPTEMBER 2006
GILBERT & ANOR and SHIRE OF HARVEY [2006] WASAT 280
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 280 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:7/2006 | 30 MAY 2006 | |
| Coram: | MS J SMITHSON (SESSIONAL MEMBER) | 13/09/06 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | The application for review be dismissed The decision of the Shire of Harvey is affirmed | ||
| B | |||
| PDF Version |
| Parties: | EDWIN ARTHUR GILBERT LYNETTE AMY GILBERT SHIRE OF HARVEY |
Catchwords: | Dog kennels Breeding kennels 500 metre buffer Neighbour objection Neighbour had sufficient interest under s 242 Discretionary use Amenity impacts Appropriate location EPA buffers Special rural zone Noise regulations Application dismissed |
Legislation: | Dog Act 1976 (WA) Planning and Development Act 2005 (WA), s 242 Shire of Harvey District Planning Scheme No 1 Shire of Harvey Dogs Local Law Town Planning and Development Act 1928 (WA) |
Case References: | Nil Nil |
Orders | The application for review is dismissed.,The decision of the Shire of Harvey is affirmed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : GILBERT & ANOR and SHIRE OF HARVEY [2006] WASAT 280 MEMBER : MS J SMITHSON (SESSIONAL MEMBER) HEARD : 30 MAY 2006 DELIVERED : 13 SEPTEMBER 2006 FILE NO/S : DR 7 of 2006 BETWEEN : EDWIN ARTHUR GILBERT
- LYNETTE AMY GILBERT
Applicant
AND
SHIRE OF HARVEY
Respondent
Catchwords:
Dog kennels Breeding kennels 500 metre buffer Neighbour objection Neighbour had sufficient interest under s 242 Discretionary use Amenity impacts Appropriate location EPA buffers - Special rural zone - Noise regulations Application dismissed
Legislation:
Dog Act 1976 (WA)
Planning and Development Act 2005 (WA), s 242
Shire of Harvey District Planning Scheme No 1
(Page 2)
Shire of Harvey Dogs Local Law
Town Planning and Development Act 1928 (WA)
Result:
The application for review be dismissed
The decision of the Shire of Harvey is affirmed
Category: B
Representation:
Counsel:
Applicant : Self-Represented
Respondent : Mr Jake Davidson
Solicitors:
Applicant : Self-represented
Respondent : Self-represented
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
(Page 3)
Summary of Tribunal's decision
1 These proceedings concerned an application for review of the refusal by the Shire of Harvey for an application for dog kennels at Lot 54 Riverdale Road, Cookernup.
2 The application proposed the conversion and use of a former dairy building on the site for the purposes of dog kennels, for breeding purposes only, for a breed of dog known as "Neopolitan Mastiffs".
3 The application was refused by the Shire essentially on the basis that the kennels would be within 500 metres of residences, which would be inconsistent with Environmental Protection Authority recommended buffers and therefore have an adverse impact, and due to community objection to the proposal.
4 The Tribunal found that, on balance, the application should be dismissed. Whilst the Tribunal accepted that the applicants were bonafide breeders of show dogs who would take care of their dogs and were prepared to upgrade the property to address neighbours' concerns, the Tribunal was not satisfied that these concerns could be overcome.
5 The limited size of the site, the extent of modifications and management required and, most significantly, the location of the use in a special rural area determined that, on balance, the application should not be supported. The nearest residence was less than 50 metres from the boundary and there were some 20 residences within 500 metres. The separation distance recommended by the Environmental Protection Authority could therefore not be achieved for a number of residences therefore increasing the likelihood of adverse impacts associated with the proposed use.
6 The application for review was dismissed.
Introduction
7 On October 17 2005, the applicants applied to the Shire of Harvey (the Shire) for approval to convert a former dairy at Lot 54 Riverdale Road, Cookernup (the site) into a facility to house six adult "mastiff" show dogs, and their litters, prior to the puppies being sold.
(Page 4)
8 The application proposed modifications to an existing building on the site for this purpose. The building was formerly used as a dairy and is of double brick with a concrete floor surrounded by a fully fenced yard. There is also a residence on the site which the Shire advised was vacant, but which the applicants indicated was occupied by their daughter.
9 The applicants submitted that the nature of the building and its former use was conducive to its conversion for kennels with minimal impact on adjoining neighbours, given the closest residence was 80 metres from the facility. Modifications were proposed to the building and to the outside run to further minimise any adverse impact.
10 The Shire classified the use as "Dog Kennels (Breeding)" which is a discretionary use requiring advertising.
11 The application was advertised and ten objections were received from adjoining and nearby properties, including from the Cookernup Community Association.
12 One of the objectors, Mrs Ellison, sought leave of the Tribunal to make a submission on the application under s 242 of the Planning and Development Act 2005 (WA) (PD Act). Section 242 enables the Tribunal to receive or hear submissions from a person who is not a party to the application if the Tribunal is of the opinion that the person has a sufficient interest. Mrs Ellison had conveyed her interest in writing to the Tribunal advising that she was an immediate neighbour, was the closest residence to the proposed kennels and was concerned at the amenity impacts the development would have on her property. The Tribunal accepted that the interest of Mrs Ellison was sufficient because the grounds for refusal directly related to the proximity of the adjoining residence, the potential for adverse impact on this residence, and the community objection to the proposal.
13 The objections raised by Mrs Ellison and/or other objectors were that:
(a) there would be an unacceptable impact on adjoining neighbours associated with noise, effluent, odours and increased flies;
(b) houses were within 40 metres, not 80 metres, of the site;
(c) the trees on the boundary were not dense enough or located adequately to provide a buffer;
(Page 5)
- (d) there were restrictions on the number of animals permitted on properties in the zone;
(e) the site had poor drainage and runoff which would be exacerbated from washdown of the facility;
(f) there were existing "dog problems" in the area and the dogs could attack livestock in the area given the poor state of fencing around the site; and
(g) approval could set a precedent for others to have additional dogs in the area.
14 The Shire accepted a number of these concerns, given the site was in a special rural zone and was therefore in relatively close proximity to other properties. On 19 December 2005, the Shire refused the application on the following grounds:
"The proposal would result in a dog kennel being located within 500 m of a residence, which would be inconsistent with the Environmental Protection Authority's recommended minimum buffer, and due to community objection to the proposal."
The site and planning context
15 The subject site has a total area of 1.4822 hectares and is situated in a "special rural" zone adjoining the Cookernup townsite.
16 The Shire of Harvey's District Planning Scheme No 1 (DPS 1) requires planning consent for a dog kennel and there is a local law requiring a kennel license for more than two dogs over the age of three months. Given the applicants intend to house six adult dogs and their litters, the Shire classified the use as a "Dog Kennel (for breeding purposes)" under DPS 1.
17 The use of “Dog Kennel” is an "SA" use in DPS 1 meaning it requires advertising prior to Council determination.
18 The Environmental Protection Authority's Guidance for the Assessment of Environmental Factors - Separation Distances between Industrial and Sensitive Land Uses No 3, June 2005 (EPA guidance statement) recommends that dog kennels in rural areas should be located a minimum of 500 metres from sensitive landuses (including residential) due to potential noise and odour impacts. This increases to one kilometre adjoining urban areas.
(Page 6)
19 There are a number of properties in close proximity to the site and they are also zoned "special rural". The area is immediately west of the Cookernup townsite. The Shire stated that the nearest adjoining residence was within 50 metres of the site and that there were 20 dwellings "within the 500 metre buffer".
Overview of Issues
20 The refusal issued by the Shire was based on the non-compliance with EPA recommended separation distances from nearby residences and therefore the potential impact on the amenity of these residences. The issues of concern related to odour and noise, concerns also raised by neighbours in their objections to the proposal.
21 Other issues raised by neighbours, such as the poor state of boundary fences and runoff from the site, were not issues of concern to the Shire in that they could be addressed through approval conditions. The Shire also took the view that the concern with increased flies, impact on nearby livestock, and restrictions on livestock numbers in the zone, were not substantiated and were not grounds for refusal.
Noise
22 The applicants engaged Herring Storer Acoustics to prepare a "Noise Impact Assessment" whilst the Shire retained Lloyd Acoustics. The Tribunal required that these two noise experts prepare a joint statement of their findings.
23 Both parties agreed that modifications were required to the building to meet the Environmental Protection (Noise) Regulations 1997 (WA) (Noise Regulations) and to minimise the potential for nuisance associated with noise. This included fixed laminated windows in specific locations, absorptive ceilings, a solid door and noise controls on the air conditioner. Barking collars were to be used and feeding times to be restricted to daylight hours. With these measures in place, assigned levels for inside kennel use would be acceptable. Modifications were also required to the outside run to further minimise noise emissions.
24 The parties did not agree on how many dogs should be allowed in the run at any time. Lloyd Acoustics believed the number should be limited to two on Sundays and public holidays and four on weekdays. This would minimise the potential for more than one dog to bark outside at any one time whereby the assigned noise level would be exceeded. Herring Storer believed these numbers could increase to three and six respectively. The
(Page 7)
- findings were based on different assumptions about how many dogs would bark at the one time. It was acknowledged that predicted noise levels were not an exact science and could vary if the assumptions were wrong.
25 The Shire provided to the Tribunal a letter from the Department of Environment (DoE). The DoE noted that kennels within 500 metres of residential properties could comply with the noise regulations taking into account terrain, acoustic treatment of the kennel, and noise management. The letter noted, however, "serious concerns" with the subject proposal in that, even with acoustic treatment, "compliance may not be practicably achieved for residences located at a distance of 50 metres from the kennel".
Applicants’ case
26 The applicants argued that a house on any property with kennels would be within 500 metres of it, that it was impossible to find a site in the special rural area that was not within 500 metres of a residence, so why allow such a use in the first place, that there were at least two other properties with kennels in the town, and that other properties had similar uses (such as dairies and horse stables) which could have just as much impact on residential amenity.
27 The property had previously been used as a dairy and the applicants pointed out that the EPA guidance statement was only for guidance. Furthermore, they were prepared to undertake modifications required to the property to address any concerns of neighbours.
28 The applicants provided information about two dog kennel proposals that had been approved by other local authorities: one by the Shire of Swan and one by the Shire of Waroona. In both instances, the applications were approved within 500 metres of residences, subject to conditions to minimise impact.
29 A review of the Shire of Swan application indicated that the site was over 25 hectares in area and situated in a general rural zone. The nearest residential property was 100 metres away. There were already eight dogs housed on the property and up to 15 dogs were proposed for private breeding. Numerous objections were received during advertising. The Shire of Swan issued approval for 12 months only, which would enable the Council not to issue a permanent approval if nuisance arose during that 12 month period.
(Page 8)
30 In the instance of the Shire of Waroona case cited, this was also for private breeding purposes for up to 30 pug dogs. The site was located in a rural zone, a number of objections to it were received, and the nearest residence was 75 metres away. The application was the subject of a mediated outcome in the Tribunal, having initially been refused by the Shire on amenity grounds. The size of the site was not provided.
31 The applicants are registered members of the Canine Association of Western Australia which requires adherence to a code of ethics in terms of how dogs are treated. The applicants argued that the dogs were too valuable to be left without adequate facilities. A number of testimonials were provided in support of the applicants' credentials as show dog owners and breeders, and material was provided to the Tribunal on the characteristics of the breed of dog proposed to be housed in the kennels.
Objections from and impact on neighbours
32 Under the provisions of DPS 1, the Shire is to have regard to comments received during advertising. Ten objections were received, the majority from nearby residents.
33 It was estimated that the nearest residence was some 45 metres from the boundary of the site and 60 metres from the external run.
34 Furthermore, there were 20 residences in total within 500 metres of the site, the majority on lots less than 2 hectares in area.
35 The main areas of concern for the Shire related to noise and odour, although they were also concerned that the requirement to erect a 2.2 metre high wall adjoining the eastern boundary to contain noise could have an adverse visual impact and impact the neighbours. No expert evidence was provided by either party on this matter or on odour. The applicants argued that the odour would be no worse than associated with other animals within the special rural zone including cows and horses. The EPA guidance statement recommends a 500 metre buffer to minimise impacts from noise and odours associated with kennels.
36 Mrs Ellison provided written information to the Tribunal outlining her concerns and was accepted by the Tribunal as a party with a sufficient interest under s 242 of the DP Act to make a submission. Her property immediately adjoins the site to the east and is the closest residence to the proposed kennels. Her main areas of concern, other than noise and odour, related to the possible run off from the kennels entering her property and that the fenced run would be used as an outdoor exercise area for the dogs.
(Page 9)
- She raised concern about the impact the proposed use would have on the value of her property and stated that the owners had occasionally kept dogs at the premises who had behaved in a manner she considered threatening.
37 Mrs Ellison also provided advice with regard to other kennels in Cookernup cited by the applicants, advising these were all at least 100 metres from residences and had been there for some time. She stated that the former dairy on the property had not operated for at least 20 years. Furthermore, residents in a rural zone expect noise from rural livestock but not from a concentration of dogs. Mrs Ellison also provided documentation on the Neopolitan Mastiff breed to counter some of the applicants' claims about the characteristics of the breed.
38 The Shire also gave evidence that the EPA guidance statement was used as a guiding document in determining applications for non-residential uses adjoining residential properties. Whilst the recommended distances could be varied where justified by circumstances or technical studies, the guidance statement provided a good policy guide. Furthermore, uses referred to by the applicants, which had been approved in relatively close proximity to residences, had been approved prior to the guidance statement, which was first released as a draft in 1997. To approve the proposed use so close to residential properties would be a substantial departure from the distance recommended in the guidance statement and could provide an undesirable precedent for other applications to seek similar exemptions.
39 Finally, the Shire raised a concern that maintaining the existing amenity of the neighbours was largely reliant on the success of the modifications proposed and implementation of a series of management actions. The latter was beyond the neighbours to control and would rely on the Shire to police. Whilst not questioning the character or intent of the applicants, the Shire's preferred position was not to allow a use which had the realistic potential for adverse impacts given the advice outlined in EPA policy. When having regard to this advice and the concerns raised by the community, the Shire had concluded that a kennel in the special rural area was an inappropriate use in this instance.
Findings and conclusion
40 For the reasons summarised below, the Tribunal, on balance, determines that the application for review be dismissed:
(Page 10)
41 The Tribunal accepts that some of the grounds for objection have no validity in terms of planning considerations or as the basis for refusal, particularly given the breed of dog proposed. However, on the issue of noise, and potentially odour, the proximity to the nearest residential property and to a further 19 residential properties, means that even with modifications, noise and odour would need to be continuously managed. There was therefore a reasonable probability that, on occasions, the noise in particular would be unacceptable. The site was accordingly, an inappropriate location for the use proposed.
42 The Tribunal notes that a number of modifications to the building and to the property are proposed to try and manage and minimise the impact of the use on adjoining neighbours. This is again largely a result of the proximity of the neighbours. However, again, if any of the management practices were not adhered to, albeit the applicants have demonstrated their best intent in this regard, the impact would be unacceptable.
43 The noise experts agreed that it would only take more than one barking dog outside to exceed the assigned noise levels and thus have a nuisance impact on adjoining neighbours. The extent of this impact and the likelihood of its occurrence increases with the number of dogs on the property. As the noise experts could not guarantee only one dog would bark at a time, the potential for nuisance impact from barking dogs could not be discounted.
44 Whilst the EPA guidance statement on separation distances provides guidance only, and the Tribunal has previously found that it is not a mandatory requirement to meet these distances, depending on the circumstances of the application, in this instance there are a number of properties much closer than the 500 metres recommended in that policy. This is inevitable within a special rural estate where lot sizes are in the order of only 1.5 hectares. The Tribunal accepts the applicants questioning of why their Scheme permits such uses as a contemplated use in this zone given the Shire's application of the guidance statement provisions.
45 The two cases of approved kennels cited by the applicants were both on larger sites in rural, not special rural, zones and had greater separation distances than is possible in this instance. The circumstances of these applications were therefore not directly comparable to the application before the Tribunal.
(Page 11)
Orders
46 The Tribunal makes the following orders:
1. The application for review is dismissed.
2. The decision of the Shire of Harvey is affirmed.
I certify that this and the preceding [46] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS J SMITHSON, SESSIONAL MEMBER
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