Green v Tweed Shire Council

[2009] NSWLEC 1073

Land and Environment Court

of New South Wales

CITATION:

Green v Tweed Shire Council [2009] NSWLEC 1073

PARTIES:

APPLICANT
Lesley and Linda Green

RESPONDENT
Tweed Shire Council

FILE NUMBER(S):

10612 of 2008

CORAM:

Taylor C

KEY ISSUES:

APPEAL :- for upgraded Greyhound Kennels, noise abatement from dog kennels.

LEGISLATION CITED:

Tweed Local Environmental Plan 2000

DATES OF HEARING:

02/03/2009

EX TEMPORE JUDGMENT DATE:

2 March 2009

LEGAL REPRESENTATIVES:

APPLICANT
Mr Howard, solicitor

RESPONDENT
Mr March, solicitor
for HWL Ebsworth Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Taylor C

2 March 2009

10612 of 2008 Green, Lesley and Linda v Tweed Shire Council

JUDGMENT
This determination was given extemporaneously and has been edited prior to publication.

1 This is an extempore decision in the matter of Green, Lesley and Linda v Tweed Shire Council (the Council), Appeal No. 10612 of 2008. The matter was originally before the Court as a s 34 Conciliation Conference. The parties agreed to me making a binding decision under s34(4)(b)(i) while having regard to the evidence presented at the initial conference and site visit.

The site and proposal

2 I had the benefit of a site inspection of the Green’s property and the greyhound sheds, the subject of this case, on 3 October 2008. The Green’s own a greyhound training facility, which is effectively in a shed that is separate to their dwelling at 3808 Kyogle Road, Mt Burrell.

3 At the site visit I was shown the resting quarters for the dogs, their training area and their area used for the dogs’ outdoor ablutions. I was also shown the dog kennel’s effluent run off and treatment system. The site outside of the building structure used to house the dogs was of natural ground comprised of grass and bare soil, as attested to by Mr March’s muddied suit trousers.

4 Other rural properties at some hundreds of metres distant surround the dwelling.

5 Some of these neighbours have raised objections to the proposal due to the noise in the early hours of the morning from the barking dogs whilst others have submitted letters in support of the proposal. The primary issue of the facility relates to the management of noise from the dogs, particularly between the hours of 5 am and 7 am. This time of the day is when many residents are still asleep and may be disturbed in the lightest phase of their sleep cycle by the dogs barking.

6 The amended proposal before me is essentially to house 14 racing greyhound dogs plus the retention of one other dog as a pet within the house.

7 The application as proposed will involve substantial noise proofing of the current building structure and a management plan (including noise reduction strategies) as well as the insertion of a new system to deal with the dog’s effluent from the building.

8 Prior to this hearing there were a series of unresolved issues that have now been dealt with to the satisfaction of the Council with the agreement of the applicant.

9 I will deal with the noise abatement issue later but the other items that were resolved between the parties can be summarised as follows:

1. The absence of a building certificate for the structure that houses the greyhounds.
2. Proper plans and designs of the proposed modifications to the greyhound building so that it is suitable for its purpose.
3. Confirmation that the proposed facility is adequate and meets the minimum guidelines of the Greyhound and Harness Racing Regulatory Authority.
4. The provision of a management plan to deal with the barking noise from the greyhounds and the general running of the facility.

10 The development is permissible use under the Tweed Local Environmental Plan 2000. The area of the subject site is zoned Zone 1(a) Rural; of which one of the primary objectives is to protect the rural character and amenity. It was this aspect of the development and its impact that caused concern to the Council, particularly in respect to clause 8 of the LEP, items 8(1)(a) and 8(c):

8 Consent considerations
(1) The consent authority may grant consent to development (other than development specified in Item 3 of the Table to clause 11) only if:
(a) it is satisfied that the development is consistent with the primary objective of the zone within which it is located, and

…….

(c) it is satisfied that the development would not have an unacceptable cumulative impact on the community, locality or catchment that will be affected by its being carried out or on the area of Tweed as a whole.

11 In respect of the need to retain and respect the rural character and amenity the Council pressed a suite of conditions to ensure that the development application did not have the potential to affect these desirable aspects of the area nor were local residents unduly affected.

12 The applicant has agreed to all of the conditions, which I will not describe in full. I will refer to only a limited number of pertinent components as a result of the applicant agreeing to conditions of consent.

13 As a consequence of these conditions, the Council is satisfied that consent can be granted. After hearing the parties and reading the draft conditions, I am of the same mind. However, the noise abatement issues are worthy of mention.

14 Early in the hearing, there was vigorous and lively disagreement between the acoustic experts over the noise assessment measurement method, interpretation of data and future or ongoing assessment methods. Fortunately, the experts resolved these issues, although some minor disagreement remains over the measurement of the appropriate background noise at the critical period from 5 - 7 am.

15 The Applicant’s acoustic expert, Mr Hall, contends that the periods of assessment of noise background should be temporally equivalent to the period under assessment (time and length). In contrast, the Council’s noise expert, Mr Atkins, contends that one should apply the background noise from a 24 hour period inclusive of the period of assessment, even if this assessment timeframe is much shorter, e.g. 2 hours. At this juncture, it is not helpful to make extensive comment on this, except to say that it would seem to me that the use and application of noise background levels (i.e. LAeq) should be based on meaningful comparisons to the time period under assessment. That is, periods of activity and assessment should compare with equivalent time periods and their associated background noise levels.

16 The experts have acknowledged, importantly, that the LAeq between the hours of 5 am and 7 am does not comply with the relevant Industrial Noise Policy standards. Therefore, there is agreement that there is a noise related issue, i.e. the dogs barking, from the site in its current structural form.

17 Consequently, the applicant has agreed to a substantial renovation of the building and to introduce a range of noise ameliorating strategies including the use of sound proofing on the dog’s quarters and the use of dog muzzles when the greyhounds are out of their kennels and in the open. The applicant also agreed to a noise management plan.

18 The Council remains concerned that the noise suppression strategies may not be suffice in the critical hours of 5 - 7 am.

19 Consequently, they have pressed and it has been accepted by the applicant that the consent is for a 12-month trial. This trial period will allow for proper assessment of:

1. The effectiveness of the alteration and sound proofing of the building.
2. The management plan and its effectiveness.
3. Any noise impacts on adjacent residents and any associated noise complaints.
4. Further additional testing and modification of the management plan and practice so as to meet Industrial Noise Policy goals.

20 Finally, because the current facility is non-compliant with the above strategy, the Council presses the condition and it is accepted by the applicant, that the building works and management plan will be completed in full within four (4) months of this date, the date of consent. As a consequence of these conditions of consent and agreement I am satisfied that the application now warrants approval.

21 The Orders of the Court are:

1. The Development Application Appeal DA06/1332 is upheld.
2. The Council is given leave to submit an updated management plan and Final Conditions by close of business 4 March 2009.
3. The exhibits are returned except the revised and amended building plans and management plan.

___________________

Dr Mark Patrick Taylor
Commissioner of the Court