Hambilton v Young Shire Council
[2014] NSWLEC 1120
•04 June 2014
Land and Environment Court
New South Wales
Medium Neutral Citation: Hambilton & Anor v Young Shire Council [2014] NSWLEC 1120 Hearing dates: 26 May 2014 Decision date: 04 June 2014 Jurisdiction: Class 1 Before: Morris C Decision: Appeal dismissed
Catchwords: Conditions of consent, acoustics Legislation Cited: Land and Environment Court Act 1979; Young Local Environmental Plan 2010 Category: Principal judgment Parties: Maria A Hambilton
Young Shire Council (Respondent)
Patrick G Hambilton (Applicants)Representation: Mrs M Hambilton (Litigant in Person)
Mr A Bradbury
Bradley Allen Love Lawyers
File Number(s): 10971 of 2013
Judgment
The applicants, Mr and Mrs Hambilton, were granted development consent (DA 2010/DA-00182) (consent) by Young Shire Council on 4 August 2011 for use of an existing shed at Lot 9 DP 1066837, No 31 Newton Road, Young for the purpose of a dog kennel (non-commercial). Mrs Hambilton breeds dogs as a hobby.
The applicants are appealing one of the conditions, condition 9, seeking its deletion. That condition requires existing dog runs to be relocated to the opposite side of the shed.
The site and the locality
The site is within a rural residential area on the outskirts of Young. It has an area of 3293sqm and contains a dwelling house and associated outbuildings including the shed the subject of the consent. According to the evidence the shed has dimensions of approximately 12m x 6m. It is constructed with a metal frame and cladding. An awning extends across the southern side of the structure, which partially covers a number of caged dog runs. These runs are accessed through individual openings within the southern face of the shed and by external gates from the yard area of the site.
A screen wall has been erected between the shed and the boundary of the adjoining property.
Adjoining development comprises large lot residential development in a rural setting.
Background
The applicants built the shed, which is the subject of the consent and the proceedings, in 2007 without having obtained any development consent or construction certificate. According to the evidence contained in the Council's Bundle of Documents (Exhibit 2), the shed was drawn to the council's attention through complaints in relation to noise. The applicants sought consent and lodged an application for a Building Certificate to legitimise the use of the building. It is the Council's view that both were required. The information lodged with the original development application was deficient however the council finally granted consent in 2011. Conditions of the consent required certain actions and modifications to the structure within 30 days. Of particular relevance to the application are conditions 8, 9 and 10. These read as follows:
8. Within thirty (30) days from the date of approval issued, submit to Council an acoustic design report, prepared by an accredited Acoustical Consultant for the design and construction measures adopted, and shall certify that the noise levels will be achievable, not to exceed the background noise level of 5 dB(A) when measured at the closest dwelling of the neighbouring property, between the hours of 8.00pm to 7.00am daily.
9. Within fourteen (14) days from the date of approval issued, the runs of dog kennel shall be relocated to the northern side of shed.
10. Within thirty (30) days from the date of approval issues, establish to Council's satisfaction landscaping between the shed and neighbouring property.
These works have not been carried out and the council has commenced Class 4 proceedings in this Court seeking Orders to restrain the use of the shed otherwise than in accordance with the conditions of the consent. Those proceedings have been stayed pending the resolution of this application however were the subject of mediation between the parties. That mediation did not resolve the issues however, as a result of discussions, the application lodged with the council an application to modify the consent. The original application was lodged on 19 February 2013 and was revised on 28 May 2013. It sought to replace conditions 8, 9 and 10 with the following:
8. The applicant is to ensure that any noise from barking dogs at the premises does not interfere with the amenity of the neighbourhood between the hours of 8pm and 7am on any day. In this regard, the applicant is to install and maintain:
a. Min 50mm thick foam sandwich cool panels to the Southern and Eastern walls of the shed. The bottom section of the wall panel may be finished with a water-proof material such as conveyor belt or monopanel cladding to a maximum height of 500mm above floor level;
b. Insulation blanket material (min 22.5mm thick) such as Aircell sarking to the ceiling;
c. Min 18mm thick weather resistant plywood or min 50 mm cool-room panels (or equivalent 'sandwich' panelling) as roofing to the external dog races:
d. 200mm thick foam sandwich cool panel sheets fixed immediately inside all metal perimeter screening (including the screen extension required by condition 9). The sheets are to be a minimum of 2000mm in height and are not to extend beyond the height of the perimeter screening;
9. The applicant is to extend the existing perimeter screening on the Eastern side of the shed to the point level with the Southern face of the shed.
10. The applicant is to plant and maintain:
a. Vines or creepers (such as potato vine, jasmine or similar) to the external faces of the metal screens to soften the appearance of the screens from the adjoining properties: and
b. 2 rows, 1500mm apart, of trees or large shrubs (such as melaleucas, grevilleas or acacias chosen from the list of endemic species in Appendix G of Young DCP 2011), to grow to approx. 4m mature height, in an off-set pattern 3m apart adjacent to the screen wall.
The council refused the application to modify the conditions of consent on 7 August 2013 and the applicant filed the appeal against that decision. The application is only in relation to condition 9, seeking deletion of that condition because it is said to be an impossible task and a reason for refusal.
The matter commenced on site as a conciliation conference under s34 of the Land and Environment Court Act 1979. The site view included hearing evidence from the owners and occupants of an adjoining property, No 75 Newton Road, Young. The site was also observed from adjacent to the complainant's dwelling on that site. Their evidence was that the noise from the dogs barking was disturbing the enjoyment of their property, the shed had been constructed without consent and its design was such that the noise from the dog runs was directed towards their property. They also objected to the unsightly nature of the screen erected between the shed and their property.
The conciliation conference failed to resolve the matter and was terminated. The parties agreed that the evidence heard during the conciliation conference be evidence in the proceedings.
The planning controls
The site is zoned R5 Large Lot Residential under Young Local Environmental Plan 2010 (LEP). The council submits that the use of the shed is not an animal boarding or training establishment but rather a use that is ancillary to the dwelling house and therefore permitted with consent.
Clause 2.3(2) of the LEP requires that the consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone.
The objectives of the R5 zone are:
- To provide residential housing in a rural setting while preserving, and minimising impacts on, environmentally sensitive locations and scenic quality.
- To ensure that large residential lots do not hinder the proper and orderly development of urban areas in the future.
- To ensure that development in the area does not unreasonably increase the demand for public services or public facilities.
- To minimise conflict between land uses within this zone and land uses within adjoining zones.
The evidence
Expert acoustic evidence was heard from Mr N Gross for the council. Despite being encouraged to engage an acoustic consultant to assist with their case during the conciliation phase, the applicant did not present any expert evidence.
Mrs Hambilton did proffer an alternate proposal for consideration by the Court at the commencement of the hearing. Despite this being contrary to usual practice, the Court allowed her to describe that proposal. It involved the lining of the shed with either batts, panels or 16 or 18mm boards, the construction of a 3m high screen wall using 250mm cool room panelling 15m long and returned to the outer face of the existing awning and planting trees between that screen and the neighbouring property. No plans or acoustic details of the proposal, described as "Option C" during the hearing, were provided.
Mr Gross says that the relocation of the dog runs as required by condition 9 of the consent would have a significant impact in reducing the potential impact of noise from dogs barking whilst inside their pens and was a pragmatic way of Council alleviating complaints between neighbours in a simple condition. The reason for the significant reduction in noise levels is due to the substantial shielding that would be provided by the building located between the relocated dog pens and the affected neighbours and to a much lesser extent the marginally increased distance between the dog pens and the neighbours.
In relation to a scenario with no shielding between dogs and neighbours, he estimated the additional attenuation as a result of the relocation of the pens in accordance with Condition 9 would be approximately 20-25dB depending on the frequency content of the dogs barking or subjectively about one quarter of the loudness. Bigger dogs with lower frequency barks would be nearer to 20dB and smaller dogs with higher frequency barks would be nearer to 25dB. In relation to the current situation where some shielding has already been provided by the fence, he estimates the additional attenuation offered by the relocation of the pens in accordance with Condition 9 would be in the order of 15-20dB. This is subjectively about one third to one quarter of the loudness.
In relation to the effectiveness of the existing screen fence, Mr Gross says that the shielding it provides is relatively low (approximately 5dB) as some of the sound paths from a dog barking can reflect off the underside of the existing awning and then pass over the top of the barrier with little attenuation and similarly with little attenuation around the ends of the fence.
As part of the conciliation phase, Mr Gross had prepared a design for a barrier that would, in his opinion, have a similar level of noise attenuation form the "reverse shed" solution required by Condition 9. Those details are included in Exhibit 5 and involve the construction of a wall approximately 20m in length with an 8m return so that it extends 4m past the edge of the existing shed in a westerly direction and 3m north of the existing shed posts. The height of the fence would need to be 0.5m above the height of the gutter line or approximately 5m. Construction details were also provided. In addition, the underside of the roof above the pens should also have a 50mm thick acoustic insulation lining.
When asked to compare the option detailed in Exhibit 5 with Mrs Hambilton's alternate Option C proposal, he said the alternate would only result in a 5dB improvement whereas the relocation would achieve 15-20dB, or the result would be the noise from dogs barking would be twice as loud if Option C was imposed.
In relation to the likely noise associated with the relocation of the pens and any visual queues that would result from visitors to the applicant's property, Mr Gross acknowledged that he was unsure what made the dogs bark but if this were to occur, a visual screen would be beneficial. If the relocation resulted in the dogs barking for a longer period, he said that whilst it would still be audible from the adjoining property, it would be much less than the current situation.
Submissions
Mrs Hambilton submits that it is appropriate to allow the appeal and retain the dog runs in the current position as the dogs only access those area when she is at home and that it is not possible to relocate the runs to the opposite side of the shed as to do so would obstruct access to the adjacent garage and require re-wiring and relocation of water services within the building. The construction of the works outlined as Option C would ensure that the council's noise goal would be achieved at night. When asked what evidence was available to support this submission, it was agree that there was no such evidence.
It was also submitted that the council could not verify the noise generated by the dogs.
Mr Bradbury submits that the evidence of Mr Gross shows that the relocation of the runs would have a significant impact on reducing the noise to the adjoining property. He cited evidence of a report by the council's ranger included in Exhibit 2 that during an inspection of the adjacent property the ranger noted a barking noise coming from the shed that continued for approximately 20 minutes.
Conclusions and findings
On the basis of evidence before me, I am satisfied that the current arrangement of the dog runs is resulting in unreasonable noise impacts to adjoining properties. On the evidence of Mr Gross, there is merit in moving the dog runs from their current position to the opposite side of the shed. I accept that this will present operational and financial difficulties to Mrs Hambilton however these are not sufficient to allow the appeal. Similarly, the relocation of the dog runs alone will not resolve the noise issues associated with the use of the shed. That is why the council has imposed condition 8, as at the time it determined the development application for use of the shed, it was not provided sufficient information to ensure that the noise generated by the dogs would not give rise to offensive noise. According to the council's evidence, additional works may be required to comply with condition 8.
This appeal was only filed in relation to condition 9. I find that the condition should be retained. There is no evidence that the alternate "Option C" proposal will result in a satisfactory outcome in relation to noise emissions. Further, I consider that the construction of an acoustic fence is not consistent with the character of the locality, nor would it minimise impacts on the scenic quality of the area.
Conditions 8 and 10 must also be satisfied and it is therefore important that the applicants liaise with the council in relation to satisfying those requirements. Mediation and conciliation did not result in any successful outcome and, as a result of my decision in this matter, the Class 4 proceedings will follow. Accordingly, it would be in the best interests of the applicants to ensure that they obtain all necessary reports and approvals to ensure compliance with the conditions of consent. Whilst the relocation of the dog runs to the north of the shed does not require any further approvals from the council, any additional works to the shed or other works on site may require a development consent, construction certificate, complying development certificate or other form of approval. It is imperative that the applicants ensure that any such approval is obtained prior to the works being undertaken.
The Orders of the Court are:
(1) The appeal is dismissed.
(2) Modification application 2010/DA-00182 REV02 is refused.
(3) The exhibits, other than exhibit 1, may be returned.
__________________
Sue Morris
Commissioner of the Court
Decision last updated: 25 June 2014
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