Nichol v Port Stephens Council
[2013] NSWLEC 1234
•11 December 2013
Land and Environment Court
New South Wales
Case Title: Nichol v Port Stephens Council Medium Neutral Citation: [2013] NSWLEC 1234 Hearing Date(s): 13 and 14 November 2013 Decision Date: 11 December 2013 Jurisdiction: Class 1 Before: Tuor C Decision: 1. The appeal is dismissed.
2. The development application for dog boarding kennels at 383 Butterwick Road, Butterwick is refused.
3. The exhibits, except Exhibits 1 and E, are returned.Catchwords: DEVELOPMENT APPLICATION: dog kennel. Consistency with zone objectives. Noise impacts. Adequacy of effluent disposal system. Legislation Cited: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Port Stephens Local Environmental Plan 2000Cases Cited: Bellbay v Hawkesbury City Council (2007) NSWLEC 723
BGP Properties Pty Ltd v Lake Macquarie City Council [2004] NSWLEC 399
Chipperfield v Maitland City Council [2012] NSWLEC 1115
O'Reilly v Surf Coast Shire Council [2003] VCAT 1433Category: Principal judgment Parties: Beverley and Darren Nichol (Applicants)
Port Stephens Council (Respondent)Representation - Solicitors: Mr G Long
Law and Planning (Applicant)
Mr A Pickup
Local Government Legal (Respondent)File Number(s): 10278 of 2013
JUDGMENT
This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by Port Stephens Council (council) of Development Application 16-2012-246-1 for dog boarding kennels at 383 Butterwick Road, Butterwick (site).
The contentions raised by council in the Amended Statement of Facts and Contentions filed on 20 September 2013 are whether the proposal:
i. is consistent with the objectives of Zone 1(a) Rural Agriculture in Port Stephens Local Environmental Plan 2000 (LEP 2000);
ii. will have an adverse acoustic impact;
iii. has adequately addressed effluent management;
iv. will adversely impact on the Endangered Ecological Community (EEC);
v. will maintain the welfare of dogs using the facility through adequate ventilation and bush fire management.
vi. will not impact on the rural amenity of adjacent residences and the locality through noise.
The site and locality
The site is on the western side of Butterwick Road in an elevated area with relatively flat terrain. It is approximately 460m x 200m with an overall area of about 10.17 hectares. A two storey dwelling house with a pool and tennis court is located on the site and there is a large dam about 40m to the north of the existing dwelling. Power lines traverse the site. A large area of the site comprises native forest. The site is mapped as containing Lower Hunter Spotted Gum Forest, which is an EEC, and as Bushfire Prone Land.
The site is located in a rural area comprising a mixture of small and larger agricultural holdings. There are currently up to eight dwelling houses located within about 550 m of the proposed kennels, the closest dwelling being about 250m away. An adjoining property has also been approved (DA 16-2012-466-1) for subdivision for dwellings.
Background and proposal
The proposed development comprises the construction of a single storey industrial style building with a floor area of 1058sqm with the capacity to accommodate up to 100 dogs. Located off the kennels will be uncovered grass dog runs comprising an area of 400sqm. The runs will be surrounded by a 3 metre high sound barrier. The building construction comprises 150mm thick concrete block walls, 6.4mm glazed window glass, and insulated colorbond roof with gyprock ceilings. The building will have a ridge height of 3.9 m.
The building will be sited on the existing tennis court approximately 20m to an existing shed, 35m from the existing dwelling, 18m from the southern boundary and 67m from the rear boundary. It is proposed to provide a total of six car spaces serviced by an all weather gravel access road three metres wide with passing bays every 70 metres. Two of the car parking spaces will be for staff and four for customers.
Planning controls
The site was within Zone No 1(a) Rural Agriculture under LEP 2000. The proposed development for dog boarding kennels is consistent with the definition of an "Animal Establishment" in LEP 2000, which is permissible with consent in Zone 1(a) Rural Agriculture.
Clause 10(2) of LEP 2000 requires that consent must not be granted unless the consent authority is satisfied that the proposed development is consistent with the objectives of the zone. The relevant objectives of Zone 1(a) Rural Agriculture are:
The objective of the Rural Agriculture "A" Zone is to maintain the rural character of the area and to promote the efficient and sustainable utilisation of rural land and resources by:
(a) regulating the development of rural land for purposes other than agriculture by ensuring that development is compatible with rural land uses and does not adversely affect the environment or the amenity of the locality, and
......
(d) protecting or conserving (or both protecting and conserving):
.....
(ii) trees and other vegetation in environmentally sensitive localities where the conservation of the vegetation is likely to reduce land degradation or biodiversity, and
(iii) water resources, water quality and wetland areas, and their catchments and buffer areas, and
......Clause 47 of LEP 2000 provides:
47 Services
The consent authority shall not grant its consent to the carrying out of any development on any land unless:
(a) a water supply and facilities for the removal or disposal of sewage and drainage are available to that land, or
(b) arrangements satisfactory to it have been made for the provision of that supply and those facilities.Port Stephens Local Environmental Plan 2013 (Draft LEP) has been exhibited. The Site is located in Zone RU1 Primary Production under the Draft LEP. The proposed development for dog boarding kennels is consistent with the definition of "animal boarding or training establishments", which are permissible with consent in Zone RU1 Primary Production.
Port Stephens Development Control Plan 2007 (DCP) applies to the site. Part B2.12 provides principles and controls for waste water.
The site is bush fire prone land and Planning for Bushfire Protection 2006 is relevant.
Evidence
The parties agree that the site visit and evidence of objectors provided as part of a conciliation conference under s34 of the Land and Environment Court Act 1979 on 10 July 2013 would be evidence in the proceedings. Mr B Bremmell provided additional evidence in Court. The key concerns of the objectors were that the proposal is inconsistent with the rural character of the area. In particular, the increase in traffic and noise from barking dogs will result in adverse amenity impacts on nearby residents. The objectors were also concerned about the welfare of the dogs in a bushfire and the adequacy of waste management, particularly noise, odour and increased truck movements required for the pump out system.
The Court heard expert evidence:
For the council
·Mr G Fielding, planner
·Mr S Cooper, acoustic consultant
·Dr D Martens, civil and environmental engineer
For the applicant
·Mr R Bennett, planner
·Mr A Welbourne, acoustic consultant
·Mr M Smith, waste water consultant
Waste water
Sewage flow rate
Dr Martens and Mr Smith disagreed on sewage flow rates likely to be generated by the proposal. Mr Smith based his estimates on the figures provided by the applicant which were initially 400L/day and further information which suggests 1,000L/day, plus 150L/d for staff.
Dr Martens based his estimate on water usage surveys of other facilities of 10L/sqm/d, which he adjusted by 50% to account for the use of tank water. Based on a floor area of the kennel of 487sqm, he estimates around 2,500L/d would be generated from the kennels.
Pump out system
The experts agree that the proposed pump out system does not comply with cl B2.C55 of the DCP, which permits effluent pump out systems only in certain circumstances. However, Mr Smith considers that a pump out system is a cost effective solution for the site with no environmental impacts if adequately maintained. He acknowledged that the proposed system (Exhibit C) may require redesign to ensure adequate storage capacity to minimise truck collections but that this could be a condition of approval.
In Dr Martens' opinion, the proposed pump out system as designed would not have the capacity to store the effluent likely to be generated based on his estimate of hydraulic load. He accepted that a system could be designed and that the number of truck collections would depend upon the size of the trucks and the storage capacity of the tanks.
Dr Martens stated that pump out system are generally not supported by local government authorities due to the high level of management that is required to minimise environmental risk. If the system is not managed properly there is the potential to overflow, leak or for stormwater to enter the tanks. The need for ongoing maintenance, regular pump outs and frequent council inspections place a burden on the owner and council that is greater and less environmentally sustainable than an on site sewage management system. He considered the pump out to be particularly unsuited to the site due to the presence of EEC and the potential for failure.
On site sewage management system
The experts agree that the NSW Department of Environment and Conservation (2004) Use of Effluent by Irrigation (Guideline) is relevant for the design of an onsite sewage management system. Mr Smith considers that elements of the Guideline have been addressed. Groundwater conditions and soil testing provide adequate information for an on site waste water treatment system. Although, he acknowledged that the system that had been proposed was based on 550L/d and that for an increased hydraulic loading further investigation would be required to determine the size of the dispersal area. This may require additional soil samples and ground water investigation. In his opinion, the site is large enough to accommodate a dispersal area for an on site sewage system that would not impact on the EEC. He considered that the further investigation and on site system design could be imposed as a deferred commencement condition.
Dr Martens acknowledged that some aspects of the Guidelines had been addressed but that a number of matters such as groundwater conditions, salinity impacts and soil testing are inadequate. Further investigation is required to address the Guidelines, the increased hydraulic loads and location of a larger dispersal area. He accepted that the site is large enough to accommodate an on site system but considered there is too much uncertainty to be satisfied about the impacts of such as system given constraints such as setbacks from boundaries, dams and EEC and works required such a earth works and tree removal. In his opinion, a deferred commencement condition is not appropriate and would not satisfy cl 47 of LEP 2000.
Findings
Clause 47 of LEP 2000 requires satisfaction of the arrangements for the facilities for the removal or disposal of sewage have been made prior to consent being granted.
Part B2.12 addresses waste water and provides Principles and Controls to satisfy cl 47 of LEP 2000. Principle B2.P21 provides:
B2.P21 On-site sewage systems should be designed to
perform adequately without the need for
constant supervision, maintenance and repair.Development Controls in B2.12 include B2.C55 which provides:
B2.C55 The development of land for residential, retail, commercial or industrial use based on an effluent pump-out system (tanker removal) will not be permitted. The installation of effluent pump-out systems will only be permitted by Council where:
· An existing dwelling/building is operating a system of sewage management with onsite disposal that has been determined by Council staff to be no longer functioning in a manner considered appropriate due to environmental and/or health related concerns; or
· An existing undeveloped allotment is less than 4000 square metres in size and it has been determined by Council staff that the on-site disposal of effluent is not achievable and/or does not meet the appropriate standards or guidelines.It is the agreed position of the experts that the proposed effluent pump out system does not comply with B2.C55 or satisfy the criteria for exemption. Mr Long, for the applicant, submits that the proposal meets the intent of the exemptions in B2.C55, which relate to environmental harm. In his submission, the pump out system would have less environmental impact than an on site system as it would not require removal of trees or impact on EEC.
I do not accept this submission. The evidence of the experts is that pump out systems require significant management and maintenance to minimise environmental impacts. There is disagreement between the experts on the sewage flow rates likely to be generated by the development. Regardless of whether the figure of 1000L/d or 2500L/d is used, the proposed system will be required to be pumped out. The frequency and size of trucks as well as the costs involved are not certain. I accept that the costs may be small relative to the income of the dog kennel but there are also costs to the community from the truck movements and frequent inspections by council, which place demands on its resources.
The pump out system would not require removal of trees and if properly designed, managed and maintained, it will not impact on the EEC. However, a pump out system is more prone to failure than an on site system which would also have less external impacts. Due to the inherent risks, pump out systems are not supported by the DCP and there are no particular circumstances of the site or the development that would warrant non compliance with B2.C55, particularly given that the experts agree that an appropriate on site system could be designed for the site.
The application originally proposed an on site disposal system, however, Dr Martens raised concerns about the adequacy of the investigation and design of the system. Rather than address these concerns, the on site system was replaced with a pump out system. The applicant would accept a deferred commencement condition which requires an on site sewage management system. However, I accept the concerns raised by Dr Martens about the uncertainty of the impacts of such a system, particularly as the size and location of the dispersal area is unknown and consequently the extent of earth works, tree removal and proximity to EEC. I therefore do not have the level of satisfaction required by cl 47 of LEP 2000 for consent to be granted and for this reason the application must fail.
The application fails on the arrangements for the provision of facilities for the removal of sewage, for completeness, I will briefly discuss the other key issues in dispute between the parties.
Noise
Mr Welbourne, and his company Global Acoustics Pty Ltd, prepared the following acoustic reports:
·Proposed Boarding Kennels, Butterwick dated 12 April 2012 (original acoustic assessment) which included monitoring in January 2011 to determine Rating Background Levels (Summer RBLs)
·Proposed Boarding Kennels, Butterwick dated 15 August 2013 (amended acoustic report)
·Statement of Evidence dated 16 October 2013 which included which included monitoring in August and September 2013 to determine Rating Background Levels (Winter RBLs)
Mr Cooper and Mr Welbourne held different opinions about the noise assessment based on these report. In particular, they disagree on whether the NSW Industrial Noise Policy (INP) or the Noise Guide for Local Government (Noise Guidelines) are relevant to assess the acoustic impact of the proposal. Mr Cooper accepted that the INP is useful to establish noise goals but that it was prepared by the Environment Protection Authority (EPA) in 2000 for "industrial noise sources scheduled under the Protection of the Environment Operations Act". Whereas the Noise Guidelines were prepared more recently to assist local government in the management of "offensive" noise, such as barking dogs and animal kennels for which council is the relevant authority. Mr Welbourne relied on the INP, which covers commercial premises and includes appropriate processes to measure noise impact, including noise criteria for "intrusive" noise. The key areas of disagreement about the acoustic assessments are:
Ambient background levels
Mr Cooper noted that the Summer RBLs (39 day; 41 evening; 37 night) had uncharacteristic ambient pattern in the early hours of the morning that would suggest extraneous noise influencing the results. The Winter RBLs are significantly lower (25 day; 29 evening; 30 night). Based on the Winter RBLs the quietest time of the day is between midday and 2pm and the maximum noise occurs in the early hours of the morning, which is unusual. The measurements have not been qualified by attended measurements to determine the acoustic environment. Nevertheless, Mr Cooper accepted and the use of the Winter RBLs for the purpose of the acoustic assessment.
Mr Welbourne accepted that the Summer RBLs appear to be atypical but the "uncharacteristic noise" could result from cicadas. The Winter RBL's are lower which could reflect seasonal changes in the noise environment. Furthermore, quieter day time levels could reflect that noise does not travel as far during the day due to heat and that there may be louder noise events with quieter gaps, which are averaged over a 15 minute period whereas at night noise may be constant, such as frogs.
Noise criteria
As the Winter RBLs levels are low, Mr Welbourne based the intrusive noise criteria on the "default" RBL of 30dB(A) in the INP which would result in a project specific noise criterion of LAeq 35dB for all time periods. This criterion is different to the noise target of background plus 5dB in the original and amended acoustic assessments.
Mr Copper considered that the project specific noise criteria should be based on the recorded ambient background noise plus 5dB (30 day; 34 evening; 35 night) not the default of 30dB(A) plus 5dB. Adopting the "default" has a greater impact if the measured background noise is lower such as in the daytime where there is 10dB difference between the background (25) and the default noise criterion (35).
The experts also disagree on the noise level that would apply for the assessment of sleep arousal.
Predicted noise levels
The original and amended acoustic reports have different predicted noise levels resulting from different noise source data in the two reports. Mr Welbourne explained that the sound power data source is the same in both reports but that that there was a calculation error in the original report. He noted that the sound power is similar to that accepted by the Court for an animal establishment for 42 dogs and 40 cats at 4 Krystyna Avenue, Windella (Chipperfield v Maitland City Council [2012] NSWLEC 1115). Mr Cooper was concerned that there had been no validation of the levels, the number of dogs, circumstances in which they had been measured nor the time periods for dogs barking. He also noted that no adjustments had been made for the characteristics of the noise as required by s 4.3 of the INP.
Results
Based on the scenarios in amended acoustic report and the winter RBLs the experts agree that the proposal would exceed the default and intrusive noise criteria for the day at most residential receptors. The criteria would also be exceeded in some locations in the evening period.
Mr Welbourne considered the scenario modelled in the daytime to be a "bad case" but not the worst and that if the kennel is managed in accordance with the Plan of Management the noise level in any 15minute period could be less. Furthermore, he stated that the kennels could be reconfigured and together with appropriate management the LAeq 35dB criterion could be met for the scenario modelled.
As stated above, Mr Coper did not accept LAeq 35dB as the appropriate criterion and considered there to be no certainty that the proposal would not adversely impact on the residential receptors. Furthermore, in his opinion, the checklist of considerations for offensive noise in s 2.2.4 of the Noise Guidelines had not been considered in the assessment of the proposal.
Findings
There is considerable disagreement between the experts about the adequacy of the noise assessment and the likely impacts of the proposal. The experts' different opinions about the applicability of the INP and the Noise Guidelines, the discrepancies in the original and amended acoustic reports and the further background monitoring, which occurred after the amended acoustic report, have contributed to this difference of opinion. Even if I were to accept Mr Welbourne's methodology, the daytime scenario indicates non compliance with his daytime criteria of LAeq 35dB at all but one of the residential receptors with levels up to 40 for existing dwellings and 41 for potential dwellings in the approved subdivision. While these levels may still represent a relatively low noise environment they are considerably higher than the RBL of 25 and would be clearly audible during the daytime.
The daytime scenario was based on six dogs in grass runs and 20 dogs in open kennels barking continuously for five minutes in 15. Mr Welbourne recognised that this is a bad case scenario but not the worst and stated that management and other measures could achieve compliance with the daytime criterion. However, other than placing barking dogs inside the kennels with doors closed it is unclear what further management measures could be implemented. With up to 100 dogs it would appear that the daytime scenario and resultant noise levels are representative of what could reasonably occur. Based on this scenario the proposal does not achieve compliance with Mr Welbourne's daytime criterion and further exceeds Mr Cooper's criterion. Furthermore, Mr Welbourne did not demonstrate that adjustments to the noise levels should not be made to address the factors outlined in s 4.3 of the INP and consequently the levels could be higher.
In oral evidence, Mr Welbourne addressed the offensive noise checklist in the Noise Guidelines. His responses to the checklist indicate that the proposal would be "offensive" noise. While this checklist is subjective, I accept that the matters are relevant to consider when assessing the likely impact of an activity such as a dog kennel within a rural agricultural zone.
The dog kennel is a permissible use within the rural agricultural zone, which means that there is a presumption that the use "in some form" may occur within the zone (see BGP Properties Pty Ltd v Lake Macquarie City Council [2004] NSWLEC 399). However, the impacts of the particular proposal must be assessed to determine its consistency with the zone objectives. A dog kennel which can accommodate up to 100 dogs within 250m to 550m of a number of dwellings has the potential for greater impacts than a kennel with less dogs that is further from residential receptors.
Furthermore, the nature of the noise with periods when there are no dogs barking and other periods where a few or a number of dogs may be barking would contribute to the potential to impact on the amenity of the area. Both the INP and the Noise policy are not seeking noise to be inaudible above background and there are rural activities that generate noise (see Bellbay v Hawkesbury City Council (2007) NSWLEC 723 and O'Reilly v Surf Coast Shire Council [2003] VCAT 1433). The applicant has endeavoured to reduce noise impacts through the construction of the facility and measures such as the acoustic wall and management plan. However, based on the evidence, I am not satisfied that the noise levels generated by the proposal are reasonable or would not adversely impact on amenity.
Consistency with the zone objectives
The key disagreement between Mr Fielding and Mr Bennett is whether the proposal is consistent with objective (a) of the Zone 1(a) Rural Agriculture in LEP 2000:
...to maintain the rural character of the area and to promote the efficient and sustainable utilisation of rural land and resources by:
(a) regulating the development of rural land for purposes other than agriculture by ensuring that development is compatible with rural land uses and does not adversely affect the environment or the amenity of the locality, andMr Bennett referred to recent decisions by council to approve developments where noise impact were a major consideration as demonstrating "acceptance of noise above guidelines by residents is necessary for the economic prosperity of the Shire". He considered that the proposal is not inconsistent with the objective of the zone as the proposal does not result in a "significant" adverse impact on the amenity of the locality.
Mr Fielding acknowledged that if the proposal adequately addressed noise and effluent disposal it would be consistent with the objectives of the zone. However, as the proposal does not satisfy the intrusiveness noise criteria and does not provide an on site waste management system, Mr Fielding concluded that it had not been demonstrated that the proposal would not adversely affect the amenity of the locality and therefore it does not meet the objective of the zone. I accept Mr Fielding's opinion. For the reasons outlined above, the proposal, in its current form, is not consistent with objective (a) of the Zone 1(a) Rural Agriculture in LEP 2000, which is a precondition to granting consent.
Other issues
The other issues in dispute between the parties have been addressed above or would not be reason to refuse the application.
Orders
1. The appeal is dismissed.
2. The development application for dog boarding kennels at 383 Butterwick Road, Butterwick is refused.
3. The exhibits, except Exhibits 1 and E, are returned.
Annelise Tuor
Commissioner of the Court
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