Reader and Anor and the Shire of Greenough
[2005] WASAT 298
•14 NOVEMBER 2005
READER & ANOR and THE SHIRE OF GREENOUGH [2005] WASAT 298
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2005] WASAT 298 | |
| TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) | |||
| Case No: | DR:276/2004 | 9 MAY 2005 (FURTHER WRITTEN SUBMISSIONS RECEIVED 8 SEPTEMBER 2005 & 20 SEPTEMBER 2005) | |
| Coram: | MS M CONNOR (MEMBER) | 14/11/05 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | 1. The application for review is dismissed 2. The decision of the respondent is affirmed | ||
| B | |||
| PDF Version |
| Parties: | PAUL READER ALISON READER THE SHIRE OF GREENOUGH |
Catchwords: | Town planning – Development – Dog boarding kennel and training facility – Located within 500 metre buffer area for "Dog kennel zones" to a noise sensitive premises in Rural zones – Located in Narngulu Industrial buffer and the Obstacle Height Limitation Surface Area for the Geraldton airport – "AP" use – Need to advertise – Area in transition – Amenity issues relating to noise and odour |
Legislation: | Environmental Protection (Noise) Regulations 1997 (WA) Shire of Greenough Town Planning Scheme No 4 State Administrative Tribunal Act 2004 (WA), s 167(4)(a) |
Case References: | Nil Nil |
Orders | 1. The application for review of the decision of the Shire of Greenough to refuse a planning application for the, stablishment of a dog boarding kennel and training facility on Lot 54 (No 315) Edward Road, Meru is dismissed.,2. The decision of the Shire of Greenough is affirmed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) CITATION : READER & ANOR and THE SHIRE OF GREENOUGH [2005] WASAT 298 MEMBER : MS M CONNOR (MEMBER) HEARD : 9 MAY 2005
- (FURTHER WRITTEN SUBMISSIONS RECEIVED 8 SEPTEMBER 2005 & 20 SEPTEMBER 2005)
- ALISON READER
Applicants
AND
THE SHIRE OF GREENOUGH
Respondent
Catchwords:
Town planning – Development – Dog boarding kennel and training facility – Located within 500 metre buffer area for "Dog kennel zones" to a noise sensitive premises in Rural zones – Located in Narngulu Industrial buffer and the Obstacle Height Limitation Surface Area for the Geraldton airport – "AP" use – Need to advertise – Area in transition – Amenity issues relating to noise and odour
(Page 2)
Legislation:
Environmental Protection (Noise) Regulations 1997 (WA)
Shire of Greenough Town Planning Scheme No 4
State Administrative Tribunal Act 2004 (WA), s 167(4)(a)
Result:
1. The application for review is dismissed
2. The decision of the respondent is affirmed
Category: B
Representation:
Counsel:
Applicants : Mr P Reader
Respondent : Mr Lancaster (Agent)
Solicitors:
Applicants : Self-represented
Respondent : N/A
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
(Page 3)
Summary of Tribunal's decision
1 Paul Reader and Alison Reader applied for review of the decision of the Shire of Greenough refusing approval for the establishment of a dog boarding kennel and training facility on No 315 Edward Road, Meru.
2 The Tribunal considered the proposed use consistent with the long-term planning for the area. However, there were two critical issues, noise and odour, that needed to be considered to ensure that the existing amenity of the residences within the locality was not adversely affected. The Tribunal found that there was insufficient evidence provided to allow a proper assessment of noise and waste disposal. The Tribunal was not satisfied that the proposal was acceptable.
Introduction
3 Paul Reader and Alison Reader (the applicants) made application to the Shire of Greenough (the respondent) on 19 August 2004 for approval to establish a dog boarding kennel and training facility on Lot 54 (No 315) Edward Road, Meru (the subject land).
4 The development application was refused by the respondent at its ordinary meeting of 29 September 2004 for the following reasons:
"1. There are eleven (11) existing residences in the area surrounding Lot 54 that would be located within the 500 m buffer recommended for Dog Boarding Kennels by the Environmental Protection Authority;
2. The approval of the development would negatively impact upon the amenity of the eleven (11) existing residences that are located within 500 m of the proposed Dog Boarding Kennel through the emission of noise; and
3. The existence of eleven (11) residences within 500 m of the proposed Dog Boarding Kennel with the likelihood that some of these landowners may lodge noise complaints would curtail the establishment and growth of the Dog Boarding Kennel as a business operation."
5 The applicants, by Notice of Appeal dated 17 November 2004, appealed against the respondent's decision. As well, the applicants submitted further correspondence to the respondent on 17 November 2004
(Page 4)
- in which they proposed a reduction in the total number of kennels from 40 to 20. The respondent considered the additional information at its ordinary meeting of 22 December 2004 and resolved to reiterate its previous decision to refuse the application. Although the appeal was initially lodged with the Town Planning Appeal Tribunal, which was abolished as of 1 January 2005, the matter is now to be determined by this Tribunal in accordance with s 167(4)(a) of the State Administrative Tribunal Act 2004 (WA).
Subject land
6 The subject land is referred to as Lot 54 (No 315) Edward Road, Meru and is 6.4072 hectares in area. According to the evidence, the land is cleared and a dwelling, and a shed have been constructed on the lot.
7 Lot 54 is located on the eastern side of Edward Road approximately 250 metres north of the future Southern Transport Corridor/Edward Road intersection and 100 metres south of the Goulds Road intersection.
8 The subject land is located within the "Obstacle Height Limitation Surface Area" for the Geraldton Airport and the Narngulu Industrial Estate buffer in the Greater Geraldton Structure Plan 1999 (the Structure Plan). The implications of this are discussed in more detail below.
The proposal
9 The applicant seeks approval for the establishment of a dog boarding kennel and training facility on the subject land. The proposal entails four open yard areas surrounded on all four sides by rectangular brick structures, which form a quadrangle. It is intended that the facility accommodate 40 kennels and associated facilities such as washroom, feed room, grooming room, office and carport. The proposed facility is to be located at the rear of the existing dwelling and garage, approximately 120 metres from Edward Road.
Planning Framework
Local
10 The subject land falls within the scheme area as defined in the Shire of Greenough Town Planning Scheme No 4 (TPS 4) and is zoned "General Farming" under that scheme.
11 Clause 1.3 of TPS 4 specifies the "General Objects" of the Scheme as follows:
(Page 5)
- "(a) to zone the Scheme Area for the purposes in the Scheme described;
(b) to secure the amenity, health and convenience of the Scheme Area and the inhabitants thereof;
(c) to make provisions as to the nature and location of buildings and sizes of lots when used for certain purposes;
(d) the preservation of places of natural beauty, of historic buildings and objects of historical and scientific interest; and
(e) to make provision for other matters necessary of [sic] incidental town planning and housing."
12 The policy statement for the "General Farming" zone as set out in the "Zoning and Development Table" (Zoning Table) specifies that:
"This zone embraces the broad acre farming of the Shire. It is intended to protect the economic viability of those areas generally and to preserve the rural character and appearance of the area. The lot sizes shall be at the discretion of Council based on what is locally accepted as a viable farm unit, or where a non-farming use is proposed on the amount land required for that purpose."
13 Clause 6.1 of TPS 4 establishes the need for planning approval under the Scheme. Under cl 6.3 of the TPS 4, the Council in determining an application for approval is required to take into consideration a number of matters, including the provisions of the Scheme. The pertinent Scheme provisions in this case are considered below.
14 The Zoning Table indicates the permissibility of uses within the scheme area in various zones. The use class "Dog Kennels" is classified as an "AP" use in "General Farming" zone, that is a use that is not permitted unless:
a) approval to it is given by the Council after the proposal has been advertised in accordance with cl 6.2.2 of the Scheme;
b) it complies with the conditions of the approval (if any) of the Council; and
(Page 6)
- c) it complies with the relevant standards in the Scheme Text and in the Zoning Table.
15 Clause 3.10 sets out a specific list of matters to which regard is to be had when considering an application for planning consent in a "General Farming" zone. The matters are as follows:
"(a) the need to protect the economic viability of the rural land use generally;
(b) the need to preserve the rural character and rural appearance of the area;
(c) the need to ensure that the existing standard of roads, water and electricity supply and other services is sufficient for the additional demands that the proposed development would create; and
(d) the need to ensure that water supply standard similar to Clause 3.9.3 are met."
16 Other relevant matters specified in cl 6.3 to which regard is to be given in the consideration of an application for planning approval include:
"(a) the provisions of [the] Scheme and of any other town planning scheme affecting the land the subject of the application or affecting land in the vicinity;
(b) the nature of the proposed development in relation to the development of any land within the vicinity thereof;
(c) the size, shape and character of the parcel of land to which the application relates and the nature and siting of the proposed building, the view from the building and the interruption of view likely to be caused by the proposed building;
(e) any submissions received by Council; …
(g) the existing and likely future amenity of the neighbourhood, including (but without limiting the generality of the foregoing) the question of whether the proposed development is likely to cause injury to the amenity, including injury due to the emission of light, noise, electrical interference, vibration, smell, fumes,
(Page 7)
- smoke, vapour, steam, soot, ash, dust, grit, oil, liquid wastes or waste products; …
- (i) what parking facilities are available or proposed and likely requirements for parking; [and]
(j) any other matters the Council considers relevant."
17 Reference was made during the hearing to the draft town planning scheme, referred to as the Shire of Greenough Town Planning Scheme No 5 (TPS 5). Mr Lancaster, who is the manager of Town Planning and Development of the Shire of Greenough, advised that the scheme was currently with the Department for Planning and Infrastructure waiting consent from the Minister for Planning to advertise. The provisions of TPS 5 were not argued as a reason for refusing the application.
Regional
18 The Geraldton Region Plan (1999) (the Plan) seeks to provide a framework for the future management, protection and coordination of regional planning in the region. A key objective of the Plan is to provide a link between State and local planning and a balance between environmental, social and economic factors. It is intended to provide a basis for statutory planning and development control at the local level.
19 The Structure Planshows that the subject land is located within the Narngulu Industrial Estate buffer and that the "General Farming" zoned land in this particular area has potential for future light industry.
20 Mr Lancaster advised the Tribunal that at this point of time the Narngulu Industrial Estate buffer had not been incorporated into TPS 4 but its inclusion was under consideration by the Council.
21 The subject land is also located within the Obstacle Height Limitation Surface Area for the Geraldton Airport, and as such height limitation applies to all future development. According to the evidence, this proposal will not compromise the controls relating to the 77.7 metre Obstacle Limitations Surface and is not an issue.
Planning issues
22 The respondent contended that the proposed development did not comply with subclauses (b), (c) and (e) of the "General Objects" as specified in cl 1.3 of TPS 4. Mr Lancaster identified noise as the major source of emissions from the dog kennels. He asserted that dog kennels
(Page 8)
- generated noise that requires an appropriate buffer distance from residential land use and referred to draft guidelines prepared by the Environmental Protection Authority in 1997. According to Mr Lancaster, these draft guidelines identify single residential as a "sensitive" land use, regard noise and odour as potential impacts of the proposed activity, and recommend a 500 metre buffer distance for "Dog kennel zones" in rural zones. Accepting the position of the draft guidelines, Mr Lancaster contended that the proposed use would not be compatible with the surrounding residential uses and would have a negative impact on the amenity of the eleven existing residences located within 500 metres of the proposed use.
23 Mr Reader accepted that dog kennels had the potential to cause adverse impacts, but he considered that the noise emissions could be significantly reduced through design and use of acoustic measures to ensure the proposal met the Environmental Protection Authority's noise regulations (Environmental Protection (Noise) Regulations1997). Mr Reader considered that the design features incorporated into the proposed kennels (such as, the configuration of the structures, the materials of construction and the overlapping of the roof over the wall structure), contributed to reducing the emission of noise from the kennels. He also indicated that he was prepared to use "citronella" collars on dogs that barked incessantly and to restrict the pick up and drop off times of dogs at the premises to an hour and half in the morning and the same in the late afternoon.
24 Mr Reader considered the location of the proposed kennels to be ideal given the surrounding land uses. He explained that the subject land is located within the Narngulu Industrial Estate buffer and that there were a number of other industrial type uses located within the "General Farming" zone (within the buffer area) in close proximity to the subject land. He referred to a bulk haulage company, pet meat processing, storage units, a fertiliser factory, chemical storage and liquid fertiliser warehouse. Messrs Reader and Lancaster jointly identified some of these uses on a plan during the hearing.
25 Mr Reader elaborated further on the operation of the bulk haulage company, which is located two lots south of the subject land, and explained that the business operated around the clock and that iron ore was being loaded and carted from the site. The respondent did not dispute this assertion.
(Page 9)
26 Mr Reader also made reference to three regional transport infrastructures, the proposed Southern Transport Corridor alignment, the existing railway line servicing the port and, the Geraldton airport. It was Mr Reader's contention that the amenity of the surrounding area was adversely affected by the existing transport links and that with the construction of the Southern Transport Corridor the amenity of the area would only further deteriorate.
27 Mr Lancaster, in his witness statement, concedes that an activity such as a dog kennel could be considered as compatible with the intent of the Narngulu Industrial Estate buffer. He further indicated during the hearing that long-term strategic planning envisages this area as a buffer or a light industrial area, eventually resulting in the existing residential uses becoming non-conforming uses. Mr Lancaster also made the following comments in relation to the transitional treatment of the area by the respondent:
" … there have been instances where applications such as warehouses or storage sheds have been approved in that area, … where they have been felt not to have an impact on surrounding land uses because they do meet the general strategic direction…"
Planning assessment
28 As the use class "Dog Kennels" is an "AP" use in the "General Farming" zone, the use is not permitted unless three criteria have been satisfied, the first being that the proposal has been advertised in accordance with cl 6.2.2 of TPS 4. The respondent prior to the refusal of the application did not advertise the proposal for public comment. Given the defined meaning of an "AP" use under cl 2.2.2 of TPS 4, the Tribunal was of the view that if it was to consider approving the proposed use, the proposal needed to be advertised in accordance with requirements specified in cl 6.2.2.
29 The Tribunal ordered the respondent to advertise the proposal in accordance with cl 6.2.2.2 of TPS 4. The advertising period extended from 10 August 2005 to 1 September 2005, during which the respondent received a total of 18 submissions and one "objecting petition" signed by 51 people. Eight of the submissions had "no objection" to the application, nine submissions "objected" to the proposal and one submission was received expressing indifference to the proposed use.
(Page 10)
30 The key issues in the submissions related to proximity to existing and proposed residential lots, noise pollution, increase in traffic, waste disposal, devaluation of property and the total number of dogs to be housed on the subject land. Of most significance is the submission received from the Department of Environment, which stated the following:
"The proposed dog boarding kennel and dog training facility would be located approximately 140 [metres] from the nearest noise sensitive premises. The Department after further reviewing the proposal does not believe this distance is sufficient for compliance with the Environmental Protection (Noise) Regulations. Additionally, the Environmental Protection Authority has set a recommended minimum distance of 500 [metres] from dog kennel to a noise sensitive premises and the current 140 [metres] is substantially less than this recommended distance. Therefore, the Department can not support this proposal.
31 Mr Reader received a copy of all the submissions and was provided with an opportunity to make written submissions in reply. Mr Reader, in response, proposed reducing the number of boarding places to a maximum of 20, a position he had withdrawn from at the hearing as he indicated that the design of the compound required the forty kennels to ensure noise attenuation. He also reiterated the acoustic measures he proposed to incorporate in the design of the facility to reduce any noise emissions, which he considered to be sufficient to ensure that the proposed use would not adversely impact on the amenity of the surrounding residential uses. Mr Reader indicated a revised position on the disposal of waste products and suggested that waste would be recycled through the use of a worm/compost system, whereas at the hearing he had indicated that solid wastes would be collected and disposed of at the tip. No design details of the recycling proposal were included in his submissions.
32 Mr Reader also addressed the location of the subject land in relation to the Narngulu Industrial Estate, the Geraldton airport and surrounding non-residential land uses and argued that other industrial activities such as Patience Bulk Haulage and Hounds Hilton Kennels operated in areas not recommended by the Environmental Protection Authority. In relation to the issue of traffic, Mr Reader argued that the impact on the neighbours caused by the additional traffic as a result of the proposed kennels would be minimal.
(Page 11)
33 Although the subject land is zoned "General Farming" under TPS 4, the evidence shows that there is a regional policy framework and regional strategies that have planning implications for the future development of the area due to its location within the Narngulu Industrial Estate, and its proximity to the Geraldton airport and the proposed Southern Transport Corridor alignment. In the regional context, the subject land lies within the Narngulu Industrial Estate buffer, which has been identified in the Structure Plan as an area with potential for future light industry. This strategic direction is yet to be incorporated into TPS 4, although Mr Lancaster indicated that the respondent had approved uses such as warehouse and storage sheds in the buffer area as they were considered to be consistent with the strategic objectives for the area and did not impact on the surrounding land uses.
34 From the evidence presented, the immediate locality is best described as an area in transition and susceptible to pressures for the establishment of intermediary uses, such as the one proposed. The nature and the future long-term strategic planning objectives for the area suggests that a dog boarding kennel and training facility would be a suitable transitional use. However, it is essential that the introduction of such a use not adversely affect the existing amenity of residences within the locality. The submissions objecting to the proposal raised a number of particularly relevant concerns relating to noise and waste disposal, which need to be considered carefully in the determination of this application. Although Mr Reader's submissions indicate the incorporation of some acoustic measures into the design of the kennels in an attempt to reduce the level of noise emissions from the property, the details were scant and there was no acoustic expert evidence to support Mr Reader's assertions that these measures would achieve a reduction in noise level emissions. The level of detail provided in relation to the disposal of waste products was minimal, although the respondent did not identify this issue as a concern. Nevertheless, the Tribunal is concerned about this issue as the method of disposal can have odour impacts, which may adversely affect the amenity of the locality.
35 Furthermore, the Department of Environment in its assessment of the proposal was not convinced that the proposal would comply with the Environmental Protection (Noise) Regulations 1997 and was concerned that the facility would be located substantially less than the recommended distance from noise sensitive premises.
36 The Tribunal considers that there is insufficient evidence provided to allow a proper assessment of the noise impacts of the proposed
(Page 12)
- development or adequate information relating to the disposal of waste products to assess the consequences and impacts of the disposal method on the immediate locality. These issues are critical. Given that there is clearly potential for the proposal to adversely affect the existing amenity of residences in the locality in terms of both noise and odour, the Tribunal is not satisfied that the proposal in its current form is acceptable.
37 For the above reasons the Tribunal makes the following orders:
1. The application for review of the decision of the Shire of Greenough to refuse a planning application for the establishment of a dog boarding kennel and training facility on Lot 54 (No 315) Edward Road, Meru is dismissed.
2. The decision of the Shire of Greenough is affirmed.
- I certify that this and the preceding [37] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS M CONNOR, MEMBER
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