Stein and Anor and Shire of Chapman Valley
[2006] WASAT 105 (S)
•1 MAY 2006
STEIN & ANOR and SHIRE OF CHAPMAN VALLEY [2006] WASAT 105 (S)
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 105 (S) | |
| TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) | |||
| Case No: | DR:407/2005 | 16 DECEMBER 2005 19 DECEMBER 2005 | |
| Coram: | MR L GRAHAM (SESSIONAL MEMBER) | 1/05/06 | |
| 13/09/06 | |||
| 10 | Judgment Part: | 1 of 1 | |
| Result: | That planning approval is granted in accordance with the attached conditions | ||
| B | |||
| PDF Version |
| Parties: | TIMOTHY STEIN NICOLA STEIN SHIRE OF CHAPMAN VALLEY |
Catchwords: | Town planning – Development and use of land – Approval sought for a 20 dog boarding kennel – Land located in "general farming" zone – Discretionary use – Rural zoning now anomalous – Whether proposed new Town Planning Scheme a "seriously entertained planning proposal" – New scheme prohibits dog kennels – Consideration of various strategic planning instruments – Such instruments pointing to residential or urban future use – New scheme consistent with such instruments – Surrounding development pressure – Surrounding land largely uninhabited and tranquil – Neighbouring caravan or holiday park – Dogs permitted in caravan park – Amenity concerns mainly relating to noise – Nearest habitable dwelling 200 metres from site – EPA buffer zone recommended at 500 metres – Consideration of additional conditions to minimise noise – Duration of approval for a fixed period – Approval personal to the applicants – Approval granted on conditions |
Legislation: | Shire of Chapman Valley Town Planning Scheme No 1 Shire of Chapman Valley Town Planning Scheme No 2 |
Case References: | Stein & Anor and Shire of Chapman Valley [2006] WASAT 105 Nil |
Orders | 1. That the unresolved conditions (2) and (16) in the respondent's "without prejudice" draft conditions are determined in accordance with these reasons.,2. That planning approval for the proposed use is granted in accordance with the following conditions.,Conditions,1. This approval is personal to the applicants. The approved use may only be carried on while the kennels are owned and operated by the applicants.,2. All development shall be in accordance with the plan/s endorsed by the State Administrative Tribunal, and subject to any modifications required as a consequence of any other condition of this approval.,3. The development is limited to a maximum of twenty (20) dogs.,4. The roof and walls of the dog kennel development shall be clad with non-reflective material/s consistent in colour with the existing horse stables building.,5. (a) The dog kennel roof shall be lined with acoustic materials to the satisfaction of the local government.,(b) A minimum of one kennel enclosure shall be acoustically sound proofed to the satisfaction of the local government and used as required to house particularly noisy dogs as part of the overall management practices for the kennels.,6. The existing vehicular crossover onto North West Coastal Highway shall be upgraded to accord with Main Roads WA specifications.,7. All internal trafficable areas shall be constructed to a stabilised, compacted and adequately drained standard to the satisfaction of the local authority.,8. A landscaping plan shall be prepared and submitted to the local government for endorsement prior to the issue of a building licence showing suitable vegetation buffer and screening around the dog kennel development and along the side boundaries of the property to assist in the attenuation of noise. Such landscaping is to be implemented within twelve (12) months from the date of this approval and shall continue to be maintained to the satisfaction of the local government.,9. The open times of the dog kennels to the public shall be limited to the following:,Monday to Sunday 7.30 am – 9.00 am; 4.30 pm – 6.00 pm (Christmas Day Closed).,10. The daily exercise of dogs shall be;,(a) limited to a maximum of five (5) animals at anyone time;,(b) undertaken in a designated/controlled dog exercise area segregated from the approved horse agistment yards to the satisfaction of the local government.,11. The dog kennel development shall be established, operated and managed pursuant to the provisions and conditions detailed in the Shire of Chapman Valley Dogs Local Law No. 15, as attached.,11. Noise emissions from the development shall at all times comply with Environmental Protection (Noise) Regulations 1997 (WA).,12. (a) The landowner and local government shall be undertake an annual noise audit under shared cost arrangements, which may include noise monitoring and acoustic analysis, to assist in ascertaining whether the development is in compliance with the preceding condition.,(b) The acoustic expert carrying out the noise audit shall be instructed by the local government.,(c) This condition does not prevent the local government from carrying out any other acoustic analysis or noise measurements at any time, at a shared cost arrangement between the proponent and the local government.,13. If a noise audit produced pursuant to the preceding condition recommends that any measure should be taken by the landowners to reduce any noise level or impact, the landowners shall comply with any such recommendation at their expense.,14. (a) The landowners must provide to the local government a Management Policy for approval that adequately covers the day to day operations of the dog kennels inclusive of many of the other conditions of approval (i.e. operating times, access, use of collars) as well as specific procedures and information relating to hygiene, welfare, safety, security, conflict etc. including level of interaction/restrains between dogs and horse activities on the property. The use shall not commence until the Management Policy has been approved by the local government.,(b) The use must at all times be carried out in accordance with the approved Management Policy.,(c) The Shire may amend the approved Management Policy in consultation with the proponent in the event it is satisfied it is appropriate to do so, whether as a result of a noise audit, or otherwise.,15. A building licence must be applied for and issued by the local government prior to the commencement of any works on the site.,16. The dog kennel development is required to be connected to/serviced by an approved effluent disposal system to the satisfaction of the local government's Environmental Health Officer.,17. Signage for the dog kennel development is subject to further application to the local government and Main Roads WA.,18. The kennels shall be furnished with background music to be played at all times through an internal system for the purpose of soothing all dogs and attenuating noise.,19. Electronic collars (e.g. citronella) shall be provided and used to reduce excessive noise emissions emanating from noisy dogs as part of the overall management practices of the kennels.,20. Access to the kennels and associated exercise runs shall be restricted to staff and those acting in a professional or official capacity (i.e. veterinarian, Shire or RSPCA officer) only. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) CITATION : STEIN & ANOR and SHIRE OF CHAPMAN VALLEY [2006] WASAT 105 (S) MEMBER : MR L GRAHAM (SESSIONAL MEMBER) HEARD : 16 DECEMBER 2005
- 19 DECEMBER 2005
DECISION : 13 SEPTEMBER 2006 FILE NO/S : DR 407 of 2005 BETWEEN : TIMOTHY STEIN
- NICOLA STEIN
Applicants
AND
SHIRE OF CHAPMAN VALLEY
Respondent
Catchwords:
Town planning – Development and use of land – Approval sought for a 20 dog boarding kennel – Land located in "general farming" zone – Discretionary use – Rural zoning now anomalous – Whether proposed new Town Planning Scheme a "seriously entertained planning proposal" – New scheme prohibits dog kennels – Consideration of various strategic planning instruments – Such instruments
(Page 2)
pointing to residential or urban future use – New scheme consistent with such instruments – Surrounding development pressure – Surrounding land largely uninhabited and tranquil – Neighbouring caravan or holiday park – Dogs permitted in caravan park – Amenity concerns mainly relating to noise – Nearest habitable dwelling 200 metres from site – EPA buffer zone recommended at 500 metres – Consideration of additional conditions to minimise noise – Duration of approval for a fixed period – Approval personal to the applicants – Approval granted on conditions
Legislation:
Shire of Chapman Valley Town Planning Scheme No 1
Shire of Chapman Valley Town Planning Scheme No 2
Result:
That planning approval is granted in accordance with the attached conditions
Category: B
Representation:
Counsel:
Applicants : Mr P Quinlan
Respondent : Mr C Slarke
Solicitors:
Applicants : Altorfer & Stow
Respondent : McLeods
Case(s) referred to in decision(s):
Stein & Anor and Shire of Chapman Valley [2006] WASAT 105
Case(s) also cited:
Nil
(Page 3)
Summary of Tribunal's decision
1 These reasons are supplementary to the reasons for decision of the State Administrative Tribunal delivered on 1 May 2006 by Mr Peter McNab (member).
2 In its considerations the Tribunal has had regard to a set of 22 "without prejudice" draft conditions of planning approval prepared by the respondent. Draft condition 2 and draft condition 16 were unresolved in negotiations between the parties.
3 The Tribunal has examined these unresolved matters and has determined that the date of commencement of operations for a five (5) year approval period for the dog kennel use will be 1 July 2007, or such earlier date if or when the kennel use becomes operational before 1 July 2007.
4 The Tribunal has accepted the respondent's submissions in relation to the "without prejudice" draft condition 16, and the determination is included in the Orders.
Reasons for decision
5 In the matter Stein & Anor and Shire of Chapman Valley [2006] WASAT 105, the Tribunal has had regard to the reasons delivered on 1 May 2006 by Member Peter McNab.
6 In those reasons the Orders determined that:
1. The application for review is allowed.
2. The decision under review is set aside and in substitution thereof there will be a decision granting planning approval on such conditions as are reasonable and appropriate to be approved by the Tribunal.
3. The parties are directed to negotiate with each other in good faith to produce a set of reasonable and appropriate final conditions, not inconsistent with the reasons for decision of the Tribunal, to be filed by the respondent within 28 days of the date of this decision.
(Page 4)
- 4. Leave is granted for the parties to apply to the Tribunal concerning any issue arising out of carrying out of Order 3.
7 It is now clear to this Tribunal that both parties have attempted to negotiate in good faith with respect to the production of a set of 22 conditions; two of which remain unresolved. The Tribunal will now determine those two conditions as supplementary reasons.
8 The first matter of contention arises with respect to Condition No 2 of the respondent's "without prejudice" draft conditions. Condition 2 requires that the approval have effect for a period of five (5) years only, commencing from 1 May 2006.
9 The applicants seek a longer period of time whereby the five (5) year approval period comes into effect from the date of commencement of operations.
10 On this matter, the Tribunal is aware that under existing Shire of Chapman Valley Town Planning Scheme No 1 (TPS 1) the subject land is zoned "general farming" and that the operation of a dog kennel is a discretionary use.
11 The Tribunal is also aware that under proposed Shire of Chapman Valley Town Planning Scheme No 2 (TPS 2) the subject land will be zoned "development", which does not permit a dog kennel use.
12 In par 51 of the reasons it is clear that proposed TPS 2 ought to be regarded as a "seriously entertained planning proposal" and could become law within 18 months to two years time. In further submissions from Mr Slarke for the respondent, it does appear possible that TPS 2 could become law in 12 months time but that is by no means certain.
13 However, as stated in par 79 of those reasons:
"79In the next few years, there is little doubt that development pressure and rezoning will turn the surrounding land into something quite different from what it is now – probably residential or tourist development, or both."
14 As further explained in par 86 of the reasons:
"86 As foreshadowed above, the Tribunal here is inclined to the view that in the circumstances of this application
- approval should be given to operate the kennels for a period of five years. This period gives the applicants a reasonable time-frame for the use of the land whilst the surrounding area moves to its new development potential for residential and associated uses after rezoning, itself some two years or so away."
15 The important words here are:-
"…approval should be given to operate the kennels for a period of five years…"
- and the Tribunal is not inclined to include all of the pre-planning time period within the five year operation period as proposed by the respondent.
16 Nor, must it be said, is the Tribunal inclined to be as generous with the pre-planning time period as proposed by the applicants in their submissions.
17 What is required is a fair and reasonable decision in the circumstances of this case, and in so doing try to interpret the rationale in the reasons for decision of 1 May 2006.
18 In the submissions by the applicants, there are several time periods outlined. The first of these is to allow three (3) months maximum for the necessary applications to come forward for consideration and to allow a further three (3) months maximum to allow the respondent to decide the applications. The applicants are then seeking a further two (2) years maximum to commence operations following the issue of the necessary licences. The five year approval period would begin on commencement of operations.
19 A worst case scenario, due to continual delays to the process, would see the operations not commencing for two and a half years from the date of this decision. The effect of this would be to see the operations commencing at or around March 2009, with the dog kennel use extending through to a time at or around March 2014.
20 On the other hand, the respondent seeks by the wording of its proposed condition 2, a termination of the use in May 2011.
21 Having regard to the fact that a great deal of pre-planning and research has already been undertaken by the applicants as evidenced in the reasons and further work has or would be done by them in terms of
(Page 6)
- planning, logistics of building construction and business administration during the period of time the necessary licences are being sought, the Tribunal hereby sets the date of commencement of operations as at 1 July 2007, or such earlier date if or when the kennel use become operational before 1 July 2007.
22 On the question of a Management Policy, which has been acknowledged by the parties as a necessary requirement, the respondent seeks a comprehensive document which adequately covers the day to day operations of the dog kennels, together with the authority to amend the Policy in consultation with the applicants. Also, it is proposed that the use is not to commence until the Policy has been approved by the local government.
23 Alternatively, the applicants propose a more flexible arrangement whereby the Management Policy will result from consultation between the parties acting in good faith, and that amendments will occur from time to time in the same consultative way as the need arises.
24 In the view of the Tribunal, the responsibility of the preparation of the initial Management Policy rests with the applicants, in consultation with the respondent, with both parties acting in good faith.
25 On the other hand, the responsibility for monitoring adherence to the Policy, must rest with the local government and if from time to time it becomes necessary to amend the Policy, the initiative to do so, on reasonable and substantiated grounds, must rest with the respondent in consultation with the applicants.
26 With respect to the Management Policy, the Tribunal expects the parties to act in good faith, and for the document to be prepared relatively quickly, and that an approval to the Policy to allow the use to commence will not be unreasonably withheld by the respondent. To do so would give rise to a further application for review and the further involvement of this Tribunal.
27 In light of this determination, the Tribunal will shortly produce, and provide to the parties, a copy of this determination and a consolidated Order setting out all of the conditions of approval.
(Page 7)
Orders
1. That the unresolved conditions (2) and (16) in the respondent's "without prejudice" draft conditions are determined in accordance with these reasons.
2. That planning approval for the proposed use is granted in accordance with the following conditions:
(1) This approval is personal to the applicants. The approved use may only be carried on while the kennels are owned and operated by the applicants.
(2) This approval has effect for a period of five (5) years only, commencing from 1 July 2007, or from such earlier date if or when the kennel use becomes operational before 1 July 2007.
(3) All development shall be in accordance with the plan/s endorsed by the State Administrative Tribunal, and subject to any modifications required as a consequence of any other condition of this approval.
(4) The development is limited to a maximum of twenty (20) dogs.
(5) The roof and walls of the dog kennel development shall be clad with non-reflective material/s consistent in colour with the existing horse stables building.
(6) (a) The dog kennel roof shall be lined with acoustic materials to the satisfaction of the local government.
(b) A minimum of one kennel enclosure shall be acoustically sound proofed to the satisfaction of the local government and used as required to house particularly noisy dogs as part of the overall management practices for the kennels.
- (7) The existing vehicular crossover onto North West Coastal Highway shall be upgraded to accord with Main Roads WA specifications.
(8) All internal trafficable areas shall be constructed to a stabilised, compacted and adequately drained standard to the satisfaction of the local authority.
(9) A landscaping plan shall be prepared and submitted to the local government for endorsement prior to the issue of a building licence showing suitable vegetation buffer and screening around the dog kennel development and along the side boundaries of the property to assist in the attenuation of noise. Such landscaping is to be implemented within twelve (12) months from the date of this approval and shall continue to be maintained to the satisfaction of the local government.
(10) The open times of the dog kennels to the public shall be limited to the following:
Monday to Sunday 7.30 am – 9.00 am; 4.30 pm – 6.00 pm (Christmas Day Closed).
(11) The daily exercise of dogs shall be;
(a) limited to a maximum of five (5) animals at anyone time;
(b) undertaken in a designated/controlled dog exercise area segregated from the approved horse agistment yards to the satisfaction of the local government.
(12) The dog kennel development shall be established, operated and managed pursuant to the provisions and conditions detailed in the Shire of Chapman Valley Dogs Local Law No. 15.
(13) Noise emissions from the development shall at all times comply with Environmental Protection (Noise) Regulations 1997 (WA).
(Page 9)
- (14) (a) The landowner and local government shall undertake an annual noise audit under shared cost arrangements, which may include noise monitoring and acoustic analysis, to assist in ascertaining whether the development is in compliance with the preceding condition.
(b) The acoustic expert carrying out the noise audit shall be instructed by the local government.
(c) This condition does not prevent the local government from carrying out any other acoustic analysis or noise measurements at any time, at a shared cost arrangement between the proponent and the local government.
(15) If a noise audit produced pursuant to the preceding condition recommends that any measure should be taken by the landowners to reduce any noise level or impact, the landowners shall comply with any such recommendation at their expense.
(16) (a) The landowners must provide to the local government a Management Policy for approval that adequately covers the day to day operations of the dog kennels inclusive of many of the other conditions of approval (i.e. operating times, access, use of collars) as well as specific procedures and information relating to hygiene, welfare, safety, security, conflict etc. including level of interaction/restraints between dogs and horse activities on the property. The use shall not commence until the Management Policy has been approved by the local government.
(b) The use must at all times be carried out in accordance with the approved Management Policy.
- (c) The Shire may amend the approved Management Policy in consultation with the proponent in the event it is satisfied it is appropriate to do so, whether as a result of a noise audit, or otherwise.
- (17) A building licence must be applied for and issued by the local government prior to the commencement of any works on the site.
(18) The dog kennel development is required to be connected to/serviced by an approved effluent disposal system to the satisfaction of the local government's Environmental Health Officer.
(19) Signage for the dog kennel development is subject to further application to the local government and Main Roads WA.
(20) The kennels shall be furnished with background music to be played at all times through an internal system for the purpose of soothing all dogs and attenuating noise.
(21) Electronic collars (e.g. citronella) shall be provided and used to reduce excessive noise emissions emanating from noisy dogs as part of the overall management practices of the kennels.
(22) Access to the kennels and associated exercise runs shall be restricted to staff and those acting in a professional or official capacity (i.e. veterinarian, Shire or RSPCA officer) only.
- I certify that this and the preceding [27] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR L GRAHAM, SESSIONAL MEMBER
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