Stein & Anor and Shire of Chapman Valley
[2006] WASAT 105
•1 MAY 2006
STEIN & ANOR and SHIRE OF CHAPMAN VALLEY [2006] WASAT 105
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 105 | |
| TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) | |||
| Case No: | DR:407/2005 | 16 DECEMBER 2005 19 DECEMBER 2005 | |
| Coram: | MR P McNAB (MEMBER) | 1/05/06 | |
| 29 | Judgment Part: | 1 of 1 | |
| Result: | 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 4. Leave is granted for the parties to apply to the Tribunal concerning any issue arising out of carrying out of Order 3 | ||
| 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 District Zoning Scheme – Town Planning Scheme No 1 Shire of Chapman Valley District Zoning Scheme – Town Planning Scheme No 2, cl 4.2.3 Planning and Development Act 2005 (WA), s 241(1) Environmental Protection (Noise) Regulations 1997 (WA) Dog Act 1976 (WA) Shire of Chapman Valley Local Law No 15 |
Case References: | Burnett and Town of Cambridge [2006] WASAT 29 Burns v Mitchell SC [2002] VCAT 1382 Condos Peter & Ors v Maroondah CC [1998] VCAT 590 Cotterill v Young [2000] QPELR 229 Eastern Waste Management Incorporated v City of Tea Tree Gully (1996) 92 LGERA 1 Ellis v Yarra Ranges SC [2005] VCAT 175 Ganian Pty Ltd v Blacktown City Council [2000] NSWLEC 200 Jefson Pty Ltd v Sydney City Council (1957) 2 LGRA 237 Land Alliance Pty Ltd v City of Belmont (2005) 39 SR (WA) 119; [2005] WASAT 100 Matijesevic v Logan City Council (No 2) [1984] 1 Qd R 599; (1983) 51 LGERA 51 Nicholls and Western Australian Planning Commission [2005] WASAT 40 O'Reilly v Surf Coast SC [2003] VCAT 1433 Pineridge Boarding Kennels v Hornsby Shire Council [2004] NSWLEC 94 Reader & Anor and The Shire of Greenough [2005] WASAT 298 Spicuzza v Casey CC [2004] VCAT 810 Agnew Clough Ltd v Town Planning Board (WATPAT, No 1 of 1979, 1 May 1980, unreported) Baus v East Gippsland SC (1996/14948, Victorian Administrative Appeals Tribunal, 31 March 1997, unreported) Carter v Casey CC [2004] VCAT 73 M Culph v Burnie City Council [2005] TASRMPAT 8 JB & EM Davies v Meander Valley Council & S & A Blazley & WK & HW Firth [1994] TASRMPAT 112 Diaz v S of Pyrenees and W & M Buchanan [2001] VCAT 236 Dumbleton & Anor and Town of Bassendean [2005] WASAT 145 A Donald Gray & Others v Shire of Hepburn (1995/32600, Victorian Administrative Appeals Tribunal, 30 September 1996, unreported) Iles and Shire of Serpentine-Jarrahdale [2003] WATPAT 37 Denis McNamara V Morninington Peninsula SC & Rosebud Retirement Village Services Inc [1999] VCAT 1662 Martin, KJ and Anor v Western Australian Planning Commission [2003] WATPAT 118 Permanent Trustee Australia Ltd v Western Australian Planning Commission (1998) 20 SR (WA) 192 Pineridge Boarding Kennels v Hornsby Shire Council [2004] NSWLEC 94 P Scott and Anor v Hobart City Council & B Best [2000] TASRMPAT 89 R & J Sushames and Others v Latrobe Council and DS & AJ Lynch [2001] TASRMPAT 223 Tang v City of Stirling (1982) 5 APA 161 |
Orders | 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. ,4. Leave is granted for the parties to apply to the Tribunal concerning any issue arising out of carrying out of Order 3. |
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 MEMBER : MR P McNAB (MEMBER) HEARD : 16 DECEMBER 2005
- 19 DECEMBER 2005
- 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 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
(Page 2)
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 District Zoning Scheme – Town Planning Scheme No 1
Shire of Chapman Valley District Zoning Scheme – Town Planning Scheme No 2, cl 4.2.3
Planning and Development Act 2005 (WA), s 241(1)
Environmental Protection (Noise) Regulations 1997 (WA)
Dog Act 1976 (WA)
Shire of Chapman Valley Local Law No 15
Result:
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
4. Leave is granted for the parties to apply to the Tribunal concerning any issue arising out of carrying out of Order 3
Category: B
Representation:
Counsel:
Applicants : Mr P Quinlan
Respondent : Mr C Slarke
Solicitors:
Applicants : Altorfer & Stow
Respondent : McLeods
- <SolicitorList Name1="Altorfer & Stow", Type1="Applicants", Name2="Altorfer & Stow", Type2="Applicants", Name3="McLeods", Type3="Respondent",>
<CounselList Name1="Mr P Quinlan", Type1="Applicants", Name2="Mr P Quinlan", Type2="Applicants", Name3="Mr C Slarke", Type3="Respondent",>
Case(s) referred to in decision(s):
Burnett and Town of Cambridge [2006] WASAT 29
Burns v Mitchell SC [2002] VCAT 1382
Condos Peter & Ors v Maroondah CC [1998] VCAT 590
Cotterill v Young [2000] QPELR 229
Eastern Waste Management Incorporated v City of Tea Tree Gully (1996) 92 LGERA 1
Ellis v Yarra Ranges SC [2005] VCAT 175
Ganian Pty Ltd v Blacktown City Council [2000] NSWLEC 200
Jefson Pty Ltd v Sydney City Council (1957) 2 LGRA 237
Land Alliance Pty Ltd v City of Belmont (2005) 39 SR (WA) 119; [2005] WASAT 100
Matijesevic v Logan City Council (No 2) [1984] 1 Qd R 599; (1983) 51 LGERA 51
Nicholls and Western Australian Planning Commission [2005] WASAT 40
O'Reilly v Surf Coast SC [2003] VCAT 1433
Pineridge Boarding Kennels v Hornsby Shire Council [2004] NSWLEC 94
Reader & Anor and The Shire of Greenough [2005] WASAT 298
Spicuzza v Casey CC [2004] VCAT 810
Case(s) also cited:
Agnew Clough Ltd v Town Planning Board (WATPAT, No 1 of 1979, 1 May 1980, unreported)
Baus v East Gippsland SC (1996/14948, Victorian Administrative Appeals Tribunal, 31 March 1997, unreported)
Carter v Casey CC [2004] VCAT 73
M Culph v Burnie City Council [2005] TASRMPAT 8
JB & EM Davies v Meander Valley Council & S & A Blazley & WK & HW Firth [1994] TASRMPAT 112
Diaz v S of Pyrenees and W & M Buchanan [2001] VCAT 236
Dumbleton & Anor and Town of Bassendean [2005] WASAT 145
A Donald Gray & Others v Shire of Hepburn (1995/32600, Victorian Administrative Appeals Tribunal, 30 September 1996, unreported)
Iles and Shire of Serpentine-Jarrahdale [2003] WATPAT 37
Denis McNamara V Morninington Peninsula SC & Rosebud Retirement Village Services Inc [1999] VCAT 1662
(Page 4)
Martin, KJ and Anor v Western Australian Planning Commission [2003] WATPAT 118
Permanent Trustee Australia Ltd v Western Australian Planning Commission (1998) 20 SR (WA) 192
Pineridge Boarding Kennels v Hornsby Shire Council [2004] NSWLEC 94
P Scott and Anor v Hobart City Council & B Best [2000] TASRMPAT 89
R & J Sushames and Others v Latrobe Council and DS & AJ Lynch [2001] TASRMPAT 223
Tang v City of Stirling (1982) 5 APA 161
(Page 5)
Summary of the Tribunal's decision
1 Mr and Mrs Stein sought planning approval from the respondent Shire for the development and use of their 8 hectare property for the boarding of up to 20 dogs. The land was zoned under a Town Planning Scheme (Scheme), dating from 1982, as "general farming" and dog kennels could be approved as a use for the land.
2 Since 1982, strategic planning and development pressures had identified the land for urban development and a new Scheme would change the zoning and prohibit dog kennels altogether.
3 The Shire refused permission citing these developments as well as amenity concerns, mainly the potentially excessive noise from barking dogs. The surrounding land was fairly tranquil and largely uninhabited. There was, however, a neighbouring caravan and holiday park with some permanent residents. Dogs were permitted in the caravan park.
4 Mr and Mrs Stein sought a review of the Shire's decision in the Tribunal.
5 The Tribunal agreed with the Shire that the new Scheme and the strategic planning instruments should be considered and given weight in the exercise of the discretion for approval given to the Shire and, on review, to the Tribunal.
6 However, the Tribunal was not persuaded on amenity grounds that the proposal should be refused. Given the present zoning, the expert evidence concerning noise and the relatively limited impact on the surrounding landowners and the general amenity, the proposal should be approved.
7 Extensive conditions to limit noise were proposed. In addition, approval was to be made personal to the applicants and limited to five years in recognition of the transitional nature of the land use.
The subject land and the development proposal
8 This review relates to Lot 8, North West Coastal Highway at Bulla, some 15 kilometres north of Geraldton. The land is just over 8 hectares in size (or 19 acres approximately) and is owned by Mr and Mrs Stein (applicants). The land has been improved by the erection or construction of the following works: the applicants' home and a shed; a horse riding
(Page 6)
- rink and associated stables; a galvanised steel windmill; various fences and unsealed roads or tracks. A horse agistment operation is proposed, and has been approved by the respondent.
9 The applicants seek to establish a dog kennel operation for the boarding of 20 dogs. The respondent, Shire of Chapman Valley, has refused its approval for this use and development of the subject land.
10 The land is mostly cleared, but there is some remnant vegetation. Olive trees have been planted and olive oil is produced. The land's western (seaward) boundary is close to a sand dune, a coastal foreshore strip vested in the Crown. Heading inland, there is a hollow in the middle of the property rising to a steep elevated ridgeline or cap comprised partly of limestone. As will appear below, the dog kennels now proposed to be built upon this land will, if approval is given, nest, towards the centre of the property, more or less in the middle of and at the base of this ridge.
11 The land has what have been described as "panoramic" ocean views. To the north is a caravan or holiday park located on a 14 hectare lot relatively close to the highway; to the south is an undeveloped 8 hectare block. Both of these owners are, in effect, objectors before the Tribunal and were called by the respondent to give evidence in its case.
The original proposal
12 A summary of the applicants' dog kennel proposal is set out in Mr D'Arcy's witness statement (Ex 1). Mr D'Arcy is the respondent's Manager for Planning and Development and its principal witness. It is unnecessary to reproduce the entire proposal. For present purposes it is sufficient to note the following aspects of it:
1. The maximum capacity of the proposed facility would be 20 dogs.
2. The kennel was to be 990 square metres in area.
3. The facility was to be built from besa concrete blocks to a height of 2 metres with a colourbond roof, with a concrete floor for sleeping and veranda areas and a grassed exercise area with a chain mesh fence (or equivalent) and gate for each run.
13 Originally, the kennels were proposed to be built near to the horse stables, approximately 150 metre from the current proposed location.
(Page 7)
The modified proposal
14 During the first day of the hearing the applicants were invited to clarify and better particularise their preferred proposal. This followed earlier attempts in a directions hearing in the Tribunal, on 8 December 2005, to clarify matters and in effect to put the applicants to an election as regards their preferred location of the kennels.
15 The particulars, reproduced below (Ex 4), and an accompanying sketch plan (Ex 5) were prepared in the course of a short adjournment on the first day of the hearing. (This first document has been edited by the Tribunal from the handwritten draft furnished, not only to avoid infelicities of expression and the like, but also so that it otherwise makes sense to the reader.)
16 It will be observed that the modified proposal must also be read or viewed in conjunction with certain other documents (including the original modified proposal – see above; a further sketch plan, already mentioned [Ex 5]; and a papier mâché model [Ex 13]). The "new" proposal is a mixture of further particulars, some alterations (not, however, to the general concept of what was proposed) and a partial response both to the respondent's amenity concerns and its draft conditions. The document reads as follows:
1. The kennels will be located on a pad, namely a flat cut and fill site to the west of the existing house on the subject land. (Thus, the kennels have moved approximately 150 metres to the north-east from an earlier position on the western side of the horse stables.)
2. This pad is about 25 metres east to west, and 30 metres north to south.
3. Excavation will take place 7 – 9 metres to the north and about 10 metres to the east. (This is a partial excavation of the ridge.)
4. The current (formerly proposed) cut is about 3.5 metres high.
5. The new cut will be about 6.5 metres from the highway.
6. Material from this cut will be used to form a new batter on the southern side and will be about 5 metres high.
7. Some of this material will also be used to increase the height of the bund on the northern side of the kennels to a
- height of about 5 metres or greater above the level of the pad.
- 8. It is proposed to landscape these bunds with Geraldton Wax, Melaleuca River Gums, Poincianas; that is a combination of shrubs and trees – some of which are currently being propagated.
9. Access to the kennels and the pad will be via the existing concrete drive, with a new vehicle-passing embankment.
10. The kennels are to be constructed as described on an accompanying sketch plan (Ex 5).
11. The kennels are to be 6 metres deep (front to back). There will also be a 3 metre wide veranda across the length of the western façade.
12. The dog "runs" will each be 9 metres long.
13. The total depth of the kennels and the runs is therefore 18 metres – extending out into the existing pad area by 8 metres.
14. The balance of the pad area is therefore about 17 metres deep – sufficient for parking and the manoeuvring of clients' vehicles (which will need to stop at the house before progressing to the kennels area).
15. Trucks that will visit (about once a month) will also be able to manoeuvre around the balance of the pad area.
16. The veranda roof will form a sound barrier and will deflect sound to the west.
17. Effluent disposal and washing down will be as described in the applicants' submission (that is, spoon drains into septics) and also in accordance with any local laws relating to animal establishments.
18. Control of dust during construction will be by way of water from a fire-fighting tank.
19. Chicken wire will be used on the slope of the bunding and "pig face" will be grown down the slope to help attenuate sound (with drip reticulation).
20. The applicants will be controlling access, as indicated in the respondent's draft conditions.
(Page 9)
- 21. A management policy will include dogs not being in runs during pickup and drop off times, to contain noise inside kennel building.
17 Mr Quinlan also gave a supplementary explanation of the proposal by reference to other photographs before the Tribunal, as did his client, Mrs Stein, in her evidence.
18 It appears that, despite the applicants previously offering to move the kennels to 500 metres from the nearest inhabited dwelling and other incidental management arrangements, the current proposal, set out above, is mainly in response to noise concerns raised by Mr Lloyd, a noise expert engaged by the respondent (see [23] of Mrs Stein's statement).
19 Mr Slarke conceded, properly, that he was not materially prejudiced by the late production of the modified proposal and the accompanying documents and explanation, but he maintained that in any event it still was an inadequate basis for properly determining the matter, as much of the necessary engineering and construction data was missing. In fact, he spent a considerable amount of time cross-examining Mrs Stein in order to elucidate material details of such matters, as well as concerning operational details.
20 Notwithstanding these concerns, as the essential core of the proposal remains substantially the same as that contemplated in the original assessment by the respondent and since it has been better particularised, and as the respondent is not materially prejudiced thereby, the Tribunal should proceed to consider the proposal on its merits, making do, to the best it can, with what material has been provided. In Ellis v Yarra Ranges SC [2005] VCAT 175 the Tribunal noted, at [66]:
"While this is an application where perhaps further details could have been provided at the application stage in the form of acoustic details and environmental management details, I am satisfied that the proposal is acceptable and that some of these matters can be adequately dealt with by permit conditions."
21 In short what is now proposed is a dog kennel divided into five runs, centrally located in the upper part of the subject land, and partly set back into a "bunker" of sorts cut into the ridge, facing out towards the sea.
(Page 10)
The history of the original proposal
22 The applicants' original proposal – which has been modified from time to time, including, as we have seen, during the course of this review – was originally dated early November 2004, and was lodged in December 2004. It was rejected by the respondent in March 2005. After a long process, including (unsuccessful) on-site mediation by another Member of this Tribunal, the matter was eventually heard on 16 and 19 December 2005. Both parties were represented by counsel. Final written submissions were received in the Tribunal on 29 December 2006.
The respondent's case
23 In summary, the respondent believes that the following matters justify refusal of the application:
1. The strategic planning framework indicates that the subject land should be regarded as in transition from rural to urban development, and approval for the development would lead to a conflict of land use objectives.
2. The noise coming from the kennels would create a nuisance; adversely impact upon existing amenity (including visual amenity); and lead to land use conflicts in relation to existing developments in the vicinity of the subject land.
3. There is considerable community and neighbourhood opposition to the proposal based upon amenity concerns and the radical change to the tranquil nature of the locality.
4. There would be regulatory and enforcement problems for the respondent with the management of complaints concerning noise from barking dogs.
24 Mr D'Arcy and others gave evidence about all of these matters.
25 So far as the respondent's case relied upon adverse visual impact and noise and other impact from visiting motor vehicles, the Tribunal rejects these contentions. Visual impact would be minimal, especially given the conditions sought to be imposed (see below). So far as vehicle movements are concerned, this Tribunal adopts the words of the Victorian Tribunal in Burns v Mitchell SC [2002] VCAT 1382 where it was said, at [29]:
"The complaint is that the traffic going to and from the boarding kennels will affect the amenity of the [neighbouring]
(Page 11)
- property. The boarding of up to 20 dogs at any one time will not appear to me to create a major number of vehicle trips to and from the property."
26 Before turning to particular points concerning the other supporting evidence on questions of noise, nuisance, amenity and regulatory enforcement, it is convenient to deal with the planning framework, current and proposed, and related matters.
The planning framework: in transition?
27 The subject land is currently zoned as "general farming" under the Shire of Chapman Valley District Zoning Scheme – Town Planning Scheme No 1 (TPS 1). That scheme came into effect in 1982. The operation of a dog kennel is a discretionary use ("PS") under TPS 1 (see item 35 in the relevant zoning Table).
28 The proper exercise of that discretion is the effective source of the Tribunal's review jurisdiction in this matter.
29 The respondent argues that in a wider planning context the current zoning is "positively misleading". The respondent also submits that it is an "inappropriate" zoning. This arises because of certain more recent development pressures, and related indications reflected in various strategic planning instruments. Consequentially, changes are proposed for the zoning of the land, changing it from farming to residential.
30 The first relevant document – and it is common ground that these instruments are all relevant – is a regional strategic plan produced by the Western Australian Planning Commission (WAPC). This document, the Geraldton Region Plan (June 1999) (Plan), describes the subject land as "future urban" (see the accompanying Structure Plan), and foreshadows that "if the Oakajee development proceeds" the potential for rural-residential subdivision exists in the area (at page 83). Oakajee is a potential industrial site on the coast north of Geraldton, which is proposed for the Kingstream Steel project. The subject land is on the coast and a few kilometres south of the proposed Oakajee site.
31 At the time of writing, the project continues to be the subject of government deliberation and announcements.
32 That Plan points to Oakajee needing housing, infrastructure and community services south of that proposed development.
(Page 12)
33 Mr Slarke, for the respondent, was keen to emphasise that, in context, the emphasis in this Plan was on the future urban or residential-based zoning that was proposed, whether or not Oakajee finally proceeds.
34 This is reflected, says the respondent, in the related Local Rural Strategy (LRS), a planning instrument adopted in 2002 and conditionally endorsed by the WAPC in 2004. The subject land is located in "Precinct No 7" of the LRS and the first listed relevant objective talks of "support [for] the planned expansion of urban and rural residential" (at page 47) in the Precinct. With amendments immaterial for present purposes, as requested by the WAPC, that document is now the Draft Local Planning Strategy (December 2004).
35 Finally, there is the proposed Town Planning Scheme No 2 (TPS 2) of December 2004, which is not yet in force, and which zones the land as "Development" but does not permit dog kennels in that zone (see zoning Table 1, and the definition of "animal establishment" in TPS 2). Consistent with the tenor of the instruments referred to above, the objective of that zoning is on "development for urban, primarily residential purposes …": see cl 4.2.3.
36 It is common ground that the WAPC would assess TPS 2 on the basis of consistency with the Geraldton Region Plan.
37 There are no local planning policies (draft or otherwise) dealing with dog kennels or animal establishments. However, an amendment to TPS 1 ("Amendment No 36") included, at the behest of the Minister, in effect a prohibition on dog kennels, where previously they were or could be permitted, in respect of a "Special Zone" for Lot 20 Chapman Valley Road, land that was previously zoned "Special Rural".
38 Reference was also made to the Draft Northern Geraldton Structure Plan, which was, according to Mr D'Arcy, the respondent's Manager for Planning and Development, "prepared primarily on the basis of Oakajee being predominantly a long term vision". That Plan has apparently not gone out for public comment. It does appear to have, relevant to the subject land, an additional emphasis of the possibility of tourist use for the land, as well as urban and rural residential uses.
39 In light of the conclusions below, that the Tribunal has reached on the other related instruments, it is unnecessary to make any further reference to this draft Plan.
(Page 13)
40 Finally, some other aspects of Mr D'Arcy's evidence should be noted. First, he suggested that the land generally "cannot sustain productive agricultural uses". Nothing in the evidence contradicts that assertion. Next, Mr D'Arcy agreed with Mr Webb (the applicants' expert town planner) that growth is occurring to the south and east of Drummond Cove ("extreme development pressure", he described it as). Drummond Cove is in an adjoining Shire, about 1 kilometre away to the south. Mr D'Arcy was of the view that further development north is impeded by reason of the existence of the general farming zoning. He pointed also to the nearby (east of the highway) lifestyle subdivision of "Parkfalls" (Stage 1), which has been specially rezoned for that purpose.
41 Notwithstanding that Mr Webb thought that the transition was far less certain and far more provisional, in the Tribunal's opinion Mr D'Arcy's view would seem to be, on the material available, generally correct.
42 There was a related debate concerning the difficulty of developing the land, because of the ridge and the topography (already described above). Mr Webb said that "steep slopes and underlying rock would make subdivision of [the subject land for] urban residential purposes difficult and [that it would be] expensive to service". Mr D'Arcy disagreed, saying that Drummond Cove was broadly similar in topography.
43 One of the applicants' immediate neighbours, Mrs Miles-Cadman, had received inquiries from, or on behalf of, developers expressing an interest in purchasing her land. She also said that from engineering inquiries that she had made, that as regards (theoretically) developing her own block there would be some problems "but [that it was] not at all insurmountable". The evidence, on balance, points to residential and associated development of these blocks which could not be ruled out on any of these grounds.
44 These facts combined with development pressure, ocean views and frontage, and ready access from the highway all pointed to an anomalous zoning, in Mr D'Arcy's view.
45 As has been mentioned, the Tribunal generally agrees with this opinion. Moreover, it is consistent with all of the relevant material before the Tribunal.
(Page 14)
Status of the draft planning instruments
46 The evidence from Mr D'Arcy was to the effect that it was expected that around July 2006, after a 90-day advertising period, the respondent would begin deliberating over any public comments received before TPS 2 was sent back to the WAPC. Mr D'Arcy said that in the ordinary course TPS 2 would be law in about 18 months to two years time.
47 In the Tribunal's experience, this estimate seems to be not unreasonable.
48 As Mr Slarke foreshadowed, Variation No 2 to the Statement of Planning Policy No 1 (gazetted on 3 February 2006) identifies the Geraldton Region Plan as part of the State Planning Framework. The Tribunal must "have due regard" to that policy and framework in its own deliberations: see s 241(1) of the Planning and Development Act 2005 (WA).
49 The Tribunal is satisfied, from the evidence of Mr D'Arcy and having regard to the interlocking instruments referred to above, that the rezoning of the land away from general farming to a residential status is both justified and highly probable. Although Mr Quinlan cross-examined Mr D'Arcy at length about the "uncertainty" surrounding development to the north (and matters such as the true likelihood of associated housing growth; and the real situation as regards rural residential possibilities), these speculations do not detract from the very clear and consistent statements of planning principle relating to the subject land found in the relevant instruments to which the Tribunal has referred.
50 Mr Quinlan for the applicants cautioned, with respect correctly, against the Tribunal treating these planning proposals as "de facto zoning". He further argued that the Tribunal should, in effect, place little weight on these various proposals if, as here, such matters as the scale of the proposal, the existing land use, the surrounding landscape and the time-frame of any development pressures and rezoning were all taken into account.
51 The Tribunal does not, with respect, accept these secondary contentions. In the Tribunal's view, even taking into account all of the factors identified by Mr Quinlan, TPS 2 ought to be regarded as a "seriously entertained planning proposal"; in this particular case and its context, the Tribunal should assign (without fixing it in stone) some weight to TPS 2 in its deliberations: cf Nicholls and Western Australian
(Page 15)
- Planning Commission [2005] WASAT 40 and the discussion of the relevant principles therein.
52 Thus, it is at least arguable that, quite apart from any other matters, the applicants must show how – that is, they bear a practical burden to this effect – their development proposal is (or can be made) broadly consistent with an imminent, in planning terms, change of zoning from general farming to urban residential (including therein possible activities consistent with that zoning – such as, for example, some tourism activities).
53 This is so particularly where the proposed use would be, for future cases, strictly prohibited under TPS 2. Alternatively, the applicants need to show a good case on the planning merits why these strictures ought not to impede their proposal. Of course, such a task is not impossible, as dog kennels do exist in some residential areas, albeit most often, it would seem, in rural-residential areas.
54 This is a matter that the Tribunal will return to below, both generally and in relation to the duration of any planning approval.
55 It is convenient to turn to the next main issue in the proceedings: the noise from barking dogs.
Joint noise experts' report and related noise evidence
56 Our starting point, as regards noise, should be the location of the nearest inhabitable dwelling house. This appears to be that of Mr Espinos, a permanent resident of the adjoining caravan or holiday park. He resides in the south-east corner (near to the highway) of the park. Mr D'Arcy calculated that Mr Espinos' house was about 250 metres from the proposed site. Mrs Bell, the owner of the caravan park, appears to concede that he would be about 200 metres from the proposed site. Mrs Stein estimates it to be about 210 metres. Mr Espinos (the resident affected) says it would be 150 metres.
57 In the Tribunal's view, this house is located just over 200 metres from the proposed site.
58 Mr T Reynolds (from Herring Storer Acoustics) was originally engaged by the applicants to assist with issues to do with noise emanating from the proposed kennels. Mr D Lloyd (from Lloyd Acoustics) assisted the respondent. Pursuant to Orders from the Tribunal, both of these
(Page 16)
- experts were required to assist the Tribunal by the production of a written joint experts' report.
59 That document produced a fair degree of commonalty. It appears to have been based substantially on the latest model produced during the hearing of what the proposed dog kennels would finally look like and as regards their proposed location (or something very similar).
60 In Land Alliance Pty Ltd v City of Belmont (2005) 39 SR (WA) 119; [2005] WASAT 100,a three-Member panel of this Tribunal observed, at [29]:
"It is clear from the evidence provided by both parties, that the modelling of noise is an inexact science. The results will depend upon how long the representative test period is, whether an influencing factor is assigned, and the quality of the data set used to underpin the modelling. It will depend upon whether a value is added to take into account the tonality, modulation or impulsiveness of the noise. It will also depend upon where, within the noise receiving property, the measurement of noise is taken."
61 As Mr Slarke's cross-examination of the experts illustrated, this observation would to some degree equally apply here in relation to the evidence on noise. Nevertheless, there were areas of substantial agreement. They may be summarised thus:
1) Lawful compliance could be achieved in relation to the Environmental Protection (Noise) Regulations 1997 (WA) (the Regulations).
2) A well-managed kennel could generally limit barking to less than 10% of the time (putting to one side disagreement as to exactly how the "10%" figure is calculated as regards the Regulations).
3) The calculated noise level would be, in any event, objectively "minimal" or "low" and would "likely to be masked by the general background levels" (per Mr Lloyd, with the proviso that there was the potential loss of amenity to the northern boundary of Lot 7 – which is presently uninhabited).
62 Mr Lloyd said that "it is extensively documented that dog barking is considered to have annoying characteristics". Mr D'Arcy observed that
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- "compliance with noise regulations doesn't necessarily negate amenity and nuisance, coupled with varying tolerances from different people".
63 At this point it is worth noting the related evidence of Mr Hadden.
64 Mr Hadden works for the respondent as an Environmental Health Officer pursuant to an arrangement with another local authority. His opinion was that dogs were likely to bark from time to time and at any time, and not just during drop-offs and meal times. Noise complaints from dogs were the most common form of complaint. He noted the subjective nature of noise sensitivity with the observation that "many people find noise from dog barking particularly annoying". Mr Hadden was, surprisingly, unaware of the respondent's local law relating to dog licensing and control but that does not detract from his other evidence, which may be generally accepted.
65 A local council policy quoted by the Court in Pineridge Boarding Kennels v Hornsby Shire Council [2004] NSWLEC 94 at [8] is to similar effect:
"Complaints in regard to barking dogs most commonly arise as a result of sleep disturbance. Where a barking dog continually causes disturbance to the sleep of neighbours, it is a source of concern. Dogs which bark during the daytime may also be a source of annoyance to residents at home during the day."
66 Mr Lloyd thought that some contingency management to handle any particularly noisy dog would be necessary. Mrs Stein, one of the applicants, agreed to such a suggestion, at least so far as citronella dog control collars were concerned. This is a matter that the Tribunal will return to below.
67 Finally, it may be conveniently noted here that the Environment Protection Authority (EPA) of WA in their Guidance for the Assessment of Environmental Factors: Separation Distances between Industrial and Sensitive Land Uses (No 3, June 2005) recommends that for rural zones (because of noise and odour) a buffer zone of 500 metres ought to be allowed, with 1000 metres for urban zones. These recommendations are premised on the concerns noted above, and should be taken into account by the Tribunal. See also the Victorian EPA guidelines referred to below.
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Respondent's case: supporting evidence from the neighbours
68 The respondent called a number of objecting neighbours. These were Mr Bellis (Lot 11, two lots to the north), Mrs Miles-Cadman (adjoining Lot 7 to the south – vacant), Mrs Bell (Lot 3, the adjacent caravan or holiday park known as "Drummond Cove Holiday Park"). It is unnecessary to set out all of this evidence in precise detail, although some particular reference ought to be made regarding the caravan or holiday park.
69 The Tribunal intends no disrespect to the objectors by this course, particularly as they took the time to attend the Tribunal in Perth and give evidence. In general, all of the objecting neighbours had amenity concerns, pointing out the "lifestyle" nature of the current land use; the present "tranquillity" of the area; and their concerns about noise and odour emanating from the kennels. It was suggested that noise carried in the area (the barking of dogs could already be heard); that the prevailing winds were from the south and that noise would particularly carry to the caravan park.
70 Opinions might have varied or changed amongst some of the neighbours over time, but such concerns are essentially shared by all of them and their position now, for the overwhelming majority of those neighbours expressing an opinion, is one of opposition to the proposal.
71 Mrs Bell's operation consists of a "4-Star" rated caravan park with 40 short/long term caravan sites; five permanent caravan tenants; seven permanent park home tenants; 10tourist cabins and a variety of facilities, including some animals and a bush/beach trail. Mrs Bell also relayed the concern of the permanent residents of her park, saying that "[e]very single one of my permanents that live in the park today and past have signed that petition of objection [to the application]". Her permanent resident's, Mr Espinos, situation is noted above.
72 Finally, it should be noted that the applicants owned dogs, and that dogs were also permitted in the adjoining caravan park, but that the situation was effectively monitored by the park owners to prevent dogs being a nuisance.
73 There is really no dispute between the parties about all of this evidence, as far as it goes. It may be accepted that these parties are genuinely apprehensive that they or their successors in title would become victims of excessive noise pollution (see above).
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74 The issue is whether these justified and reasonable amenity concerns are sufficiently made out to displace a potential use of the land, which its current zoning, albeit increasingly an anomalous case, contemplates as permissible.
75 The Tribunal turns to address this and related issues.
Discussion of the planning issues
76 "[I]f a dog boarding or breeding establishment cannot establish in a rural zone, then where would it establish?" is an aphorism quoted from time to time in the Victorian Civil and Administrative Tribunal: see, eg, O'Reilly v Surf Coast SC [2003] VCAT 1433, a case cited by both counsel here.
77 This Tribunal agrees with that proposition, at least as a general starting point. Here, but for the anomalous zoning discussed above, the Tribunal would be strongly inclined to approve the applicants' proposal on appropriate conditions. That would be consistent with the intent of the current zoning and the thrust of planning decisions in analogous circumstances. For example, in Spicuzza v Casey CC [2004] VCAT 810 the Tribunal said, at [37]:
"Given the nature of the area, … the Tribunal does not considered [sic] that the use of the land for the purpose of keeping 20 dogs will result in an unreasonable impact on the amenity of the area. The Tribunal considers that the subject land is appropriately located in relation to surrounding properties to ensure that there will be minimal impact from the keeping of the number of dogs proposed. The Tribunal is further of the view that any potential impacts such as noise from barking dogs can be appropriately controlled by the applicants."
78 In that case, the nature of the area there under consideration was "rural residential with a majority of properties in the area keeping animals". Here the subject land is surrounded by large areas of mainly, at the moment, uninhabited land. Apart from the caravan park with its transient and permanent residents – some with dogs – and the nearest of which is over 200 metres to the proposed kennels site, there would be relatively few persons directly affected by the proposal. The conditions to be imposed, extending beyond what the respondent has sought, combined with good management should ensure that the impact of noise will be kept to a minimum. The expert evidence regarding noise tends to support this view. It is possible that if a 500-metre buffer zone were enforced then the
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- noise impact would be greater than what is contemplated by the current proposal.
79 In 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.
80 As will be seen below, good management will be assisted by making the approval personal to the applicants, and, recognition of the transitional nature of land use in the area will be recognised in a duration of the approval fixed for a number of years, much less than that suggested by the applicants.
Duration of approval
81 During the course of the hearing it became apparent, when Mr Webb was being examined by the Tribunal, that the applicants were offering to operate their kennels for a limited period (say, about 10 to 15 years) in order to deal with, as the Tribunal understands it, the possible problem of changing land use in the area. Mr Quinlan confirmed this position in his final address.
82 The highest authorities have endorsed such arrangements of limited duration approval. Thus, in Eastern Waste Management Incorporated v City of Tea Tree Gully (1996) 92 LGERA 1 (SA FC) Perry J (Cox and Lander JJ concurring) said (at 7):
"Not infrequently there will be situations which from the planning point of view may sensibly and conveniently be met by limiting the operation of a consent to a limited period. Jacobs J gave examples of such situations during the course of his judgment [below]. (See the reference, for example, to Fazari v Salisbury City Corporation (No 271 of 1973, unreported) which related to the temporary use of market gardening on residential land not yet ready for residential development.)"
83 To similar effect is Matijesevic v Logan City Council (No 2) [1984] 1 Qd R 599; (1983) 51 LGRA 51 (FC) where Connolly J (WB Campbell CJ and Matthews J concurring) said (at 603; 55):
"The power of a local authority to impose relevant and reasonable conditions upon the ground [sic] of a town planning approval is not in doubt. It may be accepted that such
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- conditions may limit the time during which the right may be enjoyed: Jefson v Sydney City Council (1957) 2 LGRA 237."
84 In the Jefson Pty Ltd v Sydney City Council (1957) 2 LGRA 237 case mentioned by Connolly J, Hardie J (at 239) imposed a seven year approval on the use of certain premises because "it was necessary to take into account the possibility of the local scheme being amended … to provide for the subject area being a residential one, rather than an industrial one".
85 In Ganian Pty Ltd v Blacktown City Council [2000] NSWLEC 200, Sheahan J imposed the following condition "This consent expires on 31 December 2025" in respect of an extractive industry and landfill development site approval which had previously been used as quarry and was located within an urban development area, near to a caravan park. Of course, such an industry necessarily has an implied duration in any event, but the power to impose such a condition is illustrated thereby.
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.
Approval personal to the applicants
87 It has been noted that "[w]hile planning permits attach to the land, they may also attach to the applicant. Where the management expertise and experience of the applicant are likely to be significant in reducing the amenity impacts of proposed uses such as billiard parlours, amusement parlours, dog kennels, broiler chicken sheds etc, the tribunal may impose a condition which makes the permit 'personal' to the applicant.": Planning & Environment Victoria (Butterworths Looseleaf Service) at [5.10.5], emphasis added.
88 As indicated above, it would assist in reducing amenity impacts if in this case approval were to be made personal to the applicants.
Conditions
89 A number of the respondent's "without prejudice" draft conditions, to be imposed if approval were given, relate wholly or partly to noise control, monitoring and attenuation (see in particular cls 2, 4, 7 – 14, below). The complete conditions are as follows:
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- "1. 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.
2. The development is limited to a maximum of twenty (20) dogs.
3. 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.
4. The individual dog kennel enclosures shall be lined with acoustic materials to the satisfaction of the local government.
5. The existing vehicular crossover onto North West Coastal Highway shall be upgraded to accord with Main Roads WA specifications.
6. All internal trafficable areas shall be constructed to a stabilised, compacted and adequately drained standard to the satisfaction of the local government.
7. 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.
8. 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).
9. 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.
- 10. The conditions set out in Schedule 2 of the Shire of Chapman Valley Dog Local Laws No. 15, … shall apply to the development.
11. Noise emissions from the development shall at all times comply with Environmental Protection (Noise) Regulations.
12. (a) The landowner shall be required to pay for an annual noise audit, 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 its expense.
14. (a) The landowners must provide to the local government a Management Policy for approval. 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 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."
90 Under the respondent's Local Law No 15, made under the Dog Act 1976 (WA) (see cl 10 above), a number of complementary or supplementary specifications and obligations would be imposed by way of statutory "[c]onditions of a licence for an approved kennel establishment". It is unnecessary to reproduce them here except to note that, if approval were given, the following obligation would arise (under cl 4.8(1) and Schedule 2):
"(p) noise, odours, fleas, flies and other vectors of disease must be effectively controlled."
91 The following "Noise Control Guidelines" relating to dog kennels are reproduced in the Planning & Environment Victoria (Butterworths Looseleaf Service) from an Information Bulletin published by the Environment Protection Authority of Victoria.
92 They provide as follows (corrected for typographical errors):
"[14] Dog Kennels
The problems caused by the perpetual barking of dogs has been known to exist at distances as far as 500 metres from the actual source. The following criteria for dog kennels have therefore been assembled to limit both the physical stimuli to the dogs as well as the outbreak of noise from the kennels.
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- 1. The kennels should be located at least 500 metres away from residential areas.
2. Some fully enclosed or acoustically baffled kennels should be available to house particularly noisy animals at a ratio of 1:15.
3. Electronic masking noise devices should be provided to reduce audible stimuli to the dogs.
4. Kennels should be constructed to visually screen stimuli such as other dogs, animals, traffic or passers-by.
5. Access to kennels should be restricted solely to staff.
6. Feeding of the dogs should be restricted to within the day time hours of 7.00 am to 6.00 pm.
7. Exercise of the dogs may only be performed within the hours of 9.00 am to 5.00 pm.
8. A responsible person must be available on site 24 hours per day.
9. Kennels should be constructed of such a material so as to provide an appropriate reduction in the emission of noise. Materials such as masonry and cement sheeting would provide a suitable structural basis.
10. The kennels should be positioned so as to utilize the ability of the topography to reduce noise."
93 Further, in Cotterill v Young [2000] QPELR 229 the Court (Quirk DCJ) at 229 - 230 reproduced some standard licence conditions issued to a dog kennel operator by that State's EPA, as follows:
"Noise
2. a. The holders of this environmental authority must ensure that excessive noise is not emitted from the licensed premises.
b. The holders of this environmental authority are deemed to have complied with condition 2(a) if they have taken the following measures:
- (i) Whenever reasonably practicable, visual separation must be maintained between dogs;
(ii) Visual separation must be maintained between the collection and driveway area and other dogs;
(iii) The existing screens … must be maintained between the licensed premises and adjoining premises;
(iv) Except for emergencies (such as malnourishment, or on veterinary advice), dogs may only be fed between the hours of 11.00 am and 3.00 pm;
(v) Except for emergencies (such as removal of sick dogs and otherwise on veterinary advice), opening hours are to be restricted to between 7.00 am and 10.00 am and between 3.00 pm and 5.00 pm Monday to Saturday;
(vi) The attendance bell (which is fitted with an on/off switch and timing device) must be maintained so as to prevent repeated use at intervals of less than three minutes and is to be switched off during closing times;
(vii) Background music must be played in the kennels at all times;
(viii) The licence holders must maintain the existing intercom system to the kennels for the purpose of soothing any dogs identified as particularly noisy;
(ix) Any dogs identified by the licence holders, their employees or the administering authority as particularly noisy, must be kept in the sound attenuated kennels that are fully enclosed and mechanically
- ventilated at night and/or controlled by other animal management practice.
- (x) All dogs are to be confined to the sound attenuated kennels between the hours of 8.00 pm – 7.00 am except to allow for entry or exit of the licence holders, their staff, veterinarians or, in extraordinary circumstances, the owners of the dogs.
(xi) The top kennels, excluding the exercise runs, are to be sound attenuated so as to prevent noise emissions within sixty days."
94 As already indicated above, in the Tribunal's view, a reasonable regulatory regime should extend to pick up some of these additional obligations to attenuate noise, particularly those relating to electronic masking noise devices; intercom devices to soothe troublesome dogs; and special kennels for particularly noisy dogs. This should be done in advance of any noise audit imposed by the proposed conditions.
95 The Tribunal notes that these type of obligations have been around for some time in Australia: see, eg, the discussion in the Victorian Civil and Administrative Tribunal in Condos Peter & Ors v Maroondah CC [1998] VCAT 590 at [49], a case cited by Mr Slarke. They were partly foreshadowed in this case, at least as regards citronella collars. (In Reader & Anor and The Shire of Greenough [2005] WASAT 298 citronella collars were also mentioned, at [23]. That case largely failed because of a lack of detail, the existence of residences at 140 metres from the kennels site – with 40 dogs proposed, and an adverse assessment from the Department of Environment.)
96 In Burns v Mitchell SC, a case cited by Mr Quinlan, it was observed, at [35]:
"Appropriate noise attenuation construction can significantly reduce the level of noise coming from any building including dog kennels. Further appropriate stimuli such as television screens and music can assist in settling dogs and reducing incidents of noise. That is what is proposed in this application. Further the kennels are to be benched into the site and appropriate mounding provided on several sides. Indeed the
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- application goes even further to provide for a colourbond fence around the compound."
97 If agreement cannot be reached on these matters, then the Tribunal will need to hear from the parties on how these proposed additional obligations should be met.
Orders of the Tribunal
98 There will be a number of matters to be finalised between the parties. These include the engineering and construction specifications identified by Mr Slarke. As the Tribunal similarly required in Burnett and Town of Cambridge [2006] WASAT 29, at [41]:
"The parties will be directed to negotiate in good faith as to the final conditions to be imposed. Those conditions are to be consistent with the indications of the Tribunal just given. If the parties cannot agree on the final form of the conditions by way of a minute of consent orders, then the Tribunal shall rule upon them. That course should not be necessary if the parties approach the matter constructively and in good faith. And, of course the Tribunal retains the flexibility, if circumstances warrant it, to make a costs award should unreasonable intransigence be shown by either party on this issue."
99 The Orders of the Tribunal will therefore be:
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.
4. Leave is granted for the parties to apply to the Tribunal concerning any issue arising out of carrying out of Order 3.
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- I certify that this and the preceding [99] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR P McNAB, MEMBER
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