Vary Enterprises Pty Ltd and City of Belmont
[2008] WASAT 130
•6 JUNE 2008
VARY ENTERPRISES PTY LTD and CITY OF BELMONT [2008] WASAT 130
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2008] WASAT 130 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:451/2007 | 13 MAY 2008 | |
| Coram: | MR J ADDERLEY (SENIOR SESSIONAL MEMBER) | 6/06/08 | |
| 22 | Judgment Part: | 1 of 1 | |
| Result: | Application for review upheld Decision of respondent set aside and conditional approval granted | ||
| B | |||
| PDF Version |
| Parties: | VARY ENTERPRISES PTY LTD CITY OF BELMONT |
Catchwords: | Development application Use not listed by the Town Planning Scheme Proposed "day care for dogs" in an officewarehouse complex City of Belmont Objectives of Mixed Use zone Noise Odour Waste management Adequacy of access and parking Compatibility with other uses Consistency with objectives of zone |
Legislation: | City of Belmont Town Planning Scheme No 14, cl 10.5.1, cl 10.5.2(a), Amendment No 52, Table 1 Environmental Protection (Noise) Regulations 1997 (WA) Planning and Development Act 2005 (WA) |
Case References: | Nil |
Orders | 1. The application for review is allowed.,2. The decision of the respondent made on 27 November 2007 to refuse approval for a "day care for dogs" use at Unit 6 (Strata Lot 6), No 102 Robinson Avenue, Belmont, is set aside and a decision is substituted that approval is granted subject to the following conditions:,(i) The use must be carried out in accordance with the following conditions.,(ii) Prior to the occupation or use of the development, a noise control plan including the following measures must be lodged with the City of Belmont for approval:,- construction of solid walled open pens for dogs;,- rubberised flooring;,- sound absorbing panels on inside of external walls and hanging from the ceiling;,- pens to be sited away from roller doors;,- minimise time external doors are open; and,- all dogs to be supervised at all times.,Thereafter, the use must be carried out in accordance with the approved plan.,(iii) Hours of operation are limited to between 7 am and 9 pm.,(iv) A maximum of 30 dogs per day shall be cared for at any one time.,(v) No loading or unloading of vehicles is to occur that interferes with the parking of vehicles in the car park by visitors and employees. All car parking bays in the car park area to be made available at all times for the parking of vehicles by visitors and employees. For the removal of doubt, this condition does not apply to vehicles which are delivering dogs to, or collecting dogs from, the site.,(vi) Day care staff must use allocated parking bays to ensure a drop off area adjacent to the premises is available for clients. All bays to be clearly marked.,(vii) Prior to occupation or use of the development, a waste management plan to address the removal of dog waste from the site and specific measures to control odour and cleanliness on site shall be prepared and submitted to the City of Belmont for approval. Thereafter, the use must be carried on in accordance with the approved plan.,(viii) All storage to occur within the building. Clause 10.5.2(a) of the City of Belmont Town Planning Scheme No 14 prohibits external storage in the "Mixed Use" zone.,(ix) The overnight boarding of dogs is not permitted on the premises.,(x) No food may be given to dogs kept on the premises except:,- as treats as part of play or training; or,- where required, as an adjunct to the administration of a dog's requirements for medication.,All clients must be informed about this limitation on the services provided.,(xi) Prior to any dog being accepted for care at the premises, it must successfully undertake a "personality/character" test for the purpose of determining whether the animal is compatible with the day care facility. Dogs which are aggressive or anti-social shall not be accepted for care. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : VARY ENTERPRISES PTY LTD and CITY OF BELMONT [2008] WASAT 130 MEMBER : MR J ADDERLEY (SENIOR SESSIONAL MEMBER) HEARD : 13 MAY 2008 DELIVERED : 6 JUNE 2008 FILE NO/S : DR 451 of 2007 BETWEEN : VARY ENTERPRISES PTY LTD
- Applicant
AND
CITY OF BELMONT
Respondent
Catchwords:
Development application Use not listed by the Town Planning Scheme Proposed "day care for dogs" in an officewarehouse complex City of Belmont Objectives of Mixed Use zone Noise Odour Waste management Adequacy of access and parking Compatibility with other uses Consistency with objectives of zone
Legislation:
City of Belmont Town Planning Scheme No 14, cl 10.5.1, cl 10.5.2(a), Amendment No 52, Table 1
(Page 2)
Environmental Protection (Noise) Regulations 1997 (WA)
Planning and Development Act 2005 (WA)
Result:
Application for review upheld
Decision of respondent set aside and conditional approval granted
Category: B
Representation:
Counsel:
Applicant : Mr P Webb (Acting as Agent)
Respondent : Mr C Slark
Solicitors:
Applicant : Peter D Webb & Associates (Town Planners)
Respondent : McLeods Barristers & Solicitors
Case(s) referred to in decision(s):
Nil
(Page 3)
Summary of Tribunal's decision
1 This is a review of the City of Belmont's decision to refuse an application for a "day care for dogs" use in a strata unit of an office-warehouse complex.
2 The respondent argued that the proposed use should not be allowed because of the potential for emission of noise and odour impacts incompatible with other premises either existing or potentially contemplated in the area.
3 The respondent also cited uncertainty of the adequacy of parking and access arrangements for drop off and pick up of dogs, and arising from that, the possible conflict between dogs in the car park and persons attending other premises in the complex.
4 On the basis of these characteristics, the proposed use was inconsistent with the objectives of the prevailing zoning and should therefore not be permitted.
5 The applicant argued that the characteristics of the premises were such that, based on anticipated sound levels, noise transmission to adjoining premises would be within acceptable limits prescribed by the Environmental Protection (Noise) Regulations 1997 (WA). Further arrangements to attenuate noise and to manage waste disposal would ensure that the use was conducted in a manner compatible with the interests of adjoining businesses.
6 Overall parking for the complex was in excess of requirements. Access and parking arrangements for the drop off and pick up of dogs were adequate and practical.
7 The Tribunal concluded that the applicant's arguments should be preferred, based on the substance of the evidence presented. The Tribunal was persuaded that, subject to implementation of intended measures to control noise and odour emissions, the proposed use would be conducted without unreasonable impact on the amenity of the locality, and was therefore capable of being identified as a use consistent with the objectives of the prevailing zoning.
8 The application for review was upheld and the proposed development was conditionally approved.
(Page 4)
Introduction
9 This is an application for review of the decision by the City of Belmont (respondent) to refuse a development application for a "day care centre for dogs" at Unit 6 (Strata Lot 6), No 102 Robinson Avenue, Belmont (site or Unit 6).
10 The application for development approval was submitted to the respondent on 22 May 2007.
11 Following advertising of the proposal to owners and occupiers of properties surrounding the site and consideration of submissions arising, the respondent issued its decision of refusal and the reasons therefor on 27 November 2007.
12 An application for review of the respondent's decision was lodged with the State Administrative Tribunal (Tribunal) on 24 December 2007.
The proposed development and its context
13 The proposed development is described as a change of use of the site from "warehouse" to "day care for dogs".
14 The site is the rearmost unit of a modern, office-warehouse complex comprising six strata titled warehouse premises.
15 The complex is of brick, concrete and metal deck construction.
16 The complex is serviced by a paved vehicle access system and 54 car parking bays, four of which are allocated for the use of Unit 6. Access to the rear of Unit 6 is facilitated by a right of carriageway.
17 The majority of premises in the surrounding area are also used for warehousing. Showrooms and offices front Robinson Road.
18 The proposed "day care for dogs" use involves the following features:
• the premises are to be divided into three dog activity areas through the construction of solid walled pens which allow for viewing windows and internal gates;
• internal walls are to be fitted with an overhang to ensure that dogs cannot jump over the walls;
(Page 5)
- • "time-out" pens are to be located within each area to allow dogs to rest when required;
• gates are to be located between reception, office, toilets and staff amenity areas;
• initial hours of operation are from 7 am to 7 pm four days per week, expanding to 7 am to 9 pm seven days per week;
• the peak drop-off and collection times are anticipated to be between 7 am to 9 am and 4 pm to 9 pm, respectively;
• no dogs are kept on the site overnight;
• staff numbers are between one and four persons at any one time;
• 150 "spaces" are available per week, with a maximum of 30 dogs per day if operating at full capacity;
• a "dog taxi" operates and collects eight to 10 dogs on an average day;
• all dogs accepted for day care are required to be de-sexed, vaccinated and flea and heartworm-treated. Aggressive dogs are not accepted. Dogs are collared and identified;
• faeces are disposed of by collection in sealed plastic bags which are frozen and collected on a daily basis;
• dogs are not fed other than:
- by way of "treats" as part of play or training; or
- where required as an adjunct to the administration of a dog's requirement for medication;
• food kept on the premises is "dry" pet food, and is stored in locked metal cabinets in the area shown on the application plans; and
• internal noise control measures include:
- construction of solid walled open pens;
- - rubberised flooring;
- sound absorbing panels on the inside of external walls and hanging from the ceiling;
- pens to be located away from roller doors;
- the minimisation of time during which external doors are kept open; and
- all dogs are supervised at all times.
Statutory and policy instruments
19 The site is located within a 'Mixed Use' zone under the City of Belmont Town Planning Scheme No 14 (TPS 14 or Scheme).
20 Clause 10.5.1 of TPS 14 provides:
"The Mixed Use zone is intended to allow for the development of a mix of varied but compatible land uses such as housing, offices, showrooms, amusement centres, eating establishments and appropriate industrial activities which do not generate nuisances detrimental to the amenity of the district or to the health, welfare and safety of its residents. Buildings should be of a high standard of architectural design set in pleasant garden surrounds with limited vehicular access from properties to primary roads."
21 Table 1 of TPS 14 lists uses that are permitted, able to be permitted with the exercise of discretion, or which are not permitted in the Mixed Use zone.
22 Of contextual relevance to this review are the following uses that are able to be approved within the Mixed Use zone at the discretion of the respondent:
• Child care premises;
• Educational establishment;
• Family day care;
• Fast food outlet/takeaway;
• Funeral parlour;
(Page 7)
- • Garden centre;
• Grouped dwelling;
• Health centre;
• Hotel;
• Industry-light;
• Industry-service;
• Medical centre;
• Multiple dwelling;
• Nursing home;
• Office;
• Public amusement;
• Residential building;
• Restaurant;
• Transport depot;
• Service departments;
• Showroom;
• Vet consulting rooms;
• Vet hospital; and
• Warehouse.
23 Notable uses, listed as not permitted within the Mixed Use zone, include:
• Bed and breakfast;
• Dog kennels;
• General, hazardous and noxious industry; and
• Stables.
(Page 8)
The respondent's decision
24 The respondent's decision was set out in two parts.
25 Ms R Vary (applicant), the owner of Unit 6, was firstly advised that the application was refused for the following reason:
1) A "day care centre for dogs" can reasonably be determined as falling within the interpretation of "dog kennels" under TPS 14, which is a use that is not permitted in all zones in the Scheme and therefore is refused.
26 The respondent further determined that if the proposed "day care centre for dogs" was not correctly classified as a "dog kennel" use and should otherwise constitute a "use not listed" by the Scheme, then the use is not appropriate at this location for the following reasons:
1) The subject tenancy is not within a stand alone building with direct frontage to a public road.
2) The proposed "day care for dogs" use is not considered compatible with the surrounding land uses.
3) The proposed "day care centre for dogs" is likely to have an adverse impact on the amenity of other businesses in the location.
Preliminary issue determined by the Tribunal
27 The preliminary issue was raised as to whether a proposed "day care centre for dogs" should not be approved because it falls within the definition of "dog kennels" under TPS 14.
28 The Tribunal published its decision and reasons on this issue on 20 March 2008.
29 The Tribunal made the following order:
"1. The preliminary issue is answered as follows:
'The applicant's proposed use of Unit 6, 102 Robinson Avenue, Belmont for a "day care centre for dogs" is not classified as falling within the "dog kennels" use class under the City of Belmont Town Planning
- Scheme No 14 and is a use falling within the category "use not listed" under that Scheme.'
- …"
The respondent's argument
30 The respondent argued that the proposed "day care for dogs" use was inappropriate in the Mixed Use zone. The use is potentially a source of noise and odour emissions, incompatible with other premises and land uses sensitive to such emissions, which are lawfully existing or encouraged by the Scheme in this area.
31 Additionally, the respondent argued that the arrangements for car parking and "drop off - pick up" of dogs were uncertain and potentially inadequate.
32 Ms K Adsett, a senior town planning officer employed by the City of Belmont, appeared as a witness for the respondent.
33 Ms Adsett said that it was apparent that the proposed "day care centre for dogs" will generate noise and odour which will need to be managed by the applicant. Additionally, there is a potential for conflict to occur between dogs and the tenants and customers of surrounding business premises. These characteristics of the use indicate a potential for significant nuisance detrimental to the amenity of the locality.
34 Ms Adsett was of the opinion that the proposed use is very similar to "dog kennels", which is a use not permitted in the zone.
35 Given the circumstances described, Ms Adsett was of the opinion that the proposed use would not be compatible with the objectives of the Mixed Use zone.
36 Ms Adsett described the proposed process for the collection of animal waste by staff, the intended disposal arrangements, and the wash down and cleaning procedures.
37 Ms Adsett was of the view that if staff were not attentive and did not follow the measures proposed by the applicant, then the risk of odour generated by the use would be heightened and unreasonable.
38 On the question of noise, the principal concern would be the noise made by barking of dogs. Ms Adsett acknowledged the applicant's commission of Noise and Vibration Measurement Systems Pty Ltd (NVMS), a firm with
(Page 10)
- acoustic measurement expertise, to undertake an investigation of the noise attenuation characteristics of Unit 6. Ms Adsett nevertheless observed that no noise modelling was carried out by NVMS which would give any idea about the level of noise that could be generated by the proposed use.
39 Submissions received by the respondent from the proprietors of surrounding premises indicated their major concern was the noise that would be made by barking dogs. The report prepared by NVMS does not appear to have taken into account the noise of barking dogs outside Unit 6 when they are being dropped off or being picked up.
40 Ms Adsett queried the certainty of arrangements for car parking proposed by the applicant. Four parking bays are allocated to Unit 6 according to the strata plan. These are dispersed remotely among the 54 car parking bays provided for the whole complex. Other than these four dispersed bays, it is not clear what right the applicant has to exclusively use the four car parking bays immediately adjacent Unit 6. It is also not clear whether the number of bays available will be sufficient to cater for the number of vehicles that will drop off and collect dogs at peak times.
41 Ms Adsett said that conducting the proposed use in a building which houses six tenancies with shared car parking facilities would give rise to an unacceptable risk that other occupiers and clients of businesses may be attacked or intimidated by dogs arriving or departing the premises.
42 In order to avoid the sort of conflict envisaged, it would be preferable for the proposed use to be located in a stand alone building with its own frontage to a road. Examples of similar uses elsewhere occurred in this configuration.
43 Given the problems described, Ms Adsett was of the view that the proposed "day care centre for dogs" would not be compatible with neighbouring land uses.
44 Under examination, Ms Adsett acknowledged certain other land uses with some similarities to the proposal that could be allowed in the zone, including "vet consulting rooms" and "vet hospital".
45 Ms Adsett also acknowledged that "child care premises" could be allowed in the Mixed Use zone. In accordance with the respondent's development control policies, a "child care premises" could also be allowed in residential areas.
(Page 11)
The applicant's argument
46 The applicant argued that the "day care for dogs" use, conducted in accordance with the management practices proposed to be put in place, would not compromise the amenity of the locality.
47 The proposed use would be similar in character to other uses allowable in the Mixed Use zone.
48 Practical arrangements for customer access and parking will be available.
49 The proposed use is compatible with the prevailing and intended objectives for the area and therefore ought to be allowed.
50 The applicant informed the Tribunal of relevant features of the proposal (as described in the "Proposed development and its context" section of the report).
51 On the issue of animal waste disposal, the applicant identified that faecal waste would be immediately collected and disposed of by toilet flush. The premises had three toilets. One toilet would be designated for animal waste disposal and the others retained for staff. This method was preferred over the previously contemplated procedure of freezing excrement and engaging a daily waste collection service. Either option is practical and effective in restricting odour emanation.
52 On the matter of parking and "drop off/pick up" arrangements, the applicant advised that she will provide a "dog shuttle-bus" service catering for collection and drop off of up to 10 dogs. This service will be unloaded and loaded within the internal driveway of Unit 6, thus avoiding any use of shared parking or possible contact of the dogs with any persons outside.
53 Other customers dropping off dogs would do so between 7 am to about 9 am or 10 am. Collection would be from about 3 pm or 4 pm until close of business.
54 Doors would be closed and locked outside the "drop off/pick up" times.
55 The approximate time for a "drop off" or "pick up" could be up to 10 minutes, although, on re-examination, the applicant indicated that the time taken could be as little as three minutes.
(Page 12)
56 The site is entitled to the use of four car parking bays in accordance with the strata plan. Additionally, the applicant understood, by communication with the Strata Manager, that Unit 6 was entitled to exclusive use of the four car parking bays immediately adjacent to the site. On examination of this understanding, the documentation provided to the Tribunal in relation to entitlements to the car parking bays adjacent to Unit 6 was unauthenticated and inconclusive.
57 The applicant was also of the opinion that staff parking could be accommodated inside Unit 6 and that angled parking could occur on the driveway area in front of the roller door. Subsequent examination of these arrangements identified some practical difficulties for vehicle manoeuvring and servicing of the Unit 6.
58 The applicant explained her background training and experience with dog care and management. This included assisting in operating dog day care centres in the US, specialised day care operational training and further work in Canada. She is studying for a certified qualification in Companion Animal Services.
59 The applicant described several circumstances of "day care centres for dogs" in the US located in multi-storey buildings that are occupied by a wide range of uses.
60 The applicant stressed that the proposed management arrangements, including the comprehensive dog assessment procedures and intended engagement of committed staff, will ensure operation of a high standard business.
61 Mrs R Donovan, a qualified environmental scientist specialising in acoustics, provided evidence on behalf of the applicant.
62 Mrs Donovan described relevant aspects of the Environmental Protection (Noise) Regulations 1997 (WA) (Regulations) in relation to assigned levels for industrial and commercial premises.
63 Mrs Donovan explained that she had reviewed the noise assessment undertaken by NVMS on behalf of the applicant.
64 NVMS had concluded that the construction of the units is such that approximately 26 - 28dB(A) noise reduction between Unit 6 and Unit 5 is evident, even with the roller doors to Unit 5 open.
(Page 13)
65 According to NVMS, current external ambient noise levels are generally dominated by local traffic noise.
66 Given the construction of the units, the distance to other units and residences, and the existing ambient noise levels around the site, the impact on neighbouring properties of noise due to barking of dogs is expected to be minimal.
67 NVMS had recommended that, to mitigate any possible impact further, noise control measures could be undertaken inside Unit 6. (These are listed as the "internal noise control measures" in the "Proposed development and its context" section of the report).
68 Mrs Donovan said that she had carried out her own assessment of the site and concurred with the conclusions of NVMS.
69 Mrs Donovan explained for the Tribunal a theoretical example where the typically expected sound power of a dog barking in Unit 6 in its present condition would be attenuated to a level in Unit 5 that satisfied the Assigned Level dB for commercial premises under the Regulations. Industrial Assigned Levels would be easily met.
70 Under examination, Mrs Donovan agreed that certain uses allowable in the area are classified as "noise sensitive". These include a "childcare centre", a "medical centre" or a "residence". However, if these uses occurred on vacant land at the rear, then the configuration of Unit 6 would assist in shielding noise transmission in that direction.
71 Mr P Webb, a qualified and experienced town planner, gave evidence on behalf of the applicant.
72 Mr Webb drew attention to the range of uses allowable in the Mixed Use zone, many of which he believed would have significantly greater impact on the amenity of the area than the proposal under consideration.
73 Typical of these uses were:
• Child care premises;
• Family day care;
• Funeral parlour;
• Garden centre;
(Page 14)
- • Health centre;
• Industry - light;
• Industry - service;
• Public amusement;
• Transport depot;
• Vet consulting rooms; and
• Vet hospital.
74 Mr Webb drew attention to Amendment No 52 of TPS 14 which seeks to introduce a new Mixed Business zone which will supersede the Mixed Use zone prevailing in the locality. The Amendment has been adopted for final approval by the respondent, and accordingly is a seriously-entertained modification of TPS 14.
75 The Vision Plan accompanying Amendment No 52 identifies that the area of the Mixed Business zone, in which Unit 6 is located, is to be predominantly used for showroom, factory and warehouse purposes.
76 Addressing the proposed parking arrangements, Mr Webb pointed out that the car parking bays adjacent to the site, although not allocated formally for the use of Unit 6, had been consistently utilised by the owners of Strata Lot 6 and not objected to by the owners of any of the other strata units.
77 Mr Webb pointed out that the respondent's officers had reported to the respondent's Council meeting of 28 August 2007 that the "parking for the overall site is exceeded by 10 parking bays" and "there is no objection to the proposed parking arrangement".
78 Having regard to the management practices proposed to be put in place by the applicant, Mr Webb was of the opinion that the amenity of the immediate locality would not be compromised.
79 Under examination, Mr Webb was asked to outline the distinctions between a "day care centre for dogs" and a "dog kennel" use. It was put that if the use involved overnight stay, then it should fall within the definition of "dog kennel" use. Mr Webb considered that the distinctions included that kennels were characterised by caging of dogs, the dogs were not played with, and that waste was not immediately removed, as envisaged by this proposal.
(Page 15)
Draft conditions
80 The respondent has provided a list of conditions which would be recommended to be imposed in the event that the application for review is upheld and the proposed development allowed.
81 The applicant has taken issue with several of the draft conditions.
82 The applicant argues that condition (b), requiring the hours of operation to be limited to between 7 am and 7 pm, should be extended to allow trading to 9 pm on Thursday nights and on other days when shopping centres may be open for late trading.
83 The applicant objects to condition (d) requiring the staggering of drop off and pick up times, on the grounds that it is unreasonable to expect to control the times of customer arrivals.
84 The applicant also objects to condition (g), requiring preparation and approval of a waste management plan. The applicant contends that proposals for waste management are already clear and that the requirement for a plan will unreasonably and unnecessarily delay occupation of the premises for use of the business.
85 Condition (j), requiring that the applicant should seek approval in respect to a change of building classification, requires clarification as to the condition's purpose.
86 Condition (k), advising that the stamped and dated plans, as amended, shall form part of the planning approval, also requires clarification.
87 Condition (l), requiring limits on the giving of food to dogs on the premises, imposes an onus to inform potential clients, as well as clients, of these limitations. The applicant contends that it is unnecessary and superfluous to refer to "potential clients" in the condition.
Analysis
88 The question confronting the Tribunal is to determine whether the proposed "day care for dogs" use is consistent with the objectives of the Mixed Use zone.
(Page 16)
89 The respondent has argued that the proposed use is an "emission producing use", proposed to be located in a zone where there can otherwise be a reasonable expectation of "noise sensitive" land uses.
90 The control of noise and odour emissions from the "day care for dogs" use is heavily reliant on the application of stringent management practices to control noise and odour. There is no certainty that the management practices will be maintained at a level that will avoid nuisance to neighbouring premises. There is therefore a likelihood that the proposed use will generate unacceptable emissions which would be detrimental to the amenity of the district.
91 Accordingly the proposed "day care for dogs" cannot be relied on as a use that will be compatible with other uses in the area as required by the objectives of the Mixed Use zone.
92 It should therefore be determined as inconsistent with the objectives of the zone and not be permitted.
93 The respondent has also put the case that the arrangements for parking on site are uncertain, inadequate and impractical.
94 Conversely, the applicant has pointed out that the proposed use has similar characteristics with other uses allowable within the Mixed Use zone that would be reliant on management practices to control potential impacts on local amenity.
95 The applicant has provided evidence that the present characteristics of the premises are such that the expected sound levels of barking in the building will be sufficiently attenuated to meet the relevant requirements of the Regulations. The applicant proposes that the premises will be fitted with additional sound attenuation equipment designed to further constrain noise.
96 The applicant has described alternative arrangements for the collection and disposal of animal waste.
97 The applicant has described arrangements for drop off and pick up of dogs and the access and parking facilities available.
98 The Tribunal is persuaded by the substance of the evidence in favour of the proposal.
99 It is reasonable to anticipate that, with the demonstrated sound attenuating characteristics of the building coupled with the installation of extra sound attenuating measures, noise emanating from within Unit 6 can be satisfactorily controlled.
(Page 17)
100 It is reasonable to expect that one of the waste collection and disposal methods proposed can be satisfactorily conducted. Indeed, it could be expected that staff in the premises would have a self-interest in conducting waste disposal promptly and effectively in order to preserve the amenity of the workplace.
101 Bearing in mind the report of the respondent's staff as to the overall adequacy of car parking provided for the complex, the Tribunal accepts that the four bays adjacent to Unit 6 are most likely to be available for use of customers of the "day care for dogs" business.
102 In the event of a limit of immediate access to Unit 6, the Tribunal is reluctant to conclude that a customer resorting to a slightly remoter car parking bay within the complex, entailing a short walk of a dog on a lead, is any more problematic than any other circumstances where a family dog is taken by car to a destination involving a public car park.
103 The concerns in relation to possible conflict in the car park with other persons attending businesses in the complex are not necessarily without foundation, but are unlikely to be any more of a problem than in any other public place where dogs and people congregate. It would be reasonable to expect that any dog being transferred to Unit 6 from a car would be on a lead and in the control of the owner.
104 Whether the proposed "day care for dogs" use should be allowed or disallowed based on its similarity to other uses listed in the Scheme, the Tribunal remains cautious as to the weight that should be given to such arguments. There will always be degrees of similarity in aspect between uses. Inevitably, there will also be key differences. In this case, the Tribunal has already found that the "day care for dogs" use is unique in its characteristics, and has accepted its status as a "use not listed". It should therefore be treated quite separately on its merits.
105 As to whether the use should be disallowed based on the respondent's argument that the use is potentially an emission producing use, in an area with an expectation of the presence of noise sensitive land uses, the Tribunal would point to the anticipation of a number of noise and odour producing uses allowable in the zone, including "child care premises", "fast food outlet", "lunch bar" and "restaurant". Each of these uses would be dependent on measures to render noise and/or odour emissions acceptable to the amenity of their location. The Tribunal would view the
(Page 18)
- application for the "day care for dogs" in a similar light.
106 The Tribunal is satisfied in this regard that the proposed "day care for dogs" use proposed for the site is adequately serviced in terms of access and car parking, and can reasonably be expected to be conducted without generating nuisance detrimental to the amenity of the locality.
Consideration of the draft conditions of approval
107 The contentious draft conditions are considered in order.
108 Condition (b) stipulating the hours of operation being limited to between 7 am and 7 pm seems to the Tribunal to be unnecessarily constrained. There appears to be no particular sensitivity in the area to later hours of operation, given that other businesses would have closed and that there are no residences in the vicinity. Accordingly, the Tribunal agrees to a modification of the condition to require that:
• Hours of operation are limited to between 7 am and 9 pm.
109 Condition (d) requiring the staggering of drop off and pick up times is considered to be an unreasonable obligation to place upon the applicant. The Tribunal considers that the scale of the business is unlikely to generate congestion, and in any case, there appears to be little practical likelihood that such a discipline could be practically imposed on the business customers. The condition should be deleted.
110 Condition (g) requiring the preparation and approval of a waste management plan is considered by the Tribunal to be appropriate. The waste management arrangements associated with the proposed use are fundamental to its acceptable function, and should be clearly and unequivocally documented as part of the approval process before occupancy. In this regard, the Tribunal is mindful of the submission of the applicant that the previously contemplated arrangements for toilet flushing of waste may not now be allowable. The appropriate wording of the condition, as amended by the respondent, follows:
• Prior to occupation or use of the development, a waste management plan to address the removal of dog waste from the site and specific measures to control odour and cleanliness on site shall be prepared and submitted to the City for approval. Thereafter, the use must be carried on in accordance with the approved plan.
(Page 19)
111 The Tribunal would expect that both the applicant and the respondent should be diligent, co-operative and expeditious in the preparation and approval of the waste management plan.
112 Condition (j) requiring the applicant to gain approval of a change in building classification, is not considered by the Tribunal to constitute a necessary development condition. The requirement would be more appropriately conveyed to the applicant as a separate advisory note.
113 Condition (k) advising that the stamped and dated plans, as amended, form part of the planning approval appears to the Tribunal to be better reflected in a new preliminary condition requiring that:
• The use must be carried out in accordance with the following conditions.
Condition (l) should be varied to delete the reference to the phrase "and potential clients" as it is accepted that the requirement is superfluous.
Conclusion
114 Based on the preceding analysis, the Tribunal concludes that the application for review of the respondent's decision to refuse the proposed "day care for dogs" use at the site should be upheld. Accordingly, the decision of the respondent to refuse the application should be set aside and the proposed use should be conditionally approved.
Order
1. The application for review is allowed.
2. The decision of the respondent made on 27 November 2007 to refuse approval for a "day care for dogs" use at Unit 6 (Strata Lot 6), No 102 Robinson Avenue, Belmont, is set aside and a decision is substituted that approval is granted subject to the following conditions:
(i) The use must be carried out in accordance with the following conditions.
(ii) Prior to the occupation or use of the development, a noise control plan including the following measures must be lodged with the City of Belmont for approval:
- - construction of solid walled open pens for dogs;
- rubberised flooring;
- sound absorbing panels on inside of external walls and hanging from the ceiling;
- pens to be sited away from roller doors; and
- minimise time external doors are open; and
- all dogs to be supervised at all times.
Thereafter, the use must be carried out in accordance with the approved plan.
- (iii) Hours of operation are limited to between 7 am and 9 pm.
(iv) A maximum of 30 dogs per day shall be cared for at any one time.
(v) No loading or unloading of vehicles is to occur that interferes with the parking of vehicles in the car park by visitors and employees. All car parking bays in the car park area to be made available at all times for the parking of vehicles by visitors and employees. For the removal of doubt, this condition does not apply to vehicles which are delivering dogs to, or collecting dogs from, the site.
(vi) Day care staff must use allocated parking bays to ensure a drop off area adjacent to the premises is available for clients. All bays to be clearly marked.
(vii) Prior to occupation or use of the development, a waste management plan to address the removal of dog waste from the site and specific measures to control odour and cleanliness on site shall be prepared and submitted to the City of Belmont for approval. Thereafter,
- the use must be carried on in accordance with the approved plan.
- (viii) All storage to occur within the building. Clause 10.5.2(a) of the City of Belmont Town Planning Scheme No 14 prohibits external storage in the "Mixed Use" zone.
(ix) The overnight boarding of dogs is not permitted on the premises.
(x) No food may be given to dogs kept on the premises except:
- as treats as part of play or training; or
- where required, as an adjunct to the administration of a dog's requirements for medication.
All clients must be informed about this limitation on the services provided.
(xi) Prior to any dog being accepted for care at the premises, it must successfully undertake a "personality/character" test for the purpose of determining whether the animal is compatible with the day care facility. Dogs which are aggressive or anti-social shall not be accepted for care.
I certify that this and the preceding [114] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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(Page 22)
- MR J ADDERLEY, SENIOR SESSIONAL MEMBER
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