Vary Enterprises Pty Ltd and City Of Belmont - [2008] WASAT 65

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 65

MEMBER: MR D R PARRY (SENIOR MEMBER)

HEARD: DETERMINED ON THE DOCUMENTS

DELIVERED : 20 MARCH 2008

FILE NO/S: DR 451 of 2007

BETWEEN: VARY ENTERPRISES PTY LTD
Applicant
AND
CITY OF BELMONT
Respondent

Catchwords:

Town planning - Preliminary issue - Development application - Day care centre for dogs - Whether day care centre for dogs is prohibited - Whether day care centre for dogs is classified as "Dog Kennels" as defined in local planning scheme - Whether day care centre for dogs involves boarding or breeding of dogs - Words and phrases: "boarding of dogs"

Legislation:

City of Belmont Town Planning Scheme No 14
Dog Act 1976 (WA), s 26
Planning and Development Act 2005 (WA), s 238(4)

Result:

Proposed day care centre for dogs does not fall within the "Dog Kennels" use class, but rather is a "Use Not Listed" under the City of Belmont Town Planning Scheme No 14

Category: B

Representation:

Counsel:

Applicant: Mr MJ Hardy
Respondent: Mr CA Slarke

Solicitors:

Applicant: Hardy Bowen
Respondent: McLeods

Case(s) referred to in decision(s):

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

A preliminary issue was raised in planning review proceedings as to whether a proposed day care centre for dogs could not be approved, because it falls within the definition of "Dog Kennels" under the local planning scheme. This turns on whether the proposed development involves the "boarding" of dogs.
The Tribunal determined that the proposed development does not involve the boarding of dogs. Significantly, as the dog day care centre would not operate overnight, it would not involve the provision of lodging for dogs or dogs living at the site. Furthermore, while a possible meaning of boarding contemplates furnishing of food without accommodation, the limited and incidental provision of food by way of "treats" as part of play or training, or as an adjunct to the administration of a dog's requirement for medication, does not satisfy this possible meaning.
The Tribunal determined that the proposed development is capable of approval.

Introduction

This case involves a proposed development that has clearly gone to the dogs. What is less certain is whether the dogs would "board" there.
Vary Enterprises Pty Ltd (applicant) sought development approval from the City of Belmont (City or Council) under the City of Belmont Town Planning Scheme No 14 (TPS 14 or Scheme) for a day care centre for dogs at Unit 6, 102 Robinson Avenue, Belmont (site). The site is zoned "Mixed Use" under TPS 14. "Dog Kennels" is a prohibited use in the zone.
The Council decided to refuse the development application for the following reason:
"A Day Care for Dogs can reasonably be determined as falling within the interpretation of 'Dog Kennels' under the City of Belmont Town Planning No 14, which is a use that is not permitted in all zones in the Scheme and therefore is refused."
The term "Dog Kennels" is defined by TPS 14 to mean:
"Any land or buildings used for the boarding or breeding of dogs where such premises are registered or required to be registered by the Council; and may include the sale of dogs where such use is incidental to the predominant use."
The applicant subsequently commenced these proceedings for review of the Council's decision.
The Council raised the following preliminary issue for determination by the Tribunal:
Whether the proposed development is classified for the purposes of TPS 14 as a use falling within the "Dog Kennels" use class or as a use falling within the category "Use Not Listed".
The President formed the opinion that the application is likely to raise complex or significant planning issues and listed the preliminary issue for determination by me on the documents: see Planning and Development Act 2005 (WA) s 238(4).

Agreed features of proposed development

The parties agree, for the purposes of the preliminary issue, that the proposed development has 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;
•"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;
•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.

Is the proposed day care centre for dogs prohibited?

The Council contends that the proposed development is properly classified as "Dog Kennels" as defined in TPS 14. The Council does not contend that the proposed development can be reasonably determined as falling within the interpretation of any other use class listed in the Scheme. It is common ground that if the proposed development is not classified as "Dog Kennels" under TPS 14, then it is a "Use Not Listed" under the Scheme. A "Use Not Listed" under TPS 14 is a use that is capable of approval in the exercise of planning discretion under the Scheme.
As noted earlier, the definition of "Dog Kennels" under TPS 14 refers to "[a]ny land or buildings used for the boarding or breeding of dogs where such premises are registered or required to be registered by the Council … ".
The Council does not argue that the proposed development involves the breeding of dogs. Indeed, the breeding of dogs would be impossible given that all dogs accepted for day care must be de‑sexed.
Rather, the Council argues that the proposed development involves the boarding of dogs. The Council submits that the meaning of "boarding" does not convey the requirement that dogs be kept on the premises overnight. Rather, boarding usually involves the provision of food, which is an aspect of the applicant's proposal, albeit to a limited extent. The Council also notes that the effect of s 26 of the Dog Act 1976 (WA) and of its Dogs Local Law (Local Law) is that it is unlawful to "keep" more than six dogs over the age of three months on any premises unless those premises are licensed as an approved kennel establishment under the Local Law. It submits that, while the dogs are in the care of the applicant, they are "kept" at the site and that it would be "anomalous" if the proposed use were considered to be a kennels establishment for the purposes of the Local Law, but not "Dog Kennels" for the purposes of the Scheme. The Council submits that it is desirable for the same proposal to be treated in a consistent manner in both laws for which it is the responsible authority.
In contrast, the applicant contends that the proposed development does not fall within the definition of "Dog Kennels" under TPS 14. In particular, relying on dictionary definitions of the term "boarding", the applicant submits that the concept of "boarding" is different to the concept of daily care inherent in the proposed development. The applicant submits that the proposed use constitutes a "Use Not Listed" under the Scheme and is, therefore, capable of approval.
The word "boarding" is not defined in the Scheme. It is an ordinary English word to be given its natural meaning. The following definitions of the verb "board" in The Macquarie Dictionary (Macquarie Sydney 4th Ed 2005) at page 159 are potentially apposite:
"to furnish with food, or with food and lodging, especially for pay"
"to board out: To board the dog for the holidays"
"to live in a room, with or without meals provided, at an agreed price."
The noun "lodging" is defined at page 840 as follows:
"1. accommodation in a house, especially in rooms for hire; to furnish board and lodging. 2. a place of abode, especially a temporary one. 3. (plural) a room or rooms hired for residence in another's house."
The proposed dog day care centre use does not involve the boarding of dogs. As the use involves the keeping of dogs at the site from 7 am to 7 pm, ultimately expanding to 9 pm, and not overnight, dogs are not provided with lodging, that is, accommodation, a place of abode or residence, and do not live at the site. While one possible meaning of "board" contemplates the furnishing of food for pay without lodging, the proposed limited and incidental feeding of dogs by way of "treats" as part of play or training, or as an adjunct to the administration of a dog's requirement for medication, does not reasonably satisfy this possible meaning and cannot, therefore, reasonably be determined as falling within an interpretation of "Dog Kennels" under the Scheme. The site would not be used for "boarding" in the sense of furnishing food, but rather for the caring of dogs during the day with incidental provision of "treats" in the form of food as part of play or training, or food as part of the administration of required medication.
The Council notes that the plans of the proposed development provide for a food storage area, and that, initially, the applicant indicated that dogs would be fed when requested by a dog owner and where the owner provides food for the animal. However, as the preliminary issue has proceeded on the basis that the proposed development does not include such provision of food to dogs, the Tribunal does not express a view as to whether it would satisfy the definition of "Dog Kennels" under the Scheme. To express a view, the Tribunal would have to consider whether the provision of food, supplied by the dog owner, by day care centre staff, during the daytime hours of operation of the centre, involves the furnishing of the dog with food in the sense contemplated by the word "boarding".
In light of the basis on which the preliminary issue was presented, if ultimately development approval is granted for the proposed use, it should be conditioned to limit the feeding of dogs at the site to "treats" as part of play or training or where required as an adjunct to the administration of a dog's requirement for medication, and to require clients or potential clients to be informed that feeding of dogs at the site is limited in this way.
Finally, the fact that the proposed development may require a licence to operate as an approved kennel establishment under the Local Law does not have the effect that it is deemed to reasonably fall within the interpretation of "Dog Kennels" under the Scheme. Different definitions may well have different regulatory consequences.
It follows that the proposed dog day care centre does not reasonably fall within the definition of "Dog Kennels" under the Scheme. As it is common ground that the proposed development is not specifically mentioned in the Zoning Table and cannot reasonably be determined as falling within the interpretation of any other use class in the Zoning Table, it is a "Use Not Listed" for the purposes of the Scheme.

Conclusion

The Council's case is summed up in its submission that "[i]n truth, a dog day care centre is merely a modern approach to an old business: the keeping of others' dogs". However, the "keeping of others' dogs" is not a land use referred to in the Scheme. The definition of "Dog Kennels", which refers to "the boarding or breeding of dogs", is not necessarily satisfied by merely "the keeping of others' dogs".
Significantly, the proposed development does not involve the provision of lodging, that is, accommodation, a place of abode or residence for dogs, or dogs living at the site, as it does not include overnight use. Furthermore, while a possible meaning of "board" contemplates furnishing of food without accommodation, the limited and incidental provision of food in the proposed development by way of "treats" as part of play or training, or as an adjunct to the administration of a dog's requirement for medication, does not reasonably satisfy this possible meaning.
The proposed development does not, therefore, reasonably fall within the interpretation of "Dog Kennels" as defined in the Scheme. The proposed development is a genuine "Use Not Listed" under the Scheme, that is, it is a use not specifically mentioned and a use not reasonably contemplated by any of the use classes listed in the Scheme.
It is unnecessary, and the Tribunal does not, express a view in this matter as to whether the provision of food when requested by a dog owner and where the owner provides the food would fall within the definition of "Dog Kennels".
In light of the way in which the preliminary issue has proceeded, if ultimately the proposed development is granted approval under TPS 14, it should be conditioned to limit the provision of food to "treats" as part of play or training, or where required as an adjunct to the administration of a dog's requirement for medication, and to require clients or potential clients to be informed about this limitation on the services provided by the dog day care centre.

Orders

I make the following orders:
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."
2.The proceedings are adjourned to a further directions hearing at 9 am on Friday, 4 April 2008.
I certify that this and the preceding [29] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR D R PARRY, SENIOR MEMBER