Vary Enterprises Pty Ltd and City Of Belmont

The parties involved in this case are Vary Enterprises Pty Ltd, the applicant, and the City of Belmont, the respondent. The dispute arose from the applicant's proposed development of a day care centre for dogs in a unit on Robinson Avenue, Belmont. The City of Belmont objected to the development application on the basis that the proposed use of the property fell within the "Dog Kennels" use class, which was prohibited under the City of Belmont Town Planning Scheme No 14. The applicant contested this assertion, arguing that the proposed use did not fall within the "Dog Kennels" use class and was instead a use falling within the category "Use Not Listed" under that Scheme. The case was heard in the Western Australian Supreme Court.

The legal issues before the court were whether the proposed use of the property for a day care centre for dogs was classified as "Dog Kennels" under the City of Belmont Town Planning Scheme No 14, and whether the proposed use involved the boarding or breeding of dogs. The court was required to interpret the relevant provisions of the planning scheme and determine whether the proposed use fell within the prohibited "Dog Kennels" use class or whether it constituted a use not listed under the scheme. The court also needed to consider the definition of "boarding of dogs" as it appeared in the planning scheme.

The court found that the proposed use of the property for a day care centre for dogs did not fall within the "Dog Kennels" use class under the City of Belmont Town Planning Scheme No 14. The court noted that the planning scheme defined "Dog Kennels" as a place where dogs are boarded or bred, and found that the proposed day care centre did not involve the boarding or breeding of dogs as those terms were defined in the scheme. The court concluded that the proposed use was a use falling within the category "Use Not Listed" under that Scheme. The court also found that the proposed use did not involve the boarding of dogs as that term was defined in the planning scheme.

The court made an order that the preliminary issue was 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 proceedings were adjourned to a further directions hearing at 9 am on Friday, 4 April 2008.