Animal Boarding Facility Appeal Dismissed by Land and Environment Court

The Land and Environment Court dismissed an appeal against the refusal of a development application for an animal boarding facility. The court considered the impact of noise and effluent disposal on neighbouring residents and found insufficient detail to grant development consent.

Land and [ADDRESS] of New South Wales

CITATION : [NAME] v Hornsby Shire Council [2004] NSWLEC 94 APPLICANT [NAME] PARTIES : RESPONDENT Hornsby Shire Council FILE NUMBER(S) : 11500 of 2003 CORAM: [NAME] C KEY ISSUES: Development Application :- proposed boarding [NAME] for dogs and cats - size of proposal - amenity of neighbours - noise - effluent disposal - traffic LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s 97 CASES CITED: DATES OF HEARING: 12/03/2004 EX TEMPORE 03/12/2004

JUDGMENT DATE :

APPLICANT Mr [NAME], solicitor, SOLICITORS LEGAL REPRESENTATIVES: [NAME]

RESPONDENT [NAME], principal solicitor of the council

JUDGMENT:

IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

11500 of 2003

[NAME] C

12 March 2004

[NAME] Applicant v Hornsby Shire Council Respondent Judgment

1. This is an appeal against the council's refusal of a proposed development by [NAME] at [ADDRESS], Arcadia. It is proposed to have pens for 32 cats and [NAME] for 34 dogs. To house the animals, four separate buildings are proposed on the lower level of the subject land at [ADDRESS]. The subject land has an area of 2.2 ha. The owners' large dwelling house and garden areas are on the upper part of the subject land. The owners are [NAME]. Proceeding in a westerly direction from their home, the land drops to an area that contains an easement for transmission lines 60.96 m wide. Further to the west of the subject land (immediately outside the transmission line area), it is proposed to locate the four buildings for the animals. A service and access road is proposed coming down from the house.

2. Details of the proposal can be seen in the amended plans exhibit A, namely DA01C, DA02B and DA03 to DA11. An amended landscape plan, LPO2B (exhibit B), was submitted at the hearing in support of the application. Drainage and effluent plans were also tendered as exhibit C. These plans partly relate to what would be required for the proposed development.

3. The application was advertised and notified to adjoining neighbours and there were a large number of written objections to the proposal. The council officers prepared a detailed report to the council, which appears in the bundle of council documents exhibit 1 at pp 32 to 114 including annexures. This is a detailed report that recommended refusal of the application. As I understand the history of the matter, there was a request by the owners to provide more detailed information and the council did not at that time resolve to refuse the application. The further information provided on behalf of the owners included amended architectural plans, a landscape plan similar to the one that I referred to earlier and a further or more detailed noise consultant's report.

4. As regards the landscape plan (ex B), I find on the evidence that the landscaping would, once established, tend to screen the proposal although that may take some time as regards a view from the entrance to [NAME]'s property, which is located further to the west of the subject site on the opposite side of Colah Creek. There would certainly be some screening of the proposal from the neighbours whose property looks down on to the site of the proposed [NAME], namely that of [NAME] at [ADDRESS]. I think though that the [NAME] or part of them would still be visible because of the access road that would have to be provided going down to the [NAME].

5. It is important to have regard to the planning provisions. The subject land is affected by two zones under the Hornsby Local Environmental Plan 1994. The first is the Rural BR (Small Holdings—Rural Landscapes) Zone. One of the objectives of this zone is to provide for a range of compatible land uses including agriculture which maintain the rural environment of the area and support the urban population. Another objective of this zone is to ensure that development is carried out in a manner that improves the environmental qualities and is within the servicing capacity of the area. In this zone, animal boarding or training establishments are permissible with consent. It is a question of fact in each case whether a permissible use having regard to its scale or size or other characteristics will be consistent with the objectives of the zone.

6. The other zone that affects the subject land is the Environmental Protection B (River Catchment) Zone and is immediately to the west of the proposed buildings, but the proposed development is not permissible within this zone. However, in accordance with cl 11 of the LEP, certain developments may still occur which are consistent with the aims and objectives of the LEP. A wall of the proposed development encroaches to a minor extent into the Environmental Protection Zone, and I would not refuse the application on that ground.

7. The subject land is also affected by the Rural Lands Development Control Plan. As I understand the application of this DCP, regard should have been had not only to the prescriptive measures but also to the performance criteria. In relation to animal boarding, it is stated among other things that the keeping of animals should not impact upon surrounding residents by way of noise, odour or runoff. A prescriptive measure is that dog [NAME] should be located a minimum of 100 m from more intensive human activities such as dwellings. It is further provided that effluent should be disposed of in a manner that will not impact upon adjoining properties and natural ecosystems or attract flies. Further provisions relating to effluent disposal are set out at p 33 of the DCP.

8. In respect of acoustics, the DCP states that where practicable, sources of noise should be sited away from adjoining properties and where necessary be screened by acoustical treatments. Perhaps of more importance is the prescriptive measure that requires a minimising of the effect of noise by requiring development to comply with council's Policy and Guidelines for Noise and Vibration Generating Developments 2000. The last-mentioned document contains the following in cl 7.2.2: Barking dogs 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. A dog shall be deemed to cause offensive noise where barking can be heard within a habitable room in any affected residence between the hours of 10 pm and 7 am. The L Aeq noise level due to dog barking shall not exceed the background L A90 sound level by more than 5 dBA when measured at any time in a habitable room of an affected residence. Dog barking can be due to a variety of factors with perhaps the two most common being boredom and visual stimulation. Owners of barking dogs should be encouraged to exercise the animal regularly for a sufficient period and to reduce the visual stimulation of the dogs, particularly at night.

9. I quoted that statement in full, because the [NAME] who gave evidence ([NAME] for the applicant and [NAME] for the council) relied upon it and agreed that those criteria would be appropriate. The joint statement of these [NAME] is exhibit 14.

10. In relation to noise, I also have taken into account the written evidence of the local residents. The locations of houses of those residents who could possibly be affected have been indicated by Mr [NAME] in his September report at p 17. It seems to me that those residents who live at 22 and [ADDRESS] and at 1395 and [ADDRESS] would be possibly more affected. As I mentioned, the owners of the subject land submitted further evidence to the council and the council officers, taking into account the noise reports of Mr [NAME], recommended the granting of consent. However, the councillors did not accept that recommendation and resolved to refuse the application for the reasons set out in a notice of determination dated 3 December 2003. One of the reasons for refusal was that the acoustic report submitted on behalf of the applicant does not take into account the local topography. As I mentioned earlier, the subject land is sloping, and residents have referred to the noise effects created by the rising land on each side of Colah Creek. They have also referred to the very quiet ambient conditions and to weather conditions where prevailing winds may affect noise that might be experienced from the animals proposed to be kept on the subject land.

11. Another important matter raised by the council for the purpose of this hearing related to effluent disposal. Again, there were [NAME] retained by both parties, and a joint report was prepared by [NAME] for the council and by [NAME] for the applicants.

12. In relation both to the question of noise generation and to stormwater and effluent disposal, I am not satisfied on the evidence from the applicant that there is sufficient detail to grant development consent.

13. I take into account the evidence of [NAME] who, with her family members, is engaged in the running of the [COMPANY]. In particular, I refer to her letter to the council dated 2 June 2003 which is part of exhibit 1 and to a more recent letter to which she spoke in evidence today which has also been tendered as part of that exhibit and which bears today's date.

14. It seems to me that the design of the proposed [NAME], of the exercise yard and of the outdoor areas connected with each of the [NAME] is such that there could be continual or regular noise created by the dogs, because the exercise yard is not being sufficiently screened from the pens or from the areas associated with the pens. The internal pens also are apparently not screened from each other, although they are divided. The owners of the subject land admit that they have not had experience in the running of [NAME]. What is proposed as a fairly large operation to start with or could be if consent is granted, but the overall picture that has been presented to me by the evidence is that what is proposed for this particular site with its constraints would be an overdevelopment.

15. With a smaller enterprise than the proposed development, effluent disposal could more readily be accommodated on the subject site. Although the solids could be treated, details of the method of treatment or disposal would have to be provided. The [NAME] differed as to whether there is sufficient area for the disposal of the treated wastewater. The area would need to be at least 800 sq m and may need to be the vicinity of 2000 sq m. The area available nominated by the owners is about 1500 sq m. Within that area, the effluent from the existing house is disposed of in part, so that there would be some reduction in that 1500 sq m. It is also located within close proximity to the existing house.

16. I am of the opinion that on the present design, the night-time amenity of residents (particularly at No. 26, and possibly at No. 22 and at certain residences across the creek on the other side of the valley) could be affected. As indicated by the expert acoustic consultants, it could be that a building could be designed so that there is complete containment of the noise or at least containment to the extent that it is not audible after 10 pm within the habitable rooms of any residence. However, I see a problem in the location of the [NAME], which are in fact located further from the owners' residence than from the residence at [ADDRESS]. It is a question of supervision of what might occur at the [NAME]. It is also relevant to take into account the carrying out of many of the activities during the day referred to by [NAME]. During the day, it seems to me that if there are events that cause a number of dogs to engage in barking over a period of time, the residents at the studio of [NAME] at [ADDRESS] would also be subject to noise. [NAME] is a composer of music and her studio is about 113 m from the proposed dog [NAME]. (It is closer to the proposed cat [NAME] but they would not cause any noise problem at that distance.)

17. It seems to me that a development of the size now proposed (in the context of the topography of the subject site and surrounding properties, with residences within 120 m of the [NAME] and other residences within 200 m) would ordinarily have to be located elsewhere. Matters that are not specified in the present application would have to be particularised to show that the development could be carried out in an environmentally acceptable manner. I do not consider that there is sufficiently certain evidence provided to the Court to enable the granting of a consent subject to the conditions.

18. In respect of noise generation, I have reservations whether a development of the size proposed would be appropriate, taking into account the requirement to prevent audible noise after 10 pm, and to limit barking from dogs during the day to comply with the council's criteria in its noise policy referred to in the DCP.

19. In relation to traffic, the entrance to the subject land is close to the access handles of three other premises and there is a sharp turn needed from the subject site for cars wishing to proceed in a westerly direction. The council's traffic engineer has looked at the subject site and is of the opinion that the proposed development should not be refused on traffic grounds. If the development had been otherwise acceptable (for example, if there was a larger setback of the proposed [NAME] from other residences and a clearly adequate area for disposal of effluent), then I would not have refused this application because of the traffic situation at the entrance to the subject land or because of traffic on [ADDRESS].

20. I note that any proposal relating to the subject land would have some adverse impact on the amenity of the house and cottage at No.

26. The [NAME] have elderly parents in the cottage, and the proposed passing bay in the access handle of the subject land is about 15 m from the corner of that cottage. The cottage is about 8 m or 9 m from the actual boundary of the subject land. So there would be some adverse impact from the additional traffic generated by an animal boarding development for 66 animals. During peak boarding times, such as school holidays and in particular at Easter and Christmas time, there would be a considerable degree of traffic passing along that access handle. A smaller development would generate less traffic.

21. To reiterate, the proposed development was not supported by sufficient detail concerning the actual operation of a boarding establishment of the size proposed, and again I refer to the two letters of objection of [NAME].

22. For those reasons, the orders of the Court are: 1. The appeal is dismissed. 2. The development application plans are to be retained. ___________ [NAME] Commissioner of the Court

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.