Land and Environment Court of New South Wales CITATION : Shears v Parramatta City Council [2007] NSWLEC 677 APPLICANT Stephen Shears PARTIES : RESPONDENT Parramatta City Council FILE NUMBER(S) : 10562 of 2007 CORAM: Tuor C Development Application :- construction of pigeon lofts for breeding and racing KEY ISSUES: permissibility of use impact on residential amenity Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Local Government Act 1993 Parramatta Local Environmental Plan 2001 Stockland Development Pty Ltd v Manly Council (2004) 136 LGERA 254; Sweeny Pastoral Company v Snowy River Shire Council [1993] NSWLEC 198 ; Garry Parsons & Anor v Hornsby Shire Council [1995] NSWLEC 69 ; CASES CITED: Hawkesbury Shire Council v Mitchell and Anor [1988] NSWLEC 8; Tweed Shire Council v Litonia Pty Ltd [1993] NSWLEC144; Whittlelesea CC v RG Simmons [2000] VCAT 960 ; Foodbarn Ltd v Solicitor General (1975) 32 LGERA 157; Maryland Development Co Pty Ltd v Penrith City Council & Anor [2001] NSWLEC 135 DATES OF HEARING: 14 September 2007 DATE OF JUDGMENT: 18 October 2007 APPLICANT Mr G McKee, solicitor LEGAL REPRESENTATIVES: of McKees Solicitors RESPONDENT Mr C Gough, solicitor of Storey & Gough Solicitors JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Tuor C 18 October 2007 10562 of 2007 Shears v Parramatta City Council JUDGMENT 1 COMMISSIONER: This is an appeal against the refusal by Parramatta City Council (the council) of a development application (DA 759/2006) under the Environmental Planning and Assessment Act 1979 (EPA Act) for the construction of a stock and race loft for the housing and training of racing pigeons at 9 Todd Circle, Old Toongabbie (the site). The site and its context 2 The site, being lot 40 DP225066, is irregular in shape with a rear width of approximately 9.2m and a frontage to Todd Circle of approximately 9.14m with a maximum depth of about 48.6m and a site area of 790 sqm. 3 The site is located at the end of a cul-de-sac and adjoins seven residential properties. It is developed with a single storey house, garage and storage shed and has a number of trees. 4 The area generally consists of single storey dwelling houses in gardens. The history of the proposal 5 The development application was lodged on 28 August 2006. It was notified and council received six submissions. A further four submissions were received following a site meeting. The council report recommended approval of the application subject to conditions. Council refused the application on 10 April 2007. The Proposal 6 The proposal is to construct two pigeon lofts in the south east rear corner of the site. The lofts have a combined area of 78sqm. One loft is to be used for breeding stock (up to about 48 pigeons). The other loft is to accommodate the racing pigeons which will vary in number depending upon the timing of the racing cycle but would be a maximum of about 120 pigeons. The applicant is seeking approval for up to 200 pigeons. An average of 63 pigeons will be let out to fly at least once per day. The flight path is to north over the existing garage and necessitates the removal of the Crepe Myrtle and Magnolia trees. The construction of the lofts requires the removal of a Chinese Elm tree. Planning Framework 7 The site is zoned 2A Residential under Parramatta Local Environmental Plan 2001 (LEP 2001). The parties did not agree whether the proposal was permissible within the zone. 8 Clause 16 of LEP 2001 provides: 16 What development is allowed or prohibited by zoning? (1) For land within each zone, the Table to this clause identifies the development that: (a) may be carried out without development consent, and (b) may be carried out only with development consent, and (c) is prohibited. (2) The Table to this clause also states the zone objectives for each zone. (3) Consent must not be granted to the carrying out of development on land to which this plan applies, unless the consent authority is of the opinion that the carrying out of the development is consistent with the objectives of the zone within which the development is proposed to be carried out. 9 The zoning table for the 2A Residential Zone provides: 1 Zone objectives (a) to enhance the amenity and characteristics of the established residential area, and (b) to encourage redevelopment of low density housing forms, including dual occupancy development, where such redevelopment does not compromise the amenity of the surrounding residential areas, or the natural and cultural heritage of the area, and (c) to ensure that building form, including that of alterations and additions, is in character with the surrounding built environment, and (d) to provide opportunities for people to carry out a reasonable range of activities from their homes where such activities will not adversely affect the amenity of the neighbourhood, and (e) to allow for a range of community facilities to be provided to serve the needs of residents, workers and visitors in residential neighbourhoods. 2 Description on zoning map Coloured pink, edged red and lettered "2 (a)". 3 Development that does not require consent Exempt development 4 Development allowed only with consent Development for the purpose of: bed and breakfast establishments boarding houses car parking spaces centre based child care services community facilities drainage (other than minor drainage works) dual occupancies dwelling houses educational establishments granny flats home based child care services home businesses hospitals housing for older people or people with a disability local shops medical consulting rooms 9 places of public worship or table recycling facilities public buildings public utility installations (other than gas holders and generating works) public transport facilities recreation areas recreation facilities roads telecommunications facilities demolition subdivision 5 Prohibited development Any development not included in Item 3 or 4. 10 The following terms are defined in the Dictionary to LEP 2001 as: dwelling means a room or a suite of rooms occupied or used, or so constructed or adapted as to be capable of being occupied or used, as a separate domicile. dwelling house means a building containing one, but not more than one, dwelling. animal establishment means a building or place used for the breeding, boarding, training or keeping of, or caring for, animals whether or not for a commercial purpose, but does not include a veterinary establishment or a building or place used (in conjunction with a dwelling) for the keeping of pets. 11 Parramatta Development Control Plan 2005 (DCP 2005) is also relevant. It includes a schedule of exempt development which includes: Outbuildings, garden sheds, green houses, bird aviaries · Maximum area of 10m2 or 10% of the rear courtyard area/garden, whichever is less · The maximum cumulative area of all awnings, bird aviaries, carports, concreting, canopies, cabanas, decks, garden sheds, gazebos, greenhouses, patios, paving, pergolas on the site shall not exceed 10% of the total site area · Maximum height 2m above natural ground level · Non reflective finishes to be used · Located to the rear of the building alignment and not closer than 1m from an adjoining property boundary · Aviaries a minimum of 10m from any dwelling · Not involving the keeping of poultry · Must not reduce deep soil below 30% of the site area 12 The proposal does not comply with a number of these criteria and is therefore not exempt development, which would not require consent. 13 Parramatta Local Orders Policy (18) 2003 (the Policy) refers to the keeping of pigeons. The parties agreed that the Policy had been automatically revoked pursuant to s 165 of the Local Government Act 1993 (LG Act) as it had not been readopted within 12 months of the last council election. The parties disagreed on whether weight should be given to the Policy in the assessment of the application, particularly in determining the permissibility of the use. 14 Mr McKee, for the applicant, submits that despite its "technical" revocation, the Policy should be given weight because it is "an expression of council's intention, following public exhibition and consideration of submissions, of what is reasonable in terms of keeping pigeons in a residential area". Further, Mr McKee submits that the policy meets the principles expressed by McClellan CJ in Stockland Development Pty Ltd v Manly Council (2004) 136 LGERA 254 as to the weight to be given to a council policy which is not a development control plan. 15 Mr Gough, for the council, submits that the policy should be given no weight as its purpose was to provide criteria for consideration in issuing an Order under s 124 of the LG Act. It was not a planning policy and would be of no relevance to the determination of a development application, even if it remained in force. 16 I accept Mr Gough's submission. In Stockland McClellan at para 91 states: To my mind, the matters which are relevant when determining the weight to be given to a planning policy adopted by a council are as follows: the extent, if any, of research and public consultation undertaken when creating the policy; the time during which the policy has been in force and the extent of any review of its effectiveness; the extent to which the policy has been departed from in prior decisions; the compatibility of the policy with the objectives and provisions of relevant environmental planning instruments and development control plans; the compatibility of the policy with other policies adopted by a council or by any other relevant government agency; whether the policy contains any significant flaws when assessed against conventional planning outcomes accepted as appropriate for the site or area affected by it. 17 His Honour refers to a planning policy that has been adopted by a council. The Policy is not a planning policy and has not been adopted by the current council. While this may be an oversight it cannot be concluded that the Policy expresses the views of the community through its elected representatives. Even as an adopted policy, it applies to the whole Local Government Area, not just residential areas, and provides criteria which if met would not require the removal pigeon lofts. However, it does not override the question of whether a pigeon loft would be permissible, but rather, if permissible, what criteria it should meet. The evidence 18 The Court heard evidence on site from a number of residents and from the applicant who explained the proposed use and details of pigeon breeding and racing. The main concern of the residents can be summarised as the proposed number of pigeons would have an unacceptable impact on the amenity of their properties. They were particularly concerned about the proximity of the lofts to their outdoor eating and living areas and children's play area and the impact of noise, smell, dust and debris from the birds and the spread of vermin that are likely to be attracted to the lofts. The removal of trees was also of concern to some residents. 19 Mr S Cooper, the Court Appointed Coustic Expert, assessed the noise impacts of the proposal and concluded that while the noise from the pigeon loft would be audible at adjoining properties, it would comply with the criteria of background plus 5 dB(A). The parties agreed that the noise issue could be met by conditions. Although Mr Gough submits that the noise criteria is an average and that the peaks of the noise from the pigeons would impact on residential amenity. The issues 20 The key and determinative issue in dispute is whether the proposed use is permissible within the 2A Residential zone. If the use is permissible within the zone the merit issues relate to the impact on residential amenity from noise, smell, debris from the pigeons, attraction of vermin and removal of trees. Permissibility 21 The key difference in opinion between the parties is that the applicant submits that the proposal is not an 'animal establishment' as it is a building or place used (in conjunction with a dwelling) for the keeping of pets and is therefore permissible within the zone. Whereas, the council submits that due to the number of animals the building is not for the keeping of pets and falls within the definition of 'animal establishment'. Council further submits that the use is not ancillary to the use of the site for a dwelling house and is therefore an innominate use, which is prohibited in the zone. 22 If the applicant's submission is adopted, a merit assessment of the development application is required and if the council's submission is adopted the development application is prohibited and the appeal must be dismissed. The council's submission 23 Mr Gough submits that the proposed development is consistent with the definition of 'animal establishment ' in LEP 2001 as the proposal involves the use of the building for the breeding, boarding, training, keeping of, caring for pigeons not the keeping of pets. The use is therefore prohibited as it is not included in the land use table for the 2A Residential zone as development allowed with consent. 24 Mr Gough also submits that the proposal does not meet the exemption in the definition of 'animal establishment' as it is not a place used 'in conjunction with' a dwelling. The proposal does not meet the tests established by Pearlman CJ in Sweeny Pastoral Company v Snowy River Shire Council [1993] NSWLEC 198 and followed by Stein J in Garry Parsons & Anor v Hornsby Shire Council [1995] NSWLEC 69 which state that physical proximity is not enough. The two uses do not share the required connection, relationship or association with each other as the accommodation of up to 200 pigeons, whether pets or not, is a not an ordinary use anticipated for a residential property. 25 Mr Gough submits that the use is not the keeping of pets as the size and nature of the of the lofts together with the intensity of the activity is indicative of it being a separate use for the keeping of racing pigeons not pets. He relies on the Macquarie Dictionary definition of pet as: any domesticated or tamed animal that is cared for affectionately. 26 The number of pigeons, in Mr Gough's submission precludes 'an affectionate relationship'. 27 Mr Gough supports his position by reference to a number of authorities. In Hawkesbury Shire Council v Mitchell and Anor [1988] NSWLEC 8, Stein J held that keeping of 10 dogs was a 'significant number of dogs' and not an ancillary to and subsumed into the dwelling house use. His Honour held that the land was used for two distinct purposes and that neither use was subservient to the other. 28 In Tweed Shire Council v Litonia Pty Ltd [1993] NSWLEC144, Pearlman CJ considered the keeping of guinea fowls as a hobby and concluded that this activity was not an ancillary use or incidental to the use of the land as a dwelling. Her Honour found that: The application of that principle is one of fact and degree (per Gibbs CJ in Lizzio and Anor v Ryde Municipal Council [1983] 51 LGRA 114 at 170) and an activity may qualify as an independent purpose notwithstanding that it is a hobby of the owners and essentially non commercial in character (per Stein J in Hawkesbury Shire Council v Mitchell and Anor [1988] 64 LGRA 235 at 238). 29 Whittlelesea CC v RG Simmons [2000] VCAT 960 (30 April 2000) dealt with the question of whether the keeping and breeding of 120 pigeons was ancillary to the use of a dwelling. The Tribunal found that We are unable to accept that the keeping of pigeons is merely ancillary to a dwelling in the circumstances that pertain here. The activity proposed by Mr Simmons is of substantial scale and intensity. 30 Mr Gough accepts that two purposes can occur on the one property, even if one is prohibited, provided the subordinate use is ancillary to the dominant use. He refers to Foodbarn Ltd v Solicitor General (1975) 32 LGERA 157, where Glass J stated: It may be deduced that where a part of the premises is used for a purpose which is subordinate to the purpose which inspires the use of another part, it is legitimate to disregard the former and to treat the dominant purpose as that for which the whole is being used. Doubtless the same principles would apply with the dominant and servient purposes both relate to the whole and not to separate parts. 31 Mr Gough submits that the test as to whether uses are ancillary relate to the characterisation of the use and are discussed by Sheahan J in Maryland Development Co Pty Ltd v Penrith City Council & Anor [2001] NSWLEC 135. 92. Questions of characterisation involve subjective views as to matters of fact and degree. Shire of Perth v O'Keefe (1963) 110 CLR 529. I surveyed the authorities on characterisation of DAs in University of Sydney v South Sydney Council (1998) 97 LGERA 186 (at 200-209) and concluded (at 214-215 omitting case references): What is required is not "precise cataloguing" (Kitto J in O'Keefe), but a "detailed examination of the facts" to construe the purpose " broadly " and " liberally " without "confining the user to precise activity" in the town planning context. (Kirby P in Boyts Radio). The Court must examine the "character, extent and other features" of the proposal (O'Donnell) and determine its "appropriate genus " (Kirby P in Boyts Radio and Steedman) and whether other aspects of the proposal might best and/or fairly be regarded as species of that genus (Pryor Park). The law does not require me to "force fit" the proposal into any of the models defined in Foodbarn, O'Donnell or Pryor Park. Questions of fact and degree are "inescapably involved" and characterisations will always be "partly impressionistic" (Penrith). Where more than one use is involved in a proposal the primary consideration is the relationship between/among them, beyond their shared use of the subject site (Blakemore). 32 Mr Gough submits that the proposed use of the lofts for breeding and racing pigeons is not ancillary on the basis that the number of pigeons and the intensity of the use result in it being more than a hobby or keeping of pets that are part of the ordinary use of a site for a dwelling house. The applicant's submission 33 Mr McKee submits that the proposed development falls under the exemption in the definition of 'animal establishment' being a 'building or place used (in conjunction with a dwelling) for the keeping of pets. It is therefore not prohibited. 34 The proposed loft is a building or place which is to be constructed on a site that is used for a dwelling in which the applicant will live and train the racing pigeons as his hobby. 'In conjunction with' is not defined in LEP 2001 but can be understood from its normal meaning. The Oxford Illustrated Dictionary defines 'in conjunction' as 'together (with). The definition of 'animal establishment' therefore requires that the separate dwelling be used together with the proposed building or place. The facts of the proposal clearly meet this requirement. 35 'The keeping of pets' is not defined in LEP 2001 or the Model Provisions. Mr McKee submits that the proposed use constitutes the 'keeping of pets' within its ordinary meaning and understanding. 36 Further, Mr McKee submits that the case law referred to in council's submissions is distinguishable on the facts of the proposal before the Court. The cases rely on different definitions of 'animal establishment' and the conclusions as to whether the use conforms to that definition, and as to whether it is ancillary to the dominant use on the property, are not applicable to the facts of this application. 37 In particular, Mr McKee referred to Mitchell and Litonia where both definitions of 'animal establishment' included an element of intensity of use and both were prosecutions for the carrying out of an 'animal establishment' without consent and defended on the basis that the use was ancillary and did not require consent. 38 Mr McKee's submission in relation to Whittlesea is that it is a Victorian case which operates under different legislative and local planning schemes. The keeping of pigeons was found to fall within the definition of 'agriculture group' and therefore not be ancillary. The case referred to two other cases where the Tribunal found that the keeping of pigeons for racing purposes was a hobby and the pigeon loft for that purpose was an appurtenance of the dwelling and therefore did not require consent. In those cases the lofts were to accommodate 50-60 racing pigeons. Findings 39 In the 2A Residential zone, all development is prohibited unless it is permissible with or without consent. The key question before the Court is whether the proposed use can be characterised as any of the uses which are permissible within the zone, if so it is permissible, if not, it is an innominate use and is prohibited. If the proposed use is not characterised as a permissible use it is not then necessary to categorise it into a form of development defined in LEP 2001, such as 'animal establishment', as any use not included as permissible, is prohibited. 40 The proposal is not exempt development and is therefore not permissible without consent. 'Dwelling houses' are permissible with consent and this is the current use of the site. The pigeon lofts would be permissible if characteristic or ancillary to the use of the site as a dwelling house. 41 'Animal establishments' are not a permissible use in the zone. Whether the proposal falls within the exemption to the definition is relevant only in so far as it gives guidance in determining whether the use is part of the ordinary use anticipated as part of a dwelling house. The exemption states that a building or place used (in conjunction with a dwelling) for the keeping of pets is not defined as an 'animal establishment. The corollary is that such an activity would be a residential in nature and part of or an ancillary use to a dwelling house. 42 The question of whether the character, extent and features of the proposed use are those of a dwelling house involve subjective views as to matters of fact and degree. The particular facts of the case are that the proposal occurs on a suburban allotment of some 790 sqm. The site adjoins seven residential properties, with the lofts being within 1.5m to 3m of three of the adjoining properties. The proposal is 78sqm in size and accommodates up to 200 pigeons, the majority are required to be exercised which involves flying over other properties. 43 In answering this question I am more persuaded by the submissions of Mr Gough. The particular character, extent and features of the use in this context are not characteristic of a dwelling house or ancillary to such a use. The cases referred to by Mr Gough, clearly indicate that the intensity of use is relevant in determining whether a use is characteristic or ancillary to a dwelling house use. The care of domestic pets and hobbies are an ordinary part of a residential use. However, there is a limit to the number of pets or the intensity of use which, if crossed, change the dynamic to beyond that which is reasonable and anticipated in the zone. 44 I accept that Mr Shears will care for his pigeons and that pigeon racing is his hobby and undertaken on a non commercial basis. I also accept that due to the nature of pigeon racing there is a minimum number of birds that are required to be breeders and racers due to the high attrition rate. Mr Shears estimated that at the start of the season he would need about 120 racing pigeons but by the end of the season this would have reduced to about 60. 45 The proposal requires a great deal of care and management on the part of Mr Shears including exercising the birds and cleaning the lofts. Mr Shear has submitted a Management Plan, which outlines the procedures to be followed. While this may ensure that the health of the pigeons and adjoining residents, it indicates the extent of the work involved and the separate nature of the use. 46 Both Pearlman CJ and Stein J distinguish between the number of animals and the intensity of use in determining whether a use is ancillary. In Mitchell, Stein J held that the keeping of ten dogs was a 'significant number' and not ancillary to the dwelling house use. Similarly in Whittlesea the Tribunal distinguished between the keeping of up to 200 pigeons and a lesser number. 47 While Mitchell and Litonia dealt with enforcement proceedings their findings are relevant to the facts of this case. I find that the number of pigeons is a 'significant number' and due to the number of pigeons and the size of the lofts is beyond the keeping of birds in an aviary or as pets or as a hobby. It becomes a separate use of the site which is not listed in the land use table as a permissible use and is not characteristic or ancillary to the dwelling house use and is therefore not permissible in the zone. On this basis the application must fail Other issues 48 For completeness I will briefly deal with the merits of the case. 49 In relation to noise, I accept Mr Cooper's evidence that the proposal will meet the criteria of background plus 5dB(A) and although audible will have an acceptable impact on adjoining properties. 50 No other expert evidence was provided. The residents raised concerns about the impact of the proposal on their amenity. While the Management Plan, if implemented, will minimise these impacts, I accept the residents' concerns that the number of birds within 1.5 m of their outdoor eating area will adversely impact on their amenity. I accept that the loft will be cleaned on a daily basis, however, the existing lofts (exhibit 6) indicate that there are still bird feathers and litter from the pigeons which is uncharacteristic of a residential environment in close proximity to outdoor eating an play areas. 51 On Mr Shear's evidence pigeons attract vermin and other animals. While he will control these there is still the concern that they will spread onto other sites. 52 The proposal involves the removal of trees, and while the applicant has agreed to replacement planting, the loss of particularly the Crepe Myrtle, which is visible from the street and the tree canopy of the Chinese Elm, will impact on the amenity of the neighbourhood. 53 For these reasons the proposal is not consistent with the objectives of the 2A Residential zone, particularly (a) to enhance the amenity and characteristics of the established residential area. Orders 54 The Orders of the Court are: 1. The appeal is dismissed 2. The development application (DA 759/2006) for the construction of a stock and race loft for the housing and training of racing pigeons at 9 Todd Circle, Old Toongabbie is refused. 3. The exhibit, except exhibits 3 and E, may be returned __________________ Annelise Tuor 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.