Morrison t/as Playhouse Pet Motel v Lake Macquarie City Council [2013] NSWLEC 1162

Land and Environment Court New South Wales

Medium Neutral Citation: Morrison t/as Playhouse Pet Motel v Lake Macquarie City Council [2013] NSWLEC 1162 Hearing dates: 21 August 2013 Decision date: 28 August 2013 Jurisdiction: Class 1 Before: Hussey C Decision: Consent Orders (1)The appeal is upheld. (2)DA/11/2008A for the modification of consent for an Animal Establishment (Boarding Kennels) under s 96(2) of the Environmental Planning and Assessment Act 1979, be approved subject to the conditions annexed hereto and marked "A". (3)The exhibits may be returned except 2, A and B. Catchwords: Development modification: Animal establishment (dog boarding), noise amenity, visual impact of boundary fencing. Legislation Cited: Environmental Planning and Assessment Act 1979 Lake Macquarie Local Environmental Plan 2004 Category: Principal judgment Parties: Morrison t/as Playhouse Pet Motel (Applicant)

Lake Macquarie City Council (Respondent) Representation: Mr G Long (Respondent) Mr P Donnellan (Applicant) File Number(s): 10026 of 2013

Judgment

Background 1This appeal was lodged against council's refusal of a s 96 application to modify a development consent granted by Council for an animal establishment (dog boarding) at 39 Forest Rd, Wyee. 2According to the details in the Statements of Facts and Contentions the original consent granted in May 1980 for the dog boarding kennels allowed for the accommodation of 40 dogs on the premises. 3This consent was subsequently modified in 2008 so as to allow an increase in the number of dogs to 120 and subject to conditions, which included the construction of a new, insulated shed located towards the rear of the property. The associated conditions required the construction to incorporate noise mitigation measures and acoustic/visual fencing along the boundary of the property. The conditions were based on the recommendations of Global Acoustics, so as to achieve the following acoustic outcome: Due to their close proximity to the kennel areas, exceedence of the criteria were calculated at the boundaries of nearby residences, however, predicted noise levels with the above controls in place are no more than LAeq 43 dB at the dwellings of the nearest residential receivers during the daytime period and no more than LAeq 40 dB during night-time lock down conditions. All other residential receptors are further away or shielded such that they would receive less noise again. 4The construction work for the new shed and fencing has been substantially commenced. 5The subject s96 application was then made in February 2011 for the following modifications: * Modification of the building materials for the dog kennel structure from those previously approved under DA 11/2008 and specifically referenced in condition 21 of that consent; * Modification to location of acoustic fencing required as part of the condition 23 of the consent; * Relocation of the water tank and Envirocycle system from the western area of the site to the eastern area of the site; * Removal of conditions 16 and 17 which require car parking to be available for staff and clients at all times and to be constructed in accordance with the Australian Standard. 6In refusing the s96 modification, the following contentions were identified: B1 Modified consent not operative B2 Unacceptable noise impacts; this issue substantially related to the non-completion of insulation and sound-proofing of the structure B3 Unacceptable odour impacts B4 Visual impact of the fencing, this referred mainly to noncompleted sections of the boundary fencing and also the alignment of sections. 7Following conferencing by the parties, Contention B1 was not pursued and B3 and B4 agreed to be covered by conditions. Accordingly, the main issue concerned acoustic impacts. However following further consideration of the acoustic consultants opinions, this issue was also settled by the agreement of the parties to noise performance conditions. 8Consequently, the parties agree to Consent Orders. In determining the Consent Orders, I have considered the evidence put before the Court, undertaken a view, heard the resident's objections and the final submissions in support of the consent orders. I also rely on the facts presented of the SoFC, which I reproduce in part as follows: