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: The site 9The site is described as Lot 3 DP 210086, 39 Forest Road Wyee and is generally rectangular in shape and has an area of 1.295 ha. 10The site's north-eastern boundary measures 170.973 m and is adjoined by a vacant parcel of 1(2) Rural (living) zoned land. The site's south-western boundary measures 198.211 m and adjoins 1(2) Rural (living) zoned land that currently has a single dwelling house and associated outbuildings erected upon it. 11The site's south-eastern boundary measures 70.167 m and adjoins vacant, vegetated land zoned 7(2) Conservation (Secondary) owned by the Land and Property Management Authority. 12The site's north-western boundary measures 75.257 m and adjoins Forest Road. Vehicle access to the site is provided via Forest Road, which is formed but does not have kerb and guttering. 13The site contains a single storey brick manager's residence containing the office for the operation of the Playhouse Pet Motel. Other structures existing on site include a weatherboard dwelling house, used for administration of the Playhouse Pet Motel, kennel structures and dog runs of varying size and materials, garages, fencing, ancillary structures, as well as a substantial kennel building constructed after development consent DA 11/2008 for an animal establishment was granted. Planning controls 14The site is zoned 1(2) Rural (Living) under the provisions of the Lake Macquarie Local Environmental Plan 2004 (LMLEP 2004). The adjoining land to the south is zoned 7(2) Conservation (Secondary). 15The objectives of the 1 (2) zone are to: (a) provide for the enjoyment of a rural lifestyle and the operation of small-scale rural and tourism activities, and (b) provide for a range of compatible land uses that maintain the rural environment, and (c) ensure development is carried out in a manner that improves the quality of the environment, and is within the servicing capacity of the area, and (d) retain and enhance the rural character of land, and (e) allow for the appropriate development of land presently within this zone so as to limit the need to rezone any more land to this zone, and (f) avoid land use conflict by restricting or prohibiting development that has the potential to negatively affect the sustainability of existing agriculture, and (g) provide for sustainable water cycle management. 16Dog boarding kennels are not a defined use in LMLEP 2004. However, an animal establishment is defined as: a place used for the boarding, breeding, keeping or training of animals for business purposes, and includes a riding school. 17Animal establishments are not permissible on land zoned 1(2). The use is prohibited under LMLEP 2004. 18The site was previously zoned 1(c) Rural under Lake Macquarie LEP 1984 (LMLEP1984) under which dog boarding kennels was not a defined use and the use was therefore permissible in the zone by virtue of not being a prohibited use. The provisions of section 107 - Existing Uses of the Act therefore apply. Conclusion 19As noted previously, the determination of this matter is on the basis of the consent orders. In this regard Contentions B1, B3 and B4 were not pressed due to the parties agreement to appropriate conditions. There was no evidence presented to the Court to warrant setting aside these agreed conditions. 20The remaining Contention B2 was of concern to several of the objectors. These concerns relate to noise impacts from barking dogs. The effect of the modification is to incorporate "Glasswool insulation in the ceiling and then line it with 13mm "soundcheck" plasterboard. The acoustic consultants agree this will result in a better acoustic outcome and will comply with the original noise performance condition imposed by council. The amended Condition 22 specifies the performance condition. 21In addition, the amended Condition 34 deals with 'Noise - Sleep Arousal' in terms of the maximum night-time noise level impacting on sleep disturbance. This is in accordance with the NSW EPA requirements. 22Additional management conditions have been agreed, which require the development to be operated in accordance with a detailed Plan of Management, together with a detailed recording system detailing the number of dogs kept on the premises. 23With regard to the partially completed boundary fencing, I understand that one of the concerns was that part of the fence was not erected on the boundary line. However the parties agree that this can be satisfied by completing the fence to the designated performance condition and by granting an easement to the neighbouring property owner to allow maintenance. 24Having considered the evidence and submissions, I am firstly satisfied that the modification relates to substantially the same development and that it has been notified to the objectors. It seems to me that the modified conditions satisfactorily address the concerns of the neighbours so as to achieve a satisfactory environmental outcome. I do not consider there was any substantive evidence presented to warrant refusing the consent orders. Court orders 25The Court orders by consent: (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. R Hussey 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. Decision last updated: 28 August 2013