Land and Environment Court New South Wales Medium Neutral Citation: Acers v Wollondilly Shire Council (No.2) [2014] NSWLEC 1172 Hearing dates: Written submissions - 22 August 2014 Decision date: 27 August 2014 Jurisdiction: Class 1 Before: Brown C Decision: See orders pars 30 and 31 Catchwords: APPEALS: two separate but related appeals - order to cease the use of site for the purposes of an animal breeding or training establishment (Appeal No 10679 of 2013) - refusal of development application for the use of the site as an animal boarding or training establishment (Appeal No 10806 of 2013) -findings on the facts of the merit appeal made and subject to the provision of suitable conditions, development consent may be granted - dispute over conditions of consent Legislation Cited: Environmental Planning and Assessment Act 1979 Wollondilly Local Environmental Plan 2011 Category: Principal judgment Parties: Peter Acers (Applicant) Wollondilly Shire Council (Respondent) Representation: Applicant in person (Applicant) Ms C Rose, solicitor (Respondent) - (Applicant) Maddocks Lawyers (Respondent) File Number(s): 10679 of 2013, 10806 of 2013 Judgment 1COMMISSIONER: These are two separate but related appeals in relation to the use of the property for keeping dogs at 275 Bargo Road Bargo (the site). 2Appeal No 10679 of 2013 is an appeal against Order Nos 1, 2 and 12 issued by the council on 30 August 2013 under s121B of the Environmental Planning and Assessment Act 1979 (the EPA Act) against the applicant. The Orders, in general, sought the Applicant to cease the use of the site for the purposes of an animal breeding or training establishment as defined in the Wollondilly Local Environmental Plan 2011. 3Appeal No 10806 of 2013 is an appeal against the refusal by the council of Development Application 010/2013/35.001 for the use of the site as an "animal boarding or training establishment". 4On 19 June 2014, findings on the facts of the merit appeal were made and it was found that, subject to the provision of suitable conditions, development consent may be granted (Acers v Wollondilly Shire Council [2014] NSWLEC 1169). Directions were given for the filing of conditions of consent in accordance with the findings in this judgement as it was agreed at the hearing that if development consent could be granted then additional time would be given for the council to prepare the conditions and serve them on Mr Acers. If there were no issues with the conditions, then final orders could be made in chambers. Alternatively, if there were any dispute then further time would be required for the Court to address the disputed conditions. 5The Directions were: 1. The council is to serve on the applicant, no later than 4 July 2014, the conditions of consent for the animal boarding or training establishment based on the findings in the judgment and other appropriate conditions. 2. The applicant is to provide a written response to the council on the conditions, no later than 18 July 2014, and if it opposes any condition, the reason for the opposition. 3. If there are any conditions in dispute, the parties are to further discuss these conditions and make every endeavour to reach agreement by 25 July 2014. 4. If there are conditions that remain in dispute, the parties have leave to approach the Registrar for a hearing date in Sydney at the earliest possible time after 4 August 2014. If there are no conditions in dispute, final orders will be made in chambers. 6A further mention was held on 12 August 2014, as the conditions had not been filed in accordance with the previous Directions. Further Directions were made requiring the conditions and any comments on the conditions to be filed by 15 August 2014 following which the matter would be determined in chambers. The conditions in dispute Condition 1(3) 3. Development shall take place in accordance with the recommendations of the "Noise Impact Assessment Animal Boarding and Training Establishment, 275 Bargo Road, Bargo" prepared by SLR Global Environmental Solutions, Report No. 610.07939.05380R2, dated 15 May 2012. 7Mr Acers states that there is extensive planting of a Photinia hedge around the 10 in 1 Kennel block and the large exercise yards, the face of the empty yard (exercise yard) is covered in shade cloth, which is taking the line of sight, there is also a 1.2m corrugated fence taking the line of sight off the neighbours property. The rear of the kennels has a row of pines forming a screen. 8As I understand, Mr Acers is suggesting that condition 3 should be deleted for the reasons set out in his submission. I do not accept this submission as the SLR Global Environmental Solutions noise impact assessment referred to in condition 3 is a report commissioned by himself to support the development application. Potential noise impacts are a genuine and valid concern and there is no reasonable basis to delete this condition. Condition 1(4) 4. A Building Certificate issued under Section 149A of the Environmental Planning & Assessment Act 1979 shall be obtained within six (6) months of the date of this consent for all structures constructed on the property associated with this consent. 9While Mr Acers submits that a Building Certificate has been approved on 16 September 2010 (pending DA approval), the council maintains that no relevant Building Certificate has been approved although there is currently an undetermined Building Certificate application before the Council. 10I find that condition must remain because there is no approved Building Certificate. Condition 1(7) 7. Within three (3) months of the date of this consent, a separate Development Application shall be submitted to Council for the construction and use of a sound-proofed holding shed in accordance with Control (2) from Section 2.3.3 Sustainable Noise Management from the Wollondilly Development Control Plan 2011 Volume 2 Primary Agricultural and Rural Uses. 11Mr Acers states that there will be no distressed dogs on the site as all dogs on the property belong to the occupiers of the site and Injured or sick dogs are taken to the vet for expert care. For this reason the condition should be removed. 12Council disagrees with the removal of this condition because in the event that a dog becomes distressed (and this may occur due to factors outside of the land owners' control) that the dog(s) be isolated from the other dogs in order to protect the amenity of the adjoining landowners from noise impacts (as required by Control 2 from Section 2.3.3 Sustainable Noise Management from Wollondilly DCP 2011 Volume 2). 13I agree that the condition may be deleted but not for the reason suggested by Mr Acers. If the purpose of the sound-proofed holding shed is to protect the amenity of the adjoining landowners from noise impacts, as stated by the council, then these noise impacts are addressed as part of the SLR Global Environmental Solutions noise impact assessment. This report does not require the provision of a sound-proofed holding shed. Conditions 7(1) and (5) can also be deleted as they relate to the sound-proofed holding shed. Condition 1(9) 9. Within three (3) months of the date of this consent the front exercise yard shall have an internal fence 1.5 metres in height installed 5 metres in from the external fence along the Bargo Road frontage of the exercise yard. Such fence shall either be post and rail or post and wire in construction and shall be dog proof with bottom wiring buried to prevent digging under the fence. 14Mr Acers states that the front exercise yard is used as a recovery yard, the dog in this yard is supervised and is not left unattended at any time. Installing an internal fence serves no purpose. 15The council, in response to Mr Acers comments offers the following replacement condition: (9) No unsupervised dog shall be in the front exercise yard unless an internal fence 1.5 metres in height installed 5 metres in from the external fence along Bargo Road frontage of the exercise yard has been installed. Such fence shall either be post and rail or post and wire in construction and shall be dog proof with bottom wiring buried to prevent digging under the fence. In this condition, a dog shall be considered unsupervised if there is no adult in the yard at the same time. 16I find that the council's replacement condition is acceptable. Condition 2(3) (3) The dogs on-site shall be muzzled (with barking muzzles) from the time that they are returned to their kennels in the afternoon (4:30pm) until the next morning feeding time (8:00am) to prevent the dogs from barking during the evening and night time periods. 17Mr Acers states that in summer time that this time of 4:30pm be left to the operators discretion as it is still quite warm at this time. 18The council, in response to Mr Acers comments offers the following replacement condition: "(3) The dogs onsite shall be muzzled (with barking muzzles) from the time that they are returned to their kennels (by sunset) until the next morning feeding time (8am) to prevent the dogs from barking during the evening and night time periods." 19I accept that the council's replacement condition is acceptable but add the following words after sunset "or no later than 9.30pm". 20Condition 9(11) (11)The total number of dogs (inclusive of companion animals) permitted to be accommodated on the site shall not exceed eighteen (18) dogs (excluding pups less than 6 months in age) at any one time. 21Mr Acers states that Council allows 5 dogs per hectare and there are no restrictions on companion animals. The council states that the 5 dogs per ha control came from a former Development Control Plan that was repealed on 23 February 2011. I understand Mr Acer seeks the deletion of the condition. The council's submission that development consent was sought for a total of 18 dogs to be kept on site is not entirely correct as the Statement of Environmental Effects described the number of dogs as "a maximum of 18 adult dogs (not including companion dogs and dogs less than 6 months of age). The SLR Global Environmental Solutions noise impact assessment report however adopts the position that "the dogs limited to the site is 18 (excluding puppies up to 6 months" for their assessment. The deletion of the condition will provide for no restriction on the total number of dogs permitted to be kept on the site. It is necessary that a restriction on the number of animals be placed on the development consent in accordance with the SLR Global Environmental Solutions noise impact assessment report. On this basis, the condition must remain. Condition 9(22) 22) No more than two pups shall be kept in each of the exercise yards located to the north-west of the holding pens. No dogs shall be kept in these yards. 22Mr Acers disagrees with the condition as greyhounds are classed as pups up until 2 years old. He suggests that the dogs be left in the exercise yards to grow up until break in at 12-14months of age on the chance of an odd number of pups, I would like to be able to have no more than 3 puppies. 23The council, in response to Mr Acers comments offers the following replacement condition: (22) No more than three (3) pups under twelve (12) months shall be kept in each of the exercise yards located to the north-west of the holding pens. No dogs shall be kept in these yards 24I find that the council's replacement condition is acceptable with the amendment that allows pups up to 14 months and the word "other" after "No" in the last sentence. Condition 11(1) 1) An application under the provisions of the Environmental Planning & Assessment Act 1979 shall be submitted to and approved by Council prior to the erection and/or display of any advertising signs unless the sign is exempt development as defined by that Act. 25Mr Acers states that the condition is not applicable and he is correct if he does not wish to erect any signs however only it is advisory and can remain. Condition 12(1) (1) Within three (3) months of the date of this consent, a detailed landscape plan, drawn to scale by a person with horticultural qualifications or similar (such qualifications must be endorsed on the plans) shall be submitted to and approved by Council. This plan must include the following: (a) All existing and proposed site structures (b) All existing vegetation (c) Details of proposed earthworks including mounding, retaining walls and planter boxes (d) Location, number and type of proposed plant species (e) Details of planting procedure and maintenance (f) Details of drainage and watering systems (g) Provision of only native species that are endemic to the region (h) Details of compliance with the landscaping requirements of other conditions of this consent. Condition 12(2)(a) a) A continuous single row landscape shall be established along the south-western property boundary and extend the entire length from the holding pens and exercise yards through to the large exercise yards. Condition 12(2)(b) b) The area between this internal fence and the existing boundary fence referred to in Condition 1(9) is to be suitably landscaped. This landscaping strip shall extend for the entire length of the proposed exercise yard at the front of the property and be no less than 3 metres in depth. Condition 12(2)(c) c) A single row of landscaping shall be established for the entire length between the corrugated iron fence and the property boundary. At maturity, landscaping within this area shall have a maturity height no less than 2 metres in accordance with Control 3, Section 2.3.6 Landscaping from the Wollondilly Development Control Plan 2011 Volume 2 Primary Agricultural and Rural Uses. 26Mr Acers states that the conditions are unnecessary and should be deleted. He states that he is trying to keep a line of sight to the dogs and by planting a 3m depth of bush/scrub will encourage vermin, rabbits, snakes, foxes, wallabies etc. to use in this area. Planting shrubs and trees to the front of the property at a height of no less than 2 m also poses a safety issues to the residents. 27The council disagrees with the deletion of these conditions as they have been imposed to provide a buffer between the development and surrounding land uses, to assist in noise mitigation and to minimise the visual impacts of the development on the surrounding landscape (Objectives (a) and (b) from Section 2.3.6 Landscaping from Wollondilly DCP 2011 Volume 2). The setbacks from the kennels to the south western boundary are also significantly less than the setback requirements in Council's DCP. To ameliorate amenity impacts on the adjoining properties, the provision of planting along this boundary assists. Some pine trees are currently planted in this location however council's policy is to discourage the planting of pine trees in locations such as this. 28While I do not accept Mr Acers position that no landscaping should be provided, I equally do not accept the councils requirements for landscaping. Landscaping that is to be provided should be commensurate and proportional to the scale of the development. I do not accept that a continuous row of landscaping along the south-western property boundary, a row of landscaping along the entire length between the corrugated iron fence and the property boundary, a row of landscaping along the front boundary and a detailed landscape plan, drawn to scale by a person with horticultural qualifications are either appropriate or proportional in this case. 29The physical structures associated with the development should have some planting to provide some screening but given their distance from Bargo Road, adjoining dwellings, their small size and their rural form, the council's requirements are excessive. The holding pens and the old sheds, particularly the south western boundary, should be screened but I see no reason to screen the exercise yards. It is also widely acknowledged that landscaping provides little, if any noise amelioration. The conditions identified above should be replaced with the following condition: 12) Within three (3) months of the date of this consent, landscaping must be provided to partially screen the holding pens, the old sheds, particularly from the south western boundary At maturity, such landscaping shall have a height no less than two (2) metres The existing conifers are to be retained. All landscaping required to be established as part of this consent shall be of local native provenance The landscaping must be maintained for the time this consent is operative. For more information on acceptable species for the locality, please refer to Table 1: Recommended Groundcover and Small Shrub Species (under 1 metre) for the Shire, Table 2: Recommended Shrub Species (1 to 5 metres) for the Shire and Table 5: Southern Area: Bargo, Buxton, Tahmoor and Thirlmere from Section 2.4 Landscaping from the Wollondilly Development Control Plan 2011 Volume 1 - General. Orders 30The orders of the Court in Appeal No 10806 of 2013 are 1. The appeal is upheld. 2. Development Application 010/2013/35.001 for the use of the site as an "animal boarding or training establishment" at 275 Bargo Road Bargo is approved subject the conditions in Annexure A. 3. The exhibits are returned. 31The orders of the Court in Appeal No 10679 of 2013 are that the appeal is upheld and Order Nos 1, 2 and 12 issued by the council on 30 August 2013 under s121B of the Environmental Planning and Assessment Act 1979 are revoked. ____________ G T Brown Commissioner of the Court Annexure A 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: 27 August 2014