Land and Environment Court New South Wales Medium Neutral Citation: Andre & anor v Northern Beaches Council [2016] NSWLEC 1478 Hearing dates: 4-5 August 2016; 31 August 2016 Date of orders: 14 October 2016 Decision date: 12 September 2016 Jurisdiction: Class 1 Before: Fakes C Decision: Appeal upheld – subject to conditions Catchwords: DEVELOPMENT APPLICATION: Dog obedience and agility training school; keeping of dogs on site; condition of consent for subdivision and restriction on user against the keeping of domestic animals; protection of fauna; trial period imposed Legislation Cited: Environmental Planning and Assessment Act 1979 Conveyancing Act 1919 Land and Environment Court Act 1979 Warringah Local Environmental Plan 2011 Cases Cited: BGP Properties Pty Ltd v Lake Macquarie Council [2004] NSWLEC 399 Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75 Project Venture Pty Limited v Warringah Shire Council & Anor [2006] NSWLEC 754 Zhang v Canterbury City Council (2001) 115 LGERA 373 Category: Principal judgment Parties: Mark Andre (First Applicant) Kirsten Andre (Second Applicant) Northern Beaches Council (Respondent) Representation: Counsel: Applicant: Mr P Tomasetti SC Respondent: Mr R Lancaster SC Solicitors: Applicant: Pikes & Verekers Lawyers Respondent: Wilshire Webb Staunton Beattie Lawyers File Number(s): 158138 of 2016 Judgment 1. COMMISSIONER: The applicant appeals Northern Beaches Council's deemed refusal of development application DA2015/0498 (the DA) for a dog obedience and agility training school at I Yanada Road, Duffy's Forest (Lot 7 in DP 1132323) (the site). The DA seeks to modify item 6.2 from the existing s 88B instrument to remove the restriction on the keeping of dogs on the site. 2. The appeal is made pursuant to s 97(1) of the Environmental Planning and Assessment Act 1979 (EPA Act). The site and its locality 1. The site was created as part of a seven lot subdivision of Joalah Road, Duffys Forest, conditionally approved by the Land and Environment Court on 31 October 2006 (see Project Venture Pty Limited v Warringah Shire Council & Anor [2006] NSWLEC 754). 2. The site is identified as Lot 7 in DP 1132323. The 2.29 ha site is the western-most lot of the subdivision; at the end of a private road. The site is occupied by a large dwelling house with associated driveway, double garage, sheds - including a chicken coop, landscaped gardens, a large fenced lawn and cleared asset protection zones which are bounded by a fire trail. The site also includes 1.055 ha of intact bushland identified as a conservation area. 3. To the south, the site adjoins Waratah Park, a 12.6 ha area of bushland, otherwise known as the home of 'Skippy the Bush Kangaroo'. Waratah Park is listed on the NSW State Heritage Register. To the north and west, the site adjoins a 12.54 ha public reserve. This was proposed Lot 1 in the subdivision, which was subsequently dedicated to council as public open space. There is no direct public access to this reserve. The reserve adjoins Ku-ring-gai National Park. 4. The Lot, as part of plan DP1132323, is burdened by a number of easements, positive covenants and restrictions on the use of the land identified in an instrument pursuant to s 88B of the Conveyancing Act 1919. The proposal 1. The development application was lodged with council on 3 June 2015. On 9 June 2016 the applicants obtained leave from the Court to rely on an amended proposal. 2. The proposal before the Court is for a dog obedience and agility training school on the site. It includes the following provisions: * The number of dogs to be trained at any one time is to be limited to five. * A fauna exclusion fence, designed by the applicants' ecologist, is to be constructed around the perimeter of the lawn and will incorporate the existing fence. Existing gates will be modified to exclude wildlife. * An operating manual will be prepared. * The applicants' will keep their own dogs (a maximum of three) on the land; the dogs will be confined indoors between dusk and dawn. * The number of training sessions will be limited to three x three hour sessions between the hours of 2.00pm and sunset; there will be no training requiring artificial lighting. The issues Council's position 1. In summarising council's Amended Statement of Facts and Contentions (Exhibit 1), council's first contention is that the development should be refused as it is inconsistent with the existing s 88B instrument prohibiting the keeping of dogs on the site as the restriction was imposed in order to protect a number of threatened species which are known to, or are likely to occur, within and near the site. These threatened species are not limited to the Southern Brown Bandicoot, Rosenberg's Goanna and the Eastern Pygmy Possum. If access is not restricted and provided there are no animals such as dogs which may disturb them, these threatened species will, from time to time, use the landscaped gardens associated with the dwellings as a habitat resource, especially in times of drought. Council notes the recommendation in the Species Impact Statement (SIS) prepared for the subdivision, which informed both the LEC decision and the s 88B instrument, to exclude dogs as well as cats. 2. Council is concerned that the proposed amendment to the s 88B instrument will establish an unsatisfactory precedent and encourage further applications to modify similar restrictions on other lots to enable the keeping of dogs; especially as the applicants intend to permanently keep their dogs on the site as part of the proposal. The keeping of dogs on the premises will also place an unreasonable burden on council to enforce compliance over part of the site compared to an outright restriction over the entire site. 3. Council's second contention is that the development, because of the keeping of dogs on the site, should be refused as it will result in conflict between the site and the adjoining land use which includes conservation areas within the lots, natural areas within the council reserve, and the National Park. In this respect the proposal is inconsistent with the relevant zone objective to minimise conflict between land uses within adjoining zones. Applicants' position 1. In their Statement of Facts and Contentions in Reply, the applicants maintain that while some threatened species may occasionally use the habitat resources in the landscaped gardens, the assertion that they will use them is speculative. The previous LEC proceedings were determined on the evidence before the Court at that time; this is a fresh application to be determined on its own merits. The proposed fencing and management procedures will overcome any concerns that may have been previously held with respect to fauna. In particular, the premise underlying the imposition of condition 68 in the sub-division appeal is no longer relevant. 2. In regards to setting a potential precedent, the applicants contend that as the application is specifically for a dog obedience and agility training school, this is unlikely and will not lead to a dilution of the efficacy of the s 88B instrument. No additional burden will be placed on council's compliance officers. 3. Given the retention of native vegetation on the site and the restriction of the proposed use to an area well separated from bushland, the proposal will minimise conflict between land uses of adjoining zones and thus will not offend the zone objective. Relevant background 1. The development application for the 2006 subdivision which resulted in the creation of the applicants' lot required the preparation of a number of documents pertaining to the special ecological features of the locality and the lot to be subdivided. 2. Given the number of threatened species identified on the proposed 27 ha subdivision site, a Species Impact Statement (SIS) was prepared by Conacher Travers. A number of threatened species were identified within the subdivision site including the Red-crowned Toadlet, Rosenberg's Goanna, Powerful Owl, Melaleuca deanei and Tetratheca glandulosa. The SIS noted that Southern Brown Bandicoots were not recorded on the site but were recorded in adjoining bushland. Section 5.5 of the SIS – Description of feasible alternatives, on p 79, in regards to 'The Precautionary Principle' states: The exclusion of cats and dogs from the proposed development by way of a Section 88b Instrument (or similar) will ensure no increase in predation from introduced species will occur as a result of the proposed development. 1. Section 7 of the SIS addresses the Director General's requirements for ameliorative measures. On p 84 the SIS notes that a number of additional measures have been included into the proposed development including the preparation, by Conacher Travers, of a Threatened Species Management Plan, Bushland Management Concept Plan, and Vegetation Management Plan, which amongst other things address issues such as the impacts of cats and dogs on native wildlife. On p 85, ameliorative measures are listed, including the use of a Section 88B Instrument or similar to exclude cats and dogs from the development. 2. The Threatened Species Management Plan (TSMP) dated February 2006 (Exhibit 7), referred to in the SIS, addresses the specific management actions and priorities to ensure the protection of each of the threatened species identified on the subdivision site and their habitats within the post development landscape (Exhibit 7 p 7). The reasons for the need to exclude dogs from the subdivision are detailed for the Red-crowned Toadlet (p 19), Rosenberg's Goanna (p 20), Powerful Owl (p 24), and the Southern Brown Bandicoot (pp. 27-29). 3. The Vegetation Management Plan (VMP) dated February 2006 (Tab 13, Exhibit A) and prepared in accordance with the TSMP identifies strategic "Development Exclusion Areas (DEAs) to conserve threatened species habitat inclusive of community lot 1 and within lot vegetation outside of the APZ" which have restrictions on their use. The restrictions are to prohibit, amongst other things, disturbances to any native vegetation, habitat, or wildlife. The VMP includes a number of Schedules which are plans illustrating the designation and location of certain areas and elements of the proposed subdivision. Schedule 4.7 is a detailed plan for Lot 7. Amongst other things, the Schedule shows the proposed location of an exclusion fence between the Inner Protection Area and the Conservation Area. 4. In Project Venture Moore C, as he then was, in approving the subdivision, wrote the following (relevantly): 95. Having dealt with all of those matters, I have concluded that subject to a number of matters being dealt with, the application should be approved and the appeal upheld. 96. There are, however, two matters of detail raised by the applicant with respect to conditions that need to be dealt with and there is also a matter relating to the consolidation and finalisation of Exhibit J, that is the plan of subdivision to reflect those matters necessarily arising out of Exhibit R, that is the final concept plan before orders could be issued. [97-101 consider the first matter regarding s 94 contributions] 102. The second matter arises concerning condition 68 which is a requirement that there be a restriction on the keeping of cats, dogs and other livestock. 103. Although there was some discussion in the latter stages as to how one would define livestock in such a restriction, I am satisfied that an appropriate description for the purposes of me dealing with the matter is cats, dogs and other livestock of the type that would normally be notified to a Rural Lands Board in an annual stock return – that is sheep, goats, alpacas, camels, horses, cows and what one might otherwise describe as large herbivores. 104. The applicant resists those elements that go beyond the banning of cats. The applicant is prepared to accept a restriction by way of a s 88B instrument, in favour of the council, prohibiting cats but resists one for all other animals. 105. However, at p 85 of the species impact statement prepared by Mr Travers, it is noted that cats and dogs should be excluded. 106. I am satisfied, on the basis of the delineation of the asset protection zones condition (being that contained in cl 39 as to the creation of the fencing and cl 64 as to its maintenance), that the fence is one which will permit fauna such as the bandicoot or the Rosenberg goanna to be able to access the inner access protection zones and that, in the interests of protecting that threatened fauna, it is appropriate that not merely cats but also dogs be banned from the subdivision. 1. Condition 1 of the development consent includes a reference to 'The Environmental Site Management Plan' prepared as approved in accordance with condition 8. Condition 8 – Environmental Site Management Plan – is a detailed condition requiring the preparation of an ESMP for each lot, other than the lot to be dedicated to council. The ESMP is to be detailed and comprehensive and based on the documentation prepared by Conacher Travers including the VMP, Bushfire Protection Plan and proposed Sub-division Plan. 2. Condition 68 of the development consent for the subdivision states: 68 Restriction on animals No cats, dogs (other than guide dogs for assistance of vision impaired persons), horses or other animals which fall within the definition of "stock" under the Rural Lands Protection Act 1999 are permitted on lots 2 to 7 inclusive, at any time. Prior to the issue of a subdivision certificate, a section 88B instrument which includes the restrictive covenant, which prohibits the keeping of the said animals, in registrable form, shall be prepared by the owner of the land and produced to Council for approval and execution. Once a subdivision certificate has been issued, the covenant is to be registered on title to each of the lots. The instrument must stipulate that the only person with the right to release, vary or modify the covenant is the Council. All costs associated with the preparation, execution and registration of the instrument are to be borne by the owner of the land. Reason: To ensure bushland management. 1. Apart from the restriction on user relating the keeping of dogs and other domestic animals, s 88B instruments were required for Bushland Conservation (condition 5), Asset Protection Zones (APZ) (condition 6), a Flora/fauna Monitoring Plan (condition 6a) fences (condition 63), delineation of the APZ (condition 64) various easements (conditions 84, 86, 87, 96) and dwelling footprints (condition 91). The bushland conservation condition requires compliance with the Environmental Site Management Plan (ESMP) to be prepared for each lot. 2. Conditions 39, 63 and 64 relate to fences. Condition 39 requires, amongst other things, the extent of the surveyed APZ to be fenced with 1150 mm high, galvanised hinge joint fencing comprising 8 horizontal wires and vertical wires spaced every 30 cm. The reason is to ensure bushland management. 3. The Ecological Site Management Plan (ESMP) was prepared in July 2007 by Conacher Travers for the approved subdivision (Exhibit 3). The Executive Summary states that the ESMP "identifies relevant environmental protection measures using best practice ecological site management practices within the context of a rural-residential style development". Further, it notes that plans included in the document are to be used in the preparation of covenants that apply on a lot by lot basis. In section 2.4 – Conservation Areas, the ESMP states: The long term conservation of remnant vegetation, threatened species and their habitats is considered to be a high priority for maintaining local biodiversity. Conservation Areas as identified in the Ecological Experts Plan – Schedule 1C, is defined by an exclusion fence at the interface of the asset protection and conservation zones. 1. ESMP Section 3.3 considers the core conservation measures for the development and long-term management of the subdivision, including the implementation of covenants for the protection of the environment and wildlife in general. The integration of the proposed development adjacent to ecologically sensitive lands and wildlife habitat has required the imposition of covenants that protect the retained vegetation and the inherent wildlife habitat in the long term. These covenants…include amongst others:- [eight listed but relevantly] Restrictions on the keeping of cats, dogs (other than guide dogs for the assistance of the visually impaired person), horses or other animals which are defined as stock under the Rural Land Protection Act 1998. Restrictions on the type and placement of fences or obstructions that limit the free movement of wildlife across the lots. 1. The nature of the primary exclusion fencing is provided in s 3.9.1 being the type described in [24] above. The Ecological Experts Plan is Figure 6 in the ESMP. It shows the location of threatened species found on the subdivision site and the location of fences etc. as shown on the plans in the VMP. 2. DP1132323 – the plan of subdivision, and the related s 88B instrument under the Conveyancing Act 1919, required by condition 68, were endorsed by the consent authority, Warringah Council, on 25 May 2009.The Plan and Instrument were registered on the title of each lot on 25 June 2009. 3. In early 2014 the applicants purchased their property and were aware of the restrictions placed upon it. 4. The applicants seek to modify item 6.2 of the s 88B instrument, by deleting the reference to dogs, in order to facilitate the use of the site for a dog obedience and agility training school. Item 6.2 states: 2. The Grantor of each Lot Burdened in respect of such Lot must not keep or permit to be kept or allow on the lot cats, dogs (other than guide dogs for the assistance of a visually impaired person), horses or other animals which fall within the definition of stock under the Rural Protection Act 1998. The assessment framework 1. The site is zoned RU4 Primary production Small Lots in Warringah Local Environmental Plan 2011 (WLEP). Animal boarding or training establishments are permitted, with consent, in the zone. The zone objectives are: * To enable sustainable primary industry and other compatible land uses. * To encourage and promote diversity and employment opportunities in relation to primary industry enterprises, particularly those that require smaller lots or are more intensive in nature. * To minimise conflict between land uses within this zone and land uses within adjoining zones. * To minimise the impact of development on long distance views of the area and on views to and from adjacent national parks and bushland. * To maintain and enhance the natural landscape including landform and vegetation. * To ensure low intensity of land uses other than land uses that are primary industry enterprises. * To maintain the rural and scenic character of the land. 1. Waratah Park is also zoned RU4. The adjoining land to the north and west is zoned RE1 Public Recreation. Beyond the RE1 land is Ku-ring-gai National Park zoned E1. The objectives of the RE1 zone are: * To enable land to be used for public open space or recreational purposes. * To provide a range of recreational settings and activities and compatible land uses. * To protect and enhance the natural environment for recreational purposes. * To protect, manage and restore public land that is of ecological, scientific, cultural or aesthetic value. * To prevent development that could destroy or otherwise have an adverse effect on those values. 1. 'Animal boarding or training establishment' is defined in WLEP as: a building or place used for the breeding, boarding, training, keeping or caring of animals for commercial purposes (other than for the adjustment of horses), and includes any associated riding school or ancillary veterinary hospital. The hearing 1. The hearing commenced on site. A number of local residents and representatives of local community groups made oral submissions in addition to their written submissions to council. Objector/ supporter submissions 1. Speaking against the proposal, Ms J. Marlow, an ecologist and member of Sydney Wildlife Park, stated that Rosenberg's Goanna and the Eastern Pygmy Possum could be expected to use the site for foraging, as they are present in the vicinity, and that the type of fence (as originally proposed) would not necessarily prevent the movement of small animals such as the Eastern Pygmy Possum, Red-crowned Toadlet, snakes and so on. She stated that dogs were in the top three threats to native wildlife (the others being cars and cats). Ms Marlow voiced the concerns of members of Sydney Wildlife Park that to allow dogs on the site would set an undesirable precedent especially given the comments of other residents in the area with similar restrictions that support the proposal. 2. Mr R Smallwood made a submission on behalf of the Duffys Forest Residents Association opposing the proposal (Exhibit 6). The Association was the second respondent in the subdivision appeal. The Association presses the environmental sensitivity of the site and the locality as the reason for the imposition of the specific controls in regards to the keeping of exotic animals on the site. In addition, the Association notes Moore C's findings that provisions be made to enable threatened species to come onto the land and not be excluded from it. The written submission states that the Association had not intended to make a submission however, on becoming aware of a petition which appears to support the general keeping of dogs in similar environmentally sensitive areas, the Association wrote to council asking council to enforce and monitor the relevant conditions of consent. 3. Ms K Richards, the owner of the adjoining property in the subdivision raised no objection to the proposal. Mr J Malnic, who owns another allotment in the subdivision, strongly supported the keeping of dogs on these and other similarly controlled lots. 4. Council's bundle of evidence (Exhibit 2) contains a pro-forma letter and a list of 51 signatories. The letter, addressed to the General manager, Warringah Council, states [as written]: RE: Condition 68 of DA2002/0815 – Keeping of Dogs Dear Sirs/ Madam, I have been advised by Mark & Kirsten Andre who reside at 1 Yanada Road Duffys Forest that they will be submitting to council a DA Application for the removal of the current restriction preventing them from having a family dog (cats excluded) on their property in terms of the above condition. They have explained to me their intentions in respect of having family dogs as afforded to all other families within the area as well as their love of training their dogs. They are also fully aware of their surrounds and the importance of being a responsible pet owner in this regard. By signature hereto below I wish to offer my support in their application to have this condition removed and by doing so permit them to enjoy the benefits of having a family pet as enjoyed by all other residences within the district. 1. The bundle contains another eleven online submissions from residents who support the proposal; five submissions support the keeping of dogs in general and make no particular mention of the proposed training facility. A further six more detailed submissions, mostly from people with concerns for the protection of wildlife, oppose the proposed development. The second applicant 1. Ms Kirsten Andre is the second applicant and intended operator of the proposed dog obedience and agility training facility. In her statement included in Exhibit A (Tab 6) Ms Andre states that she has qualifications in canine behaviour and between 2012 and 2013 volunteered at the Ingleside Animal Welfare League assessing surrendered dogs for their temperament for adoption. From 2013 to 2014 she was a puppy trainer at various locations around the northern beaches. 2. The applicants own three dogs, two are Shetland Sheepdogs and the third is a 12 year old Beagle. In 2012 Ms Andre enrolled both sheepdogs in agility classes and from 2013 has successfully participated in agility competitions with one of sheepdogs. The Beagle is described as "retired". 3. In oral evidence Ms Andre stated that she currently runs occasional obedience and agility training sessions at St Ives Showground. The two Shetland Sheepdogs are used as demonstrator dogs with the dog and trainer/handler operating as a team. Each dog is used to demonstrate different events at different levels of complexity. 4. Ms Andre said she was fully aware of the restrictions on the site regarding the keeping of dogs when she and her husband purchased the property but thought that the council did not take the matter too seriously as the previous owner kept two dogs on the premises. 5. In regards to a question as to whether the proposed 1.2m high fence was sufficient to contain dogs, Ms Andre stated that she did not intend to restrict any particular breeds or sizes of dog but she is not proposing to accept novice dogs with little or no training. The highest jump on the circuit is usually 600mm. In addition, Ms Andre stated that owners would be issued with the operating plan and would be required to sign and acknowledge their responsibilities. Visiting dogs would arrive on leash and be restrained in crates or on leash when not in training. The large expanse of lawn is required for warm-up purposes. If visiting dogs did not behave they would have to leave the premises. Ms Andre considers the site to be ideal as it is quiet and suitable for dogs that are fearful or scared. 6. Ms Andre proposes to run no more than 3 x 3 hour sessions per week as any more would be too taxing on the dogs. She expects to charge about $20/hour/team. Ms Andre stated that she does not need to operate to make a profit and was intending to donate any profits to animal welfare. She has not registered as a business. 7. Ms Andre stated that her dogs currently have the run of the yard and are left unsupervised if no one is at home during the day. She opposes any condition of consent which would require the dogs to be kept indoors during the daytime when no-one is home on the basis of the welfare of the dogs. Ecological evidence 1. The parties' ecologists, Mr Dominic Fanning for the applicants, and Mr Robert Humphries for the council, prepared a joint report (Exhibit 4) and gave oral evidence. 2. By way of background, Mr Fanning prepared a 'Flora & Fauna Assessment Report' dated May 2015 which accompanied the Class 1 Application (Exhibit D). In section 2 Mr Fanning states that he inspected the site in March, April and May 2015; this involved inspections around the dwelling, in the area of the proposed school, and well as along the fire trail to the north of the dwelling. Precisely what these inspections entailed is not described anywhere. In section 5.1 of that report Mr Fanning states that: The area likely to be affected by the proposed dog training school at Duffys Forest (being an artificial lawn and gardens) [assumed to mean exotic] is of no relevance for native fauna species – other than a few highly adaptable urban and peri-urban species (such as the Australian Magpie and Masked Lapwing). Doubtless, it is possible that individuals of a number of native fauna species living in the adjacent sandstone woodland could utilise the relevant part of the subject site, on occasions at least. Terrestrial species (wallabies, echidnas, bandicoots and some reptiles) could access the relevant area on occasions. However, any such use of the area to be affected by the dog training school; would be extremely limited, and no such species could be dependent on that part of the subject site. Further there is no evidence for any such use at present. In particular, there are no bandicoot diggings in the lawn or garden beds on the subject site – which suggests the Southern Brown Bandicoot (even if it is present in the vicinity) does not utilise those areas at present. 1. The initial report focuses on the use of the site as a training school with little comment on the potential impact of the permanent housing of the applicants' dogs. The report includes contemporaneous photographs of the site which show chicken wire attached to the inside of the fence surrounding the lawn. 2. Following the termination of a conciliation conference held pursuant to s 34 of the Land and Environment Court Act 1979 before another Commissioner, the applicants were granted leave to amend their application. Attached to the Notice of Motion prepared in support of the amendments is a Supplementary Assessment Report dated June 2016 prepared by Mr Fanning. It appears that Mr Fanning visited the site on three further occasions in March and April 2016 and carried out visual inspections [how, and of what are not recorded]. 3. The Supplementary Report includes a concept plan for a fauna-proof fence and addresses the keeping of the applicants' dogs on the site. It also includes the results of an 'Infrared Camera Audit' prepared at Mr Fanning's request by Lesryk Environmental. Four cameras were installed at points along the northern side of the fence that surrounds the lawn and an adjoining rougher section of land to the west. The cameras remained in place for eleven days; the date, time and species recorded by each camera are included in the Lesryk Report. No threatened species were observed; apart from some common bird species, other fauna included Swamp Wallabies, Eastern Grey Kangaroos and a Rattus sp (whether it was an exotic or native species of rat could not be determined). 4. The Supplementary report includes a further consideration of Rosenberg's Goanna. On p4 of the Supplementary Report, Mr Fanning states: Whilst it is possible that individuals of Rosenberg's Goanna could occur in the immediate vicinity of the subject site, the area to be utilised for the dog training school does not represent relevant habitat for this species (other perhaps than areas used by the resident chickens). Goannas have been recorded regularly by the residents – raiding the chicken coops. Whilst the goannas sighted have predominantly been the common Lace Monitor, it is possible that individuals of Rosenberg's Goanna could also have been involved. Goannas have not been recorded by the residents in the lawn area proposed for the dog training school and used by the resident dogs. There are no suitable or relevant resources or habitat features for Rosenberg's Goanna present within any areas to be affected by the proposal. 1. Mr Fanning's recommendations on p. 9 of the Supplementary Report are: 6 RECOMMENDATIONS In order to ensure that the maintenance of dogs on the subject site and the operation of the dog training school at Yanada Road Duffy's Forest, the following measures are recommended to be implemented as Conditions of Consent, pursuant to a Section 88B covenant placed on the title of the land. The installation of a 'fauna exclusion fence' (as detailed in Chapter 3.2 above) around the maintained lawn area where the dog training school activities are to be held. The installation of additional cables along the upper part of the fence – to prevent dogs escaping from the lawn area. The imposition of a requirement that resident dogs be under supervision at all times when in the yard, and otherwise be kept indoors. The imposition of a requirement that resident dogs be kept indoors between dusk and dawn (other than on dog-training evenings) – so as to minimise the possibility of interactions between the dogs and native wildlife. [Evening sessions are no longer proposed.] 1. In their Joint Report, the parties' ecologists agree that: * The proposed fauna-proof fencing illustrated in Attachment C to the joint report is highly likely to prevent individuals of the relevant threatened fauna species accessing the proposed dog training area of the site. [This is a modified version of the fence referred to in the Supplementary Report.] * The management of the dog training school is highly likely to prevent any direct adverse interactions between dogs and any native wildlife within the residential component of the site as the dogs will be under the control of their owners at all times, and confined within a securely fenced area. * The management of the landowners' dogs on the site is highly likely to avoid or minimise any direct impacts on native wildlife within the residential component of the site and will have minimal impact on native wildlife in the bushland component of the site. 1. The key areas of disagreement are: * The extent to which the proposed dog training facility will affect native wildlife that will no longer be able to access the residential component on the site; and * The extent to which the proposed dog training facility will dilute the effectiveness of the s 88B instrument. 1. Mr Fanning takes issue with the specific nature of the wording in council's first contention in regards to whether certain threatened species will use the habitat resources within the landscaped areas of the site or may provide essential resources at times of drought for local populations. He considers that these assertions are speculative and not proven. While Mr Fanning accepts that earlier studies, done by others, identified a number of threatened species on the site, his more recent surveys, using infrared cameras installed around the fenced lawn and visual inspections undertaken on a number of occasions, did not reveal the presence of any threatened fauna on the site in the vicinity of the proposed training area. Mr Fanning considers that the current fence around the lawn, which has 30-40mm diameter chicken wire on the bottom half of the fence, is probably preventing ground-dwelling fauna such as bandicoots and goannas from accessing the lawn area. 2. Mr Humphries has assumed the contention to be in general terms as it is known that the Southern Brown Bandicoot, other bandicoot species, Rosenberg's Goanna, and to a lesser extent Eastern Pygmy Possums, will use habitat resources in landscaped gardens where urban areas adjoin bushland. In oral evidence, he gave examples of bandicoots using lawn areas at Manly headland. In Mr Humphries' opinion, the species are known or are likely to occur on or adjacent to the site, as identified in earlier studies, and they may also use the habitat resources of the landscaped areas, from time to time, if access is not restricted. Under cross-examination he accepted that the available natural resource is extensive. 3. Mr Fanning opines that the application now before the Court is quite different to the development application for the subdivision. In his view, the requirement in the subdivision judgment was predicated on a fence that would enable fauna such as bandicoots and goannas to access the designated inner protection zones. Mr Fanning states that the current proposal is essentially opposite as it seeks to locate the dog training area within a fence designed to prevent access to part of the inner protection zone. Therefore, in his opinion, the underlying premise of the statement in [106] of Project Venture is no longer relevant. Mr Fanning maintains that the fauna-proof fence has overcome the concerns of the Court in the previous matter. In Mr Fanning's view, the very specific nature of the proposal, that is the establishment of a dog training school within a fauna-proof fence, is unlikely to create an unsatisfactory precedent, as the likelihood of another application for a dog training school is low. Given the very small area of land affected by the fence, he considers the diminution of the s 88B instrument will be minimal. Mr Fanning disagrees that approval of the proposal would place an unreasonable burden on council staff. 4. While he agrees that the current application is quite different to the subdivision, Mr Humphries states that it nonetheless relates to part of the original site. As such, the current proposal to exclude access by fauna to part of the inner protection area is therefore specifically contrary to the principle which led to the requirement for fauna friendly fencing to allow access to those areas. In Mr Humphries opinion, the conservation values of the area, including the sensitivity of any threatened species to the impacts of cats and dogs, have not changed. In his opinion, if approved, the proposal would lead to a diminution of the conservation effect of the s 88B instrument, albeit a relatively small effect, as it would permit the permanent presence of dogs on the site. Mr Humphries considers this would see an increase in other development applications that would seek to permit the keeping of dogs/ other domestic animals. Further, in his view, while there is a current overall prohibition of the keeping of dogs on site, allowing conditional approval of the proposal would place an unnecessary burden on council in enforcing the provisions of any consent. Under cross-examination Mr Humphries maintained his opinion that it would as the proposal introduces a complexity of days, times and so on when dogs would be on the site; however, he agreed that if the operational plan were strictly applied the additional burden would not be significant. 5. The experts essentially agree that if the proposed dog obedience and training school is operated strictly in accordance with the proposed operational procedures, conflict between the land uses within the zone, and between the adjoining zone, will be minimised. 6. The experts agree that the proposed fauna-proof fence will provide an effective barrier between the proposed training facility and wildlife. The proposed fence comprises Zincalume® corrugated metal sheeting buried 200mm into the ground, rising to a height of 500mm above ground, and screwed onto the outside of the existing timber post and rail fence. On top of the metal sheeting is a 90mm diameter PVC pipe cut in half and fixed to a rail. Above the pipe will be strands of high tension steel cables fixed at 75mm spacings. The existing gates are to be replaced with self-closing gates of a similar construction to the fence and set on a 100mm thick concrete slab with devices to prevent access to wildlife. 7. In cross-examination, the ecologists were asked to consider the type and location of fencing identified in the VMP, the Moore judgement, the conditions and the s 88B instrument and the likely reasons for this requirement. Some time was spent considering the areas marked 'D' Positive Covenant – Inner Protection Area, Asset Protection Zone on the Registered Deposited Plan of the subdivision (DP1132323) and the relevant items in the s 88B instrument, specifically items 6.1, 13(a), and 16(a): 6.1 The Grantor of each Lot Burdened in respect of such Lot must not erect or permit to be erected a fence of any type on any boundary or on any part of a lot outside the area designated 'D' in the Plan. 13 The Grantor of each Lot Burdened in respect of such Lot must as to Asset Protection Zones designated in this Plan (a) Except as provided in (b) below fence the boundary of the Asset Protection Zone. The fence must conform to the specification for bush protection fencing consisting of 1150mm high galvanised hinge joint fencing (8/115/30)(Stocktite or similar) fixed to fence with 3x strands 3.15mm galvanised fencing wire. Posts are to be capped…..The installation of this fence to delineate the Asset Protection zone is to be supervised by the Appointed Project Ecologist. 16 The Grantor of each Lot Burdened must not within such Lot: (a) Erect or permit any dividing fence with any other Lot nor allow same to remain on the Lot Burdened if same restricts fauna passing and/or if the same: i. Is continuous and is constructed of materials other than post and three wire strand or timber post and rail, or ii. Is discontinuous and lengths of solid material exceed 75 metres. 1. Mr Fanning stated that he didn't know whether the hinge joint mesh fence between the asset protection/ inner protection zone and the conservation areas was intended to provide wildlife with unfettered access to the whole site, and in particular around the house. Mr Fanning considers that there is nothing in the judgment or conditions that would seem to preclude other fences within the APZ/IPZ or area marked 'D' or that wildlife must be able to move through the site. Mr Humphries' interpretation is that any fence within area 'D' should be permeable for the intended smaller species of wildlife, not impermeable. Submissions 1. Mr Lancaster SC for the council submits that the circumstances leading to the imposition of Condition 68 of the subdivision consent and the subsequent s 88B instrument prohibiting dogs and other domestic animals from the site have not changed. Mr Lancaster asserts that the applicants have not provided sufficient evidence that threatened species don't exist on or around the site; thus the concerns expressed in the Conacher Travers' reports remain. He contends that as such, no inroads should be made into the integrity of the restrictions that apply to this site. Mr Lancaster submits that while the application is for a dog training facility, a significant component of the operation will involve the full-time keeping of three dogs, only two of which are used for training purposes for only up to nine hours per week. He contends that approving the development application will allow dogs on the site on a permanent basis which will inevitably invite further applications for the keeping of dogs on other similarly affected properties. Council's concern is that this will be the first 'domino' to fall with the potential to start an incremental diminution of the s 88B instrument; something council strongly resists. 2. He argues it is a relevant to determine the character of the use. Mr Lancaster notes that while this is a new commercial use of the site, the applicants are not dependent on it for income – it is effectively a hobby. Council's position is that the nature of the proposed use does not warrant amending the s 88B instrument, a primary purpose of which was the protection of wildlife. 3. Mr Lancaster presses the issues raised in the Threatened Species Management Plan prepared for the subdivision by Conacher Travers. He submits that this document repeatedly notes the intent to exclude cats and dogs from the subdivision on the basis of the possible impacts of domestic animals on the identified threatened species in the vicinity of the site including the Red-crowned Toadlet, Rosenberg's Goanna, Powerful Owl and the Southern Brown Bandicoot. Further, in regards to access to areas of modified habitat around the site, Mr Lancaster notes the comments in the TSMP that the modification of the subdivision site by about 43% required for the creation of an APZ "will not sterilise this area as potential habitat for this species [Rosenberg's Goanna]. Rosenberg's Goannas are known to tolerate modified habitats, and a number of recorded sightings have from within semi-urban areas (NPWS 2003). The retention of large amounts of unaltered vegetation in the site, as well as the modified habitat within the asset protection zones will maintain large amounts of potential habitat for this species. In particular the retention of habitat for prey species such as small reptiles and small mammals will protect foraging habitat for this species. The maintenance of vegetated connectivity throughout the site and into the National Park will allow for continued movement throughout the local area for this species. 4. Mr Lancaster asserts that the Management Actions/ Strategies in the TSMP specifically envisage the type of fencing to be used to enable movement through the area as well as the repeated the need to exclude cats and dogs from the subdivision. He maintains that the clear intent of the findings by Moore C in Project Venture at [102] to [106], and the consequential conditions of consent, was to prohibit the keeping of cats, dogs and other domestic animals and to enable threatened fauna of a certain size free access to all areas subsequently marked 'D' on the deposited plan and therefore the creation of fauna-proof enclosures is contrary to that intent. 5. Mr Lancaster notes that for Lot 7, each area marked 'D' includes the whole of lot 7 to the east of the conservation area marked 'C'; however, there are many individual areas marked 'D' including the fire trail, the areas either side of the fire trail, and the proposed building footprint also marked 'G'. He contends that the wording in item 6.1 of the s 88B instrument prevents the erection of any fence outside of any area marked 'D' and thus has the effect of preventing the erection of any internal fence. Mr Lancaster argues that if the applicants' interpretation prevailed, this would justify any type of fence, including a barrier, between the fire trail and any other part of the Lot, which would be contrary to the requirement to have a fence at the edge of the APZ to allow access to wildlife. He also asserts that item 16(a) requires any dividing fence on the burdened lot to allow fauna to pass through and thus the notion that an internal barrier fence could be erected does not make sense. 6. In regards to the keeping of dogs in fenced areas and the conflict between zones, Mr Lancaster asserts that the Court is entitled to bring ordinary knowledge that dogs bark and yelp and as such are likely to discourage wildlife from the site. He submits that when the Court permitted the subdivision, it found the appropriate response was to find a balance between the interests of people who wished to live near bushland and the welfare of wildlife. 7. In considering Mr Humphries' and council's concern that approval of this application will set a precedent for the keeping of dogs on similarly affected lots, in citing Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75 at [28] and [29], Mr Lancaster maintains that the proposal is objectionable in itself because it entails the keeping of up to three resident dogs on the site which is completely counter to the intent and substance of the s 88 instrument. He contends there is direct evidence there will be another application by another owner of a nearby allotment seeking to modify the restriction on the keeping of dogs, that is, there is a real likelihood of further applications. In support of this submission, Mr Lancaster presses the pro forma letter which focuses on the desires of the applicants to be able to have a pet dog, as well as other submissions made in support of keeping dogs where no mention is made of the proposal to set up a dog training establishment. 8. Council's position is that should I approve the development application, draft condition of consent 2(f) should be imposed; this requires the dogs to be kept inside during the day if no one is at home to supervise them. Mr Lancaster also notes the agreement that the Operating Manual needs amending to incorporate the changes agreed during the hearing. 9. However, Mr Lancaster stresses council's position that the development application should be refused. 10. Mr Tomasetti SC for the applicants cites BGP Properties Pty Ltd v Lake Macquarie Council [2004] NSWLEC 399 at [117] where McClellan CJ considers that where land has been zoned generally suitable for a particular purpose, weight must be given to that zoning in the resolution of a dispute as to the appropriate development of any site. He presses cl. 2.3(2) in WLEP which requires the consent authority to have regard to the zone objectives. Mr Tomasetti contends that animal training facilities are permitted in the zone, the proposal does not offend the zone objectives, and therefore in itself, the proposed use is not objectionable. 11. Concerning the contention that the proposal will create conflict between land uses on adjoining zones, Mr Tomasetti notes that Waratah Park is similarly zoned RU4, and in any event, the fencing around that property does not facilitate the movement of wildlife. Further, he contends that the adjoining zone is RE1 – Public Recreation and not E2 – Environmental Conservation, and thus capable of use for the many purposes provided in the description of the zone in WLEP. 12. In regards to the ecological concerns raised by council, Mr Tomasetti submits that stated focus of the VMP is on Development Exclusion Areas (DEAs) nominated to conserve threatened species habitat inclusive of the community lot which was dedicated to the council [the adjoining RE1 zoned land] and the within lot vegetation outside of the asset protection zone. He notes these DEAs are identified in the Schedules included in the VMP as Conservation Areas, and the specifications for works relate to those conservation areas; the exclusion fence separates the conservation areas from all other parts of the lots to be modified as part of the subdivision development. Mr Tomasetti presses the available connectivity through these conservation areas to the National Park. 13. Mr Tomasetti draws the Court's attention to the points of agreement in the ecologists' joint report, particularly the agreement that the proposal is highly likely to prevent any direct adverse interactions between wildlife and dogs because the dogs will be under the control of their owners at all times and will be confined within a fauna-proof enclosure. Further, he notes Mr Humphries' statements that any diminution of the s 88B instrument would be small and that any further development applications seeking to modify the instrument would have to be assessed on their merits. In addition, he submits that Mr Humphries accepts that if the proposed dog obedience and agility training school is operated strictly in accordance with the proposed operational manual then any conflicts between and within the zones would be minimal and unlikely to be adverse. 14. Mr Tomasetti presses Mr Fanning's interpretation of the s 88B instrument in regards to fencing; specifically, area 'D' includes everything within the whole of the eastern part of the site as defined in the definition in item 1.6 of the instrument. Further, Mr Tomasetti maintains that while the instrument contemplates a dividing fence between lots it says nothing about internal fencing within the areas marked 'D'; as such enclosures for a pool, or chickens or for some other purpose could be constructed. Regarding the subdivision decision, Mr Tomasetti argues that the Commissioner did not turn his mind to future dwellings. 15. In respect of any likely precedent, Mr Tomasetti asserts that the proposal is for a commercial animal training establishment, which is a permissible use in the zone; it is not a sham or simply a proposal to keep dogs. Mr Tomasetti stresses that the trained dogs are a part of the business. As the s 88B instrument applies to all seven lots in the subdivision, he submits it would be surprising if another owner had the same expertise in animal behaviour as demonstrated by Mrs Andre. In citing Goldin at [28] and several other judgments in which Goldin is referenced, Mr Tomasetti maintains that the proposal is not objectionable in itself and the probability that there will be further applications for dog training facilities on similarly constrained lots is remote; therefore, the council's concerns about precent are unfounded. 16. Mr Tomasetti notes the agreed conditions of consent including the restrictions on the number of dogs that may be kept on the site, the keeping of a register of training sessions, the requirement that the applicant is to notify council within seven days of the dog training facility ceasing to operate, and the limiting of the development consent to the period the facility is operated by Mrs Kirsten Andre. He presses the applicants' concerns that the proposed condition requiring the dogs to be kept inside during the day when no one is home to supervise them is unreasonable on animal welfare grounds as the dogs are used to toileting outside. 17. In conclusion, Mr Tomasetti submits that the Court should approve the application on its merits. Consideration and findings 1. The proposal for a dog obedience and agility training facility must be assessed in accordance with relevant matters under s 79C(1) of the EPA Act. 2. The key RU4 zone objective raised by council is whether the proposal minimises conflict between zones. Given the fact that the adjoining RE1 land does not have general public access and is identified in the VMP and other documents as a conservation area, the primary RE1 zone objective is likely to be "to protect, manage and restore public land that is of ecological, scientific, cultural or aesthetic value". The ecologists agree that the proposal minimises conflict within and between zones. I am satisfied that the proposal meets the other zone objectives reproduced in [31] of this judgment. No parts of WDCP are raised. 3. While there is a degree of presumption that development consent will be granted to use a site for a purpose for which it was zoned, as noted in BGP Properties at [117], the environmental impact must be acceptable (BGP at [118]). Therefore the other relevant s 79C(1) considerations are the likely environmental impact of the proposed development and the suitability of the site (s 79C1(b) and (c)). 4. I agree with council that there is no evidence to suggest that those threatened species identified in earlier studies are not present in the vicinity – especially within the land set aside for conservation purposes. I am not surprised that Mr Fanning did not find any evidence of the activity of bandicoots or other fauna, apart from some common species of birds, within the lawn area proposed to be used for dog training purposes. It is clear from the photographs in his May 2015 report that the area was, and still is, enclosed by relatively fine chicken wire which in all likelihood prevents those animals from accessing the lawn. While no evidence was adduced as to when the current netting was installed, it may to have been installed by the previous owner or from early 2014 when the applicants purchased their property so that their dogs would be contained. I also note Mr Fanning's comment in section 4.2 Potential Indirect Impacts on p 6 of the Supplementary Report that "Doubtless, dog odours and dog barking (and other activities) on the subject site at Duffys Forest could serve to displace some native fauna, or prevent some species from approaching the lawn area." While he goes on to say that "Conversely, ten native species were recorded using the bare area immediately outside the fenced lawn area in May 2016 [infrared camera survey], including mammals such as the Eastern Grey Kangaroo and Swamp Wallaby and a number of native birds. These species have not been deterred from approaching the lawn area – despite the permanent presence of the resident's dogs on the subject site". Absent the fence, it is also reasonable to assume that the wildlife would use the lawn area. With the exception of two day-time recordings of the Eastern Grey Kangaroo, all the mammals were recorded between dusk and dawn when the dogs were presumably inside. 5. Apart from the infrared survey report carried out by others, neither Mr Fanning's May 2015 Flora and Fauna Assessment Report or the June 2016 Supplementary Report detail the nature, duration, timing and precise location of the six investigations Mr Fanning states he carried out. It is therefore impossible to determine whether they were sufficient for the purpose of determining the likely impact of removing that portion of the site for foraging by threatened species. I also note the comments made in the Supplementary Report that the applicants have seen goannas around the chicken shed, which adjoins the lawn, on many occasions, which Mr Fanning accepts may have included Rosenberg's Goannas. However, that said, with the benefit of the site inspection, it would appear that more of the area identified as APZ/ 'D' on the deposited plans and to the north of the fire has been left as intact bushland with the majority of vegetation cleared to the south of it. While not put to the ecologists, this may afford wildlife greater protection in the uncleared parts but make wildlife potentially more vulnerable to predation in the clearer areas nearer the lawn and thus have an indirect deterrent effect. 6. While Mr Humphries maintained his position that, absent dogs on the site, some fauna could use the lawn area, he acknowledged that the available natural resource for wildlife is extensive. 7. Moore C's judgment in Project Venture clearly adopts the recommendations in the Conacher Travers' reports, particularly the SIS and TSMP, to exclude dogs and other domestic animals from the subdivision. Those particular documents encompass more than the parts of the site set aside for conservation purposes. The VMP appropriately considers development exclusion areas set aside to conserve threatened species' habitat. Paragraph [106] of that judgment is unambiguous in the finding that the APZ be separated from the conservation areas by a type of fence that would permit the smaller threatened species access to all of those areas ultimately marked 'D' on the deposited plans. 8. In regards to submissions made concerning areas marked 'D' on the deposited plan, my interpretation of the relevant documents is that the type of fencing around the APZ was to provide access to all parts of the APZ. In item 13 of the s 88B instrument, the Asset Protection Zone is referred to in the singular. The fact that the plans identify several elements of the APZ as 'D' is, in my view, simply an alternative to cross hatching the entire area but also allows for various elements to be identified for multiple purposes. For example, the fire trail is coded 'D', 'F' and 'K'. At best, the instrument is silent on whether any barrier style fencing is permitted that may be associated with the future use of the subdivided lots for residential development within the area marked 'D'. Although, on the face of it, it would appear that the intent of any fencing was to permit general access to wildlife across and within lots. 9. Notwithstanding their different opinions as to whether or not the subdivision consent intended to enable ongoing free access for small species to the whole site, the experts agreed that the proposed wildlife proof fence, in conjunction with the proposed management of the dog obedience and agility training school, is highly likely to prevent any adverse interactions between dogs and any native wildlife within the residential component of the site. The 1.2m high fence was deemed a sufficient height for the current breed of demonstrator dogs and the fact that no novice dogs would be accepted for training [this height may be insufficient for larger dogs being trained for other purposes]. The experts agreed that in the particular circumstances of the site, larger wildlife species such as the Eastern Grey Kangaroo would be unlikely to have a sufficient 'run' in order to clear the fence from the outside. 10. Although the development application is for a very specific use of the land, I share council's concerns that the approval of this development application could create a general impression in the community, for those people who own land similarly constrained by s 88B instruments, that the keeping of dogs is generally acceptable in circumstances where fauna-proof fences can be installed. This concern is substantiated by the fact that so many people signed the letter (reproduced in [38]) supporting the intent by the applicants to submit to council a development application to remove the restriction on the keeping of dogs contained in Condition 38 of the subdivision consent. In each of the three paragraphs of that brief letter, the emphasis is on "having a family dog", "having family dogs as afforded to all other families within the area", and "having a family pet as enjoyed by other residences within the district". While training is mentioned in the second paragraph it is by way of almost incidental reference to the applicants' "love of training their dogs". There is no reference to any proposal for the establishment of a dog agility and obedience school. 11. The applicants' position is that the keeping of dogs is incidental to a dog obedience and training school where the demonstrator dogs are highly trained and which must be under direct supervision when outside and otherwise must be confined inside. Dogs visiting the site for the purpose of training must be under the strict control of their handlers. An alternative view, given the very limited number of hours, up to 9 hours out of 168 hours per week where two of the dogs will be used for training purposes, is that the establishment of a dog agility and obedience training school is incidental to the keeping of dogs on the site. That is a maximum of 5% of the hours in the week will be used for the purpose of the operation of an animal training establishment. The third dog is not required for any operational purposes. 12. Given this alternative scenario, I share the council's concerns about the diminution of the s 88 instrument in the light of the special environmental values of Duffy Forest. As expressed in the documents prepared for the subdivision application, the presence of dogs can deter native wildlife in many ways, including by barking and odours. 13. Notwithstanding these concerns, and after careful consideration of the proposal, being for a use permitted within the zone, I am satisfied that consent can be granted but with strict conditions imposed that reflect the ecological significance of the site and which relate to the particular proposed use of the site for a dog obedience and agility training facility by a nominated operator. It is not an endorsement of the general keeping of dogs on the site. Conditions 1. During the hearing draft without prejudice conditions were discussed. The only objection raised was in regards to draft condition 2(f) which states: (f) No dogs are allowed on the grassed inner protection area adjacent to the dwelling unless there is an adult at the premises supervising the dogs. 1. The applicants object to this condition on the basis that it is unkind to the dogs as they have been trained to toilet on the lawn. 2. Given the indirect ways that dogs may deter wildlife I am satisfied that this condition should be imposed. As the dogs are past and present highly trained demonstrator dogs, owned by an experienced trainer, it should not be too difficult to train the dogs to use an appropriate litter tray or mat when locked inside. Indeed, Mr Fanning includes this requirement as one of his recommendations on p.9 of his Supplementary Report (see [53]). 3. In further considering this matter I formed the opinion that should the proposal be approved, and given the environmental sensitivity of the site, additional conditions might be required. Six potential conditions were put to the parties for comment. The questions put to the parties were: 1. As this is a new commercial enterprise, whether a trial period of 12-18 months should be imposed, after which the applicants may seek to extend the period of operation. 2. Whether a 'hot wire' should be installed on the inside of the fence in order to deter larger dogs from jumping over or leaning on the fence. 3. As animal training enterprises as defined in WLEP are intended for commercial purposes whether any consent is dependent on the applicants demonstrating the usual documentation associated with a commercial enterprise, the very least being a registered business name, business account and insurance policy. 4. Proposed condition 2(g) states that the applicants are to keep a register of training sessions to be provided to council on request. Condition 2(h) requires the applicants to give the council seven days' notice of ceasing to operate. There is no indication of the time threshold considered to be a cessation of operation. An alternative may be the requirement to submit a report to council every three months, to include the details in 2(g) – as well as the names of the applicants' dogs which are involved in the training. If no training occurs in a 3- month period, the business is deemed to cease to operate. 5. Whether on cessation of the operation, the fauna-proof fence is to be removed. 6. On the meaning of draft condition 2(i). Does this mean that any development consent granted for the use of the land for a dog obedience and agility training facility, a form of animal training establishment, would be surrendered when Mrs Andre ceased to operate any approved dog obedience and agility training facility? 1. The hearing resumed on 31 August for oral submissions. The solicitors for the parties, Mr Palmer for the applicants and Mr Patterson for the council, put forward their respective clients' positions. They also provided the Court with a further amended version of the draft conditions of consent which clarified some of the agreed conditions considered by the parties during the hearing, as well as an updated Operating Manual. Potential trial period 1. The council endorses this condition because of the novel use of the site, there being no similar enterprises in the vicinity that it may be compared with, and the ecological significance of the area. Council considers a trial period of 18 months to be reasonable which would enable the applicant to establish her business. 2. The applicants' position is that the imposition of a trial period is onerous and expensive. In citing Zhang v Canterbury City Council (2001) 115 LGERA 373 at 389, the applicants submit that a trial period for a development may be appropriate in circumstances where the full implications of a development are not known at the time of the determination in order that adverse effects can be curtailed by the withholding of consent for further extension. In this case, the applicants maintain that the ecologists' evidence is that there will be no adverse impacts arising from the development, the fence is high enough to prevent escape, and the training facility will be operated in accordance with the Operating Manual. However, the applicants would not oppose the imposition of a trial period if it meant that consent is granted. 3. I agree with the council that given that the proposed use is not a common form of development, and on the basis of the documented reasons for the initial imposition of the s 88B instrument preventing the keeping of dogs on the site, a trial period of 18 months is to be imposed. While the applicants contend that there is no evidence to suggest that there will be any adverse impact from the proposed use on wildlife, I refer to my consideration of Mr Fanning's evidence in paragraphs [84] – [85]. A true picture of the potential use of the site by threatened species and other native fauna species could not be ascertained because of the mesh fence around the lawn and the presence of the applicants' dogs; something Mr Fanning himself admits. That is, the full implications of the proposed development cannot be sufficiently determined. If the proposed dog agility training facility operates without any adverse impact, and the applicants have sufficient evidence to support that, the filing of a further development application for assessment and determination by council should not be too onerous. 4. The condition could be in the following terms, however it is up to the parties to agree on the final wording: Condition X 18 months trial period – the area contained within the wildlife exclusion fence identified on the Site Plan attached to the Joint Experts Report prepared by the parties' ecologists dated 2 August 2016 is only approved to be used for a dog obedience and agility training facility operated only by Ms Kirsten Andre for a trial period of 18 months only. This use shall cease after a period of 18 months from the date of this development consent. It is recommended that a further development application be lodged with Council for assessment and determination at least 3 months prior to this expiry date. Hot wire 1. The council endorses the imposition of a condition requiring a hot wire/ electrified wire on the inside of the top rail of the fence and is content if it is only activated during training sessions. The applicants submit that it is unnecessary, potentially unkind to dogs, and would only be effective if the animal was in contact with the earth (it would not stop a jumping dog). 2. I am satisfied that this should not be imposed at this stage but it may be open to council to impose such a condition for any future application should the need arise. Commercial purposes 1. The proposal before the Court is for a commercial use permissible in the RU4 zone in WLEP (see definition of 'animal boarding or training establishment in [33]). While Mrs Andre stated that she intends to charge for the training sessions, she has not registered a business name although she has been involved in the training of dogs elsewhere. 2. Council endorses, and the applicants do not oppose, the imposition of a condition of consent requiring the provision of evidence that the facility operates as a business. Details of registered business name, ABN and any requisite insurance are to be provided to council with the first register of training sessions. Ceasing to operate, reporting and surrender of consent 1. The applicant has proposed, and council agrees, that should consent be granted, conditions of consent requiring the keeping of a register of training sessions to be provided to council on request, as well as seven days' notice being provided to the council that the dog training facility has ceased to operate. As the consent is proposed to be limited to the operation of the facility by Mrs Andre, once she has ceased operations, no dogs are to be permitted on the site. As noted in [97], there was some uncertainty around these conditions in the draft discussed during the hearing. 2. The applicants submit that quarterly reporting to the council is onerous for both the applicant and the council. They also contend that it also limits the ability of Mrs Andre to take extended holidays, or to visit aging parents in South Africa, or to allow for other contingencies such as illness of trainer/ demonstrator dog/s. 3. The applicants press the provisions in s 107(3) and s 109(3) of the EPA Act which deal with existing and continuing uses of land which are deemed to have ceased if the use has not been carried out for a period of 12 months. Council contends that as this is a new use, these provisions do not apply. I concur with council that this is a new use and not an existing or continuing use. 4. The parties prepared an agreed additional condition 2(j) which details the circumstances under which the dog obedience/ agility training facility shall be deemed to have ceased to operate. It includes provisions for extended holidays, inclement weather and medical/veterinary reasons. The operator is to notify the council within three months of the commencement of operation of the facility and is to provide a copy of the training register. 5. Draft condition 2(g) provides that a register of training sessions shall be maintained and produced to council on request and that a copy be attached to the annual report required by the s 88B instrument. In addition to the items required to be included on the register, I consider that the name of the demonstrator dog be included as well. Although I do not think that the provision of the register to the council every three months is onerous on either the applicants or the council, I am satisfied that the condition as agreed by the parties does not preclude more frequent reporting. 6. In regards to the surrender of the consent on cessation of the use of the site for the proposed use, the council presses the inclusion of such a condition and the applicants oppose it. As I have determined that a trial period be imposed, that is, the consent is time-limited, it may be unnecessary at this stage to impose this additional condition (see suggested wording in [102]). Removal of the fauna-proof fence 1. The applicants do not oppose the imposition of such a condition but consider it unnecessary. 2. I am satisfied that it should be removed once the dog obedience and agility training facility has ceased to operate as its purpose is no longer necessary and it may create an assumption on behalf of future owners/ occupiers that the general keeping of dogs on the site is acceptable. Directions 1. Having concluded that the proposal is capable of conditional approval, the parties are directed to prepare an agreed set of conditions which reflect the findings in this judgment as well draft orders for the incorporation of amendments to the s 88B instrument for Lot 7. The draft conditions and orders are to be filed electronically in word.docx format (no headers, footers or tracked changes) by close of business 19 September 2016. The applicants are to provide a clean copy of the Operating Manual (pdf format) with no tracked changes. The Manual should be reformatted to include numbered sections and paragraphs for ease of cross-referencing. Conclusions and orders 1. The parties have provided the conditions and other documents as directed on 12 September 2016. I am satisfied that the conditions of consent in Annexure 'A' accurately reflect my findings, in particular the imposition of a trial period and clarification of when the operation is deemed to cease. 2. As a consequence, the Orders of the Court are: 1. The Appeal is upheld. 2. Development Application DA 2015/0498 for a Dog Training School, including Three Demonstrator Dogs to be Retained Permanently On Site at Lot 7 DP 1132323 (1 Yanada Road, Duffys Forest), is approved subject to the conditions at Annexure A. 3. S 88B instrument: 1. Paragraph (2) of the Terms of the Restriction on the use of land eighthly referred to in DP 1132323 (Paragraph 6.2 of the Instrument Setting out Terms of Easements), as it applies to Lot 7 DP 1132323, is to be modified by inserting after the words "Rural Land Protection Act 1998" the words "except as expressly permitted by the development consent to Development Application DA 2015/0498 issued by the Land and Environment Court in proceedings no 2016/00158138". 2. The Council is to take all reasonable steps necessary to prepare and execute any dealing or supporting document necessary to give effect to the s88B instrument. 1. The exhibits except 1 and D are returned. _______________________ Judy Fakes Commissioner of the Court 158138.16 Annexure A (38.3 KB, pdf) 158138.16 Fence plans (554 KB, pdf) 158138.16 Training Manual (167 KB, pdf) ********** 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: 17 October 2016