Everson v Council of the Shire of Beaudesert [1992] QPEC 22 (1992) QPLR 129

) ( ) IN THE PLANNING AND ENVIRONMENT COURT HELD AT BRISBANE QUEENSLAND Plaint No. 199 of 1991 BETWEEN: L.A. AND A.J. EVERSON Appellants THE COUNCIL OF THE SHIRE OF BEAUDESERT Respondent REASONS FOR JUDGMENT O'SULLIVAN D.C.J. MARCH 1992 This is an appeal by Mr & Mrs Everson against the refusal of the Council of the Shire of Beaudesert for town planning consent to erect buildings and use land for a hobby kennel for up to 10 dogs at 431-443 Thompson Road, Greenbank. The land is described as Lot 28 on Registered Plan 141725 Parish of Stapylton, and contains 2.163 hectares. The subject land has a road frontage of approximately 136 metres and a depth of 159 metres. The Application:- A site plan was submitted with the application. The location of the proposed kennel structure was subsequently changed, following advice from Mr Russell Brown, an Acoustical Engineer with Vipac Engineers & Scientists Ltd., who was engaged by the Appellants. The kennel structure was re-located to the northwest, closer to the residence of Mr & Mrs Lamb, and further away from the -- 1 of 21 -- 2 residence of Mr & Mrs Ellis which is located to the east of the Everson residence. Mr & Mrs Everson presently have 7 Pyrenean Mountain dogs on the subject land, housed in temporary accommodation at the back of their house and elsewhere in the back yard. The current use is unlawful. It was generally conceded that the present arrangements are unsatisfactory. The grounds of refusal:- The grounds of refusal given by the Council were as follows: "(a) The subject land is within 1500 metres of five (5) existing approved kennels and Council, pursuant to Clause 2. 3 of its Kennel Policy, is of the opinion that approval of a further kennel would create an undesirable concentration which would be detrimental to the present and prospective amenity of the neighbourhood. ( b) The si ting of the proposed kennels does not meet the minimum requirements in relation to setback from dwellings on land other than the subject site as required by Clause 2.2 of Council's Kennel Policy. (c) An objection has been lodged which raises grounds based on noise and general adverse effects on the health and lifestyle of an adjoining residential occupation. In the opinion of the council this objection is able to be substantiated and would be compounded if approval were granted. (d) The kennel, if approved at this location, would be likely to be incompatible with prospective development of Portions 44 and 45 Thompson Road, being land opposite the site and designated for future rural residential uses under the provisions of the Council's Strategic Plan." Reason for refusal (a) refers to Clause 2.3 of the Kennel Policy, which is as follows: -- 2 of 21 -- 3 "Kennel applications will be assessed on a basis of not creating large concentrations of kennels in otherwise kennel free areas. In exercising its discretion in this regard the Council will take into consideration the category of kennels and number of dogs in existence at the date of application within a radial distance of fifteen hundred (1500) metres." Reason for refusal (b) refers to Clause 2.2 of the Kennel Policy, which is as follows: "It is considered undesirable that kennels or day runs shall be located within one hundred and fifty (150) metres of any dwelling in existence at the date of application, other than that on the same land." Reason for refusal ( c) refers to an Objection. This is the Objection of Mr & Mrs Ellis, who live next door to the Eversons. In that Objection they mentioned Mr Ellis' s post-traumatic stress syndrome, and the noise problem which already exists in their immediate neighbourhood. Respondent's Kennel Policy: The Respondent adopted a Kennel Policy on 7 April, 1987. This sets out requirements for the keeping of more than two dogs on an allotment, as permitted by By-Law 2 of Chapter XLV. The weight which ought to be given to a policy has frequently been canvassed in the Local Government Court. In Jongejan & anor. v Redland Shire Council (1986) QPLR 74, 77 the Court said:" ... a policy, as a planning tool, should not be applied rigidly. Whether or not a discretion should go in favour of an -- 3 of 21 -- ) 4 application in any sense should be judged against the background of the town planning considerations which justify the policy's existence rather than the strict letter of the policy itself." Kennel Policy Clause 2.3 This Clause has been quoted earlier. It does not define "large concentrations" or "otherwise kennel free areas." Appendix 5 to the report of Mr Rodger, Contract Planning Officer with the Respondent, shows 5 kennels within the 1500 metre radius referred to in clause 2.3. Mr Rodger prepared a Plan of the 1500 metre radius, which shows kennels on land owned by Mrs Midgley (5 dogs), Mr and Mrs Sayce, (5 dogs), Mr and Mrs Waterhouse (10 dogs) , Mr and Mrs Gregory and B. M. Reye. Mr Rodger was concerned that two of the kennels are in close proximity to the subject ) site being 300 metres and 350 metres, and that there is only one intervening block between the subject site and another kennel and if the proposal were granted there would be a "sandwich" effect with resultant detriment to amenity and lifestyle. This ) "sandwich" effect was also a concern of Mr and Mrs McDonald, proprietors of Lot 17, Cheviot Street which is behind the subject land. Mr Ryter, the Town Planning Consultant engaged by the Appellants, considered that as the proposal involves an increase from 5 dogs to 1 O dogs, this could not be considered to create a large concentration of kennels. He referred to a note on the Council -- 4 of 21 -- 5 file for an application on the Waterhouse land which stated "Will not create a concentration of kennels - additional five (5) dogs will have little impact." He also considered that the area cannot currently be described as "kennel free." Mr Brown did not consider that the accumulation of kennels will be a significant factor in the noise assessment - it would depend on the intermittency and duration of the noise. Mr Simpson, an Acoustic Engineer with WBM Pty. Ltd. who was engaged by the Respondent, did not include the noise from the Midgley kennel in his noise assessment. Kennel Policy Clause 2.2: This clause states that it is considered undesirable that kennels or day runs be located within 150 metres of any dwelling. The proposed location of the kennel is 75-80 metres from the Lamb residence, and thus does not comply with Clause 2.2. Mr Ryter considered that this requirement ought to be relaxed, in view of the proposed landscaping. He also referred to the fact that the Council had relaxed the requirement on at least one other site, namely the Midgley site. Kennel Policy Clause 1.2: -- 5 of 21 -- ) 6 Mr Rodger also mentioned Clause 1. 2, although this was not specifically included in the reasons for refusal. It states: "All sites shall first contain a caretaker's or manager's residence which shall be sited as close as practicable to-the kennels. Within ten (10) metres is considered ideal." With the re-location of the kennel structure, it is now 63 metres from the Everson residence, and thus clearly does not comply with ) Clause 1.2. The re-location was in order to move the structure away from the Ellis residence. Thus, there has been a "trade- off", between the noise created by closeness to the Ellis residence and potential reduction in supervision by being further away from the Everson residence. Mr Rodger said that the reason for Clause 1 . 2 is supervision and to prompt early remedial ) measures in the event of disturbance. Mrs Everson gave evidence that she works at night, from 10 pm to 8.00/8.30 am and sleeps ) during part of the day. Mr Everson works from 7.00 am to 5.30 pm. Mr Brown considered that the ability to quickly quieten the dogs is a daytime requirement. However, the overall exercise is a matter of reaching "a workable compromise between minimising the distance and minimising the noise levels." I am satisfied on the evidence as a whole that the Clause 1.2 requirement ought to be relaxed. -- 6 of 21 -- 7 Kennel Policy Clause 2.1: This Clause refers to kennels, runs and exercise yards having a setback minima of 200 metres from the road frontage and 15 metres from any rear or side boundary. The proposed kennel is located 105 metres from the road frontage, and thus does not comply with Clause 2.1. Mr Ryter considered that this requirement ought to be relaxed, in view of the topography of the land, existing vegetation in the road reserve and proposed landscaping ( a Landscaping Plan was tendered in evidence) . I accept this evidence. Kennel Policy Clause 1.6: "All animals on site shall be supervised by an adult on a full time basis." Mrs Everson gave evidence of her experience with this particular breed of dog since 1983 and her success with them (all but one of them have been Australian champions) , and her involvement with the Canine Control Council, Brisbane Pet & Hobby Expo, and Pet Awareness week. Mrs Everson described the temperament of the dogs. She denied the allegations made by Mr & Mrs Ellis concerning the frequency of the dogs' barking. Whilst I accept that she has considerable experience and competence with the dogs, I find that whilst she was giving evidence, at times she had a tendency to rationalize -- 7 of 21 -- 8 when specific barking problems and noise incidents were put to her. She may fail to appreciate the impact of her dogs' barking on Mr & Mrs Ellis. Overall; however, I am satisfied that she is able to supervise the dogs adequately. Noise Emissions and Control: Clause 8 of the Kennel Policy deals with "Noise emission and control." This includes the requirement that: "Kennel operators must be able to demonstrate the ability to quickly quieten the dogs when necessary .... " It states that "The sound levels from ) the dogs are deemed to be acceptable if the followin~ criteria are satisfied." It then refers to a median from dogs of not more than 10 d.b. above the median from other sources, from 7.00 am to 8.00 pm and a median from dogs not more than 5 d.b. above the median from other sources, from 8.00 pm to 7.00 am. It then sets out measurement procedures. ) Mr Brown was engaged by the Solicitors of the Appellant to ) prepare a report as to whether the proposed kennel development complied with this kennel policy criteria. He concluded that subject to the re-location of the dogs as shown on his Figure 1 (away from the Ellis residence, more towards the Lamb residence), and that the dogs be kept in the kennel between 8.00 pm and 7.00 am with all windows, doors and hatches closed and the kennel being constructed as shown in his Figures 2 and 3 and as outlined in section 7.0 of his report, then the kennel policy noise level criteria would be met. -- 8 of 21 -- 9 Mr Simpson considered that the acceptable noise levels are much lower that Mr Brown's. The results and methodology of Mr Brown and Mr Simpson were comparable in most respects al though Mr Simpson filtered out the cicada noise. Initially Mr Simpson did not make any allowance for the earth mound but in cross- examination he agreed with a 5 decibel allowance for the attenuation from a 1.5 metre mound (the proposed mound is only 1 metre). Mr Simpson was critical of the noise criteria in the Respondent's kennel policy, and preferred the methods used in Australian Standard 1055 and "various State Government guidelines." I consider that he gave insufficient weight to the fact that the Respondent has adopted the kennel policy and thus the noise annoyance criteria contained in that policy. Noise and general adverse effects: The third reason for refusal referred to grounds based on noise and general adverse effects on the health and lifestyle of an adjoining residential occupation which the Council considered would be compounded if approval were granted. Noise amenity: Mr & Mrs Ellis object to the proposal on mainly noise grounds. They described the problems they are presently experiencing with the Everson dogs coming right up to their fence and barking. On -- 9 of 21 -- 10 some days it is on and off all day, on other days not at all. They do not consider that the Eversons always try to stop their dogs from barking. Their evidence can probably be summed up by Mrs Ellis' s statement: "I am thoroughly sick of seven dogs' barking." Mr & Mrs Ellis have made no formal complaints to the Respondent concerning their problems with the Everson dogs' barking. Mrs ) Ellis explained that this was because she was involved with sick children. ) ) By-Law 12 of Chapter XLV sets out the procedure to be followed by neighbours who wish to complain about dogs' barking. Mrs Ellis took a video of the Everson dogs over a period of approximately one week, using a video camera provided by the Respondent and with some tuition from Mr Rodger. I have viewed the two videos totalling approximately 2 hours, and a 10 minute edited version of them. Mr & Mrs Ellis took photographs showing the Everson dogs' barking. I have viewed these photographs and the commentary under them. I have read the Ellis commentary which accompanied the videos and the Everson reply. I find that the videos and the photographs show that the Everson dogs have caused a problem from time to time. Although the videos and photographs are of some assistance to me, I find that they may not be totally reliable as a faithful chronicle of the dogs' normal behaviour as there may be an element of provocativeness or teasing on the part of Mr & Mrs Ellis, and some allowance must -- 10 of 21 -- 1 1 be made for editing and lack of random selection. Mr Ellis suffers from post-traumatic stress syndrome, and finds dogs' barking effects his nerves. There are no dogs on the Ellis land. Mr and Mrs Ellis are not convinced that the proposal will reduce the barking, although they are not concerned so much about the barking at night. They consider that the dogs will still be too noisy. They do not accept that the proposed mound and landscaping will make a difference. Mr & Mrs Lamb differed in their views: Mrs Lamb does not object to the proposal, while Mr Lamb now does. They have two dogs on their land. Mrs Lamb has no objection to the proposal so long as the landscaping goes ahead to stop her dogs from barking. She said that the existing Everson dogs do not bark loudly, or often. Mr Lamb did not object to the original proposal. He was made aware of the new location only a few days ago, and he considered that it is unacceptable. He did not know what noise 10 dogs will make 62 metres from his boundary. He considered that they will cause him a lot more trouble than the existing dogs. Mr and Mrs McDonald each provided a written statement of their evidence. Their land is presently vacant, but they intend to build on it when they return to Brisbane from Alice Springs in the near future. They are aware of the right to two dogs on -- 11 of 21 -- 12 allotments, but are opposed to the Everson proposal for 10 dogs. They considered that it is out of keeping with the rural aspect of the area, and they are particularly concerned with the sandwiching of their residence between two dog kennels. Mr and Mrs Goodman live immediately behind the Eversons. Mrs Goodman gave evidence that she very rarely hears the dogs' barking, and that the Eversons look after them very well. They cannot see the dogs over their back fence. She and her husband are not concerned about the proposal. In assessing the evidence of the Eversons' neighbours, and in arriving at an assessment of impact on amenity, recourse must be had to reasonable expectations of amenity. The test is object- ive, and regard must be had to the provisions of the relevant Town Planning Scheme, including the permitted and permissible uses. As the Court said in Van Amste1 & anor. v Albert Shire Council & anor (1986) QPLR 404, 407 objections must be judged against the background of the Town Planning Scheme and its expressed and inferred intent for development in the area, and whether the proposed use is one of a kind which should reasonably be anticipated in the Zone. In D.P. Thoroughbred Pty Ltd. v Albert Shire Council & ors. (1986) QPLR 273 the Court recognized that landowners must be taken to consider the possibility that a nearby owner may embark upon not just those pursuits which are permitted as of right but also those which the Council may permit in an appropriate case. -- 12 of 21 -- 13 In this context I consider that it is relevant to look at the number of kennels which already exist in the locality, and the as-of-right entitlements to dogs. Mr Brown and Mr Simpson differed as to the appropriate noise level criteria. Mr Brown used the Respondent's kennel policy noise criteria, supplemented by other sources. He acknowledged that this criteria is "unlike others", and that Australian Standard 1055 is a much more widely used method of assessment. Mr Simpson used Australian Standard 1055, supplemented by other sources. What criteria is used makes a considerable difference to the acceptable noise level limits. Mr Brown measured the median of other noise sources at 56 decibels, and added 10 decibels in accordance with the kennel policy criteria to arrive at an acceptable level of 66 decibels. Mr Simpson applied the methodology of Appendix A of Part 2 of Australian Standard 1055. He obtained a LA max level of 53 decibels. He considered that this level will be exceeded at all the nearby residences during the day. Mr Brown and Mr Simpson agreed that if the kennel policy's acceptable noise level criteria is used, the proposal will comply during the day and the night. If the Australian Standard' s criteria is used, then according to Mr Simpson the proposal will comply during the night but not during the day and according to Mr Brown's supplementary report it will comply during the night and during the day. -- 13 of 21 -- 14 In arriving at his opinion, Mr Brown took into account the kennel policy noise criteria, Guidelines contained in a paper by Kamst and Eddington (which referred to an acceptable night-time level for dogs of 45-48 decibels), the noise already existing in the environment, and various subjective factors. He considered that the environment already produces equal and higher levels of noise than those likely to be generated by the proposal, and that if Mr Simpson's criteria were to be adopted then those noises would be unacceptable because they would exceed the 5 decibel allowance. Whilst I found his evidence to be of some assistance, I consider that Mr Simpson gave insufficient weight to the noise which already exists in the area. Where inconsistencies occur or differences arise, I prefer the evidence of Mr Brown to that of Mr Simpson. I accept the evidence of Mr Brown that the proposal will not result in unacceptable noise levels. However, one specific matter is of special concern to me for three reasons: (a) Mr Brown based his assessment on an assumption that Mr & Mrs Lamb did not object to the proposal and in his oral evidence Mr Brown specifically acknowledged the importance of this assumption. Mr Lamb gave oral evidence during the hearing which made it clear that he does object; (b) The Lamb residence is now the closest residence to the proposed kennel; (c) The proposal does not comply with Clause 2.2 of the Respondent's Kennel Policy. -- 14 of 21 -- 15 I accordingly consider that it is important that maximum noise attenuation be achieved for the Lamb residence. I therefore consider that so far as the Lamb residence is concerned there ought to be a specific condition of approval that noise levels not exceed those recommended by Mr Brown. Because of past tensions between the Eversons and the Ellis's, I consider it appropriate for a similar condition to also apply to the Ellis's residence. In order to ensure uniformity, there should also be similar conditions for the Goodmans' residence and the McDonalds' residence. There did not seem to be any doubts about the acceptability of the proposal so far as night-time noise is concerned. Mr Brown and Mr Simpson agreed that the sound isolation performance of the proposed kennel building would result in attenuation in the range 14-20 dBA. On the evidence as a whole, I am satisfied that the proposed development, if approved and subject to reasonable and relevant conditions, (including the conditions I have indicated) would not be likely to significantly adversely affect the existing amenity in the locality. If the proposed development is in accordance with Mr Brown's specific proposals and design, and the Landscape Plan (with a change in the proposed mound to 1 . 5 metres) , I consider that it will not create a noise problem to such a significant degree as would warrant refusal of the application. The requirements of the By-Laws and Licensing Conditions are -- 15 of 21 -- 16 matters which are relevant to the neighbours who remain concerned about the proposal. The administration and enforcement of these requirements are matters for the Local Authority, which if necessary can be enforced by others, by various means available at law. Incompatibility with proposed development: The fourth ground of refusal related to the incompatibility with prospective development of Portions 44 and 45 Thompson Road, opposite the subject land and designated for future rural residential use. Very little evidence was tendered in support of this ground. In his report Mr Rodger referred to future amenity of the prospective rural residential uses, and the expectation that road traffic movements will increase. Mr Ryter considered it likely that the Respondent will be obliged to approve kennels under appropriate circumstances on allotments created through the development of these Portions. Mr Rodger did not disagree with this. This land is zoned Rural. In the Table of Zones, hobby kennels for dogs other than greyhounds are purposes for which buildings or other structures may be erected or used or for which land may be used without consent of the Council for up to 5 dogs on land more than 2 hectares in area, and 6-10 dogs on land more than -- 16 of 21 -- 17 four hectares in area. On the evidence as a whole, I am satisfied that the proposed development will produce a sufficient attenuation of noise so that it is unlikely to adversely affect the future development of this area to an unacceptable degree. Town Planning provisions: The subject land is within the Rural Residential A Zone under the Respondent's Town Planning Scheme. Under the Table of Zones, "hobby kennels (for up to five dogs other than greyhounds on land more than two hectares in area)" and "hobby kennels (for six to ten dogs other than greyhound dogs on land more than four hectares in area)" are purposes for which buildings or other structures may be erected or used or for which land may be used without consent of the Council. Hobby kennels (on land more than two hectares but less than four hectares in area) for more than 5 dogs are purposes for which buildings or other structures may be erected or used or for which land may be used only with the consent of the Council. Mr Ryter prepared a plan which shows the number of dogs permitted by right under the Town Planning Scheme, in an area within a 1500 metre radius of the subject land. The total number of dogs shown is 478, for allotments over 2.0 hectares in area. If the Council permits the keeping of 5 dogs by right on allotments that are exactly 2.0 hectares, then the number of dogs increases to 687. -- 17 of 21 -- 18 The Town Planning Scheme does not contain any performance standards relevant to establishing or operating kennels. The Zoning Map for the area shows that the Rural Residential A zoning prevails over much of the immediate locality, although there are some large parcels of Rural zoned land in the vicinity, including land opposite the subject land on the southern side of Thompson Road. The nearby Greenbank Army reserve is zoned Special Purposes, and is located approximately 500 metres to the north of the subject land. The Intent of the Rural Residential A zone is as follows: "It is intended that this Zone will allow for pre- dominantly residential uses on larger rural residential allotments ( lot sizes generally between two and ten ha) . Uses in the Zone, including rural activities, should be generally compatible with the residential nature of the Zone. Many urban services are uneconomic to provide in this Zone." By-Laws: Chapter XLV of the Respondent's By-Laws relates to Dogs, and details various aspects associated with their keeping, including the number of dogs, licensing, control, dangerous dogs, nuisance and offences. By-Law 12 deals with Nuisance. It provides, inter alia, that "Any -- 18 of 21 -- 19 person who is annoyed by the barking or howling of a dog may complain in writing to the Council", and thereafter provides for inspection, notices to abate the nuisance, seizure of dogs, and penalties. The By-law concerning the licensing of dog kennels provides, inter alia, that registration of premises as kennels may be subject to any conditions which the Council may impose and shall be revocable upon breach of any such conditions or for any other cause which the Council deems sufficient. Standard Kennel Licensing Conditions include, inter alia, the following: "1.0 The Council reserves the right to inspect Kennels regularly to maintain standards. Such visits will not be pre-arranged. 1 .1 Kennel Operators are required to operate quiet, orderly and clean Kennels housing healthy, clean and controllable dogs. 1.2 Operators must demonstrate the ability to quickly quieten dogs when necessary ... " The By-laws do not include performance standards or guidance as to the circumstances under which the Council would be likely to licence more than 2 dogs on a property. The Preamble to the Kennel Policy Statement, which is page 2 of the Kennel Policy, states, inter alia: "2. Generally under the Town Plan the consent of the Council is required before dogs are introduced to the site. This is not granted automatically and a formal application for such is necessary ..... -- 19 of 21 -- 20 3. It is further required under Council's By-laws that a Kennel Licence be issued annually to allow the Kennels to operate and to set·and maintain standards of operation." Mr Ryter considered that licences are essentially operational controls, and should be issued subject to the imposition of appropriate conditions where use is permitted by right, or consent has been obtained. By virtue of Section 31 (27) (ix) of the Local Government Act (1936) (as amended), a By-law which has been approved by the Governor in Council and published in the Gazette thereupon has the same force and effect as if it were enacted in that Act. Reasonable and relevant conditions: I am satisfied that the Appellant has established that the application should be approved, subject to reasonable and relevant conditions. These conditions should include conditions relating to maximum noise levels as indicated in this judgment. It is not entirely clear from the Plans attached to Mr Brown's report whether the kennel and runs will be fenced off, so that the dogs cannot obtain access to other parts of the Everson land. I consider that this should be clearly shown in the proposed plan of development. I consider that for noise attenuation reasons, an appropriate amendment to the Landscape Plan would be to include a 1.5 metre -- 20 of 21 -- 21 earth mound rather than the 1.0 metre mound presently shown. I propose to adjourn the hearing of the appeal to allow the parties to discuss reasonable and relevant conditions. The appeal is adjourned to ................. to permit the Respondent to notify the Appellants in writing within 21 days from the date hereof of the conditions it proposes to impose. The Appellants shall within 7 days of the receipt of such notification, notify the Respondent of the conditions, if any, with which they do not agree. -- 21 of 21 --