Late Items Agenda of Elected Members' Briefing Session

Late Items Agenda

Item 5 Late Reports

5.1 Proposed Home Business - Category 3 ( Dog Training Activity) and retrospective approval of internal fences and light poles 32 Pennygum Place, Mariginiup

File Ref: DA2017/1038 – 18/64556

Responsible Officer: Director Planning and Sustainability

Disclosure of Interest: Nil

Attachments: 7

Issue

To consider a development application for:

· Home Business - Category 3 (Dog Training Activity); and

· Retrospective approval of internal fences and three light poles.

Applicant	MGA Town Planners
Owner	Jake Kenny & E R Shadbolt
Location	Lot 10 (32) Pennygum Place, Mariginiup
Site Area	1.1059 hectare
DPS 2 Zoning	Special Rural

Background

In January 2017, the City received complaints from the residents of Pennygum Place, Mariginiup about a dog training activity taking place at 32 Pennygum Place (the subject site). Following an investigation by the City’s compliance officers over a period of time, on 9 August 2017, the applicant submitted a development application to commence development of Home Business - Category 3 (Dog Training Activity). The owner has advised that he has ceased operation of this business while the application is being processed and determined.

In addition, the owner, without approval from the City, had constructed internal colorbond fences and erected three light poles each 6.4 metres (m) in height. The applicant has also requested retrospective approval of these works.

Council at its meeting of 6 February 2018 considered the development application and resolved to refer the matter back to Administration for further information and to obtain legal advice regarding the permissibility of the proposal.

Administration sought and obtained legal advice and also met with the landowner and their representative to clarify the nature of the proposal and how it will be conducted.

The report presented to Council at the 6 February 2018 meeting also addressed an existing front boundary fence. Under District Planning Scheme No. 2 (DPS 2) boundary fences are exempt from planning approval and as a result the applicant has agreed to exclude this from the application and for it to be dealt with separately under the provisions of the City’s Fencing Local Law 2016.

Detail

Site

Attachments 1 & 2 contain the location plan and an aerial photograph respectively of the subject site. A dwelling and five sheds, which have been approved by the City, are located on the site. The backyard of the subject site, which the applicant has been using to train the dogs, is turfed and generally devoid of any vegetation.

Attachment 3 is the site plan indicating the dog training area, 1.8 to 2.1-metre high internal colorbond fences, dog housing and three light poles.

Dog Training Activity

It is proposed to train a maximum of three dogs, generally for a period of four days from 9 a.m. to 6 p.m. Therefore every four days there would be up to three new dogs at the site. As the training will be occurring every day of the week, the applicant has requested approval to conduct training seven days a week from 9 a.m. to 6 p.m.

The applicant has provided the following details about the proposal:

· The activity the subject of this application proposes the behavioural training of dogs, usually over a 3-4 day period. Occasionally that training may be for a longer duration, perhaps up to one week, depending upon the behavioural issues.

· The purpose of the training is to train dogs to display appropriate behaviour around humans and other animals, and to obey their owner’s commands.

· The dogs will remain within the kennels throughout the time that they are at the premises, and will be brought out into the training area for one-on-one training with Mr Kenny several times during the hours of 9am and 6pm. It is not intended that Mr Kenny will train more than one dog at a time, nor that his own dogs would be involved in the training.

· The over-night aspect of the proposed development is important. The effectiveness of the training requires the dogs to be taken out of their normal home environment for a period of days. Sending a dog back to its home each night after training serves to ‘un-do’ much of what is taught during the day.

· It should be stressed that to the extent that dogs are housed over-night, it is not for the purpose of boarding for remuneration – that is, the over-night accommodation of the dogs is integral to the training program and therefore the proposed ‘dog training’ land use.

· The dogs would be dropped off by their owners at the commencement of the training and picked up when the training is completed.

· The three kennels used for the overnight accommodation of the dogs for training form part of a larger structure that is used to house the Applicant’s own dogs, and for general domestic storage.

· Each kennel has dimensions of 3 meters x 4.5 meters, making a total area of 40.5 square meters within this building used for the Home Business land use.

The extent of the proposed training area is to be 59.5m2 that is to be shifted and rotated within a 100m² larger area as shown in Attachment 3 and is located about 17 metres from the southern boundary of the subject site.

Attachment 4 is the photo of the dog housing existing on the site.

Two light poles are fixed to a rear shed and the third one to the dwelling as shown on Attachment 3. The light poles are 6.4m in height. The shed is located approximately 72m from the southern boundary and 10m from the northern and eastern boundaries of the subject site. The dwelling is located approximately 60m from the eastern boundary and 40m from the southern boundary of the subject site. The lights on the shed and dwelling are focused in the southerly and easterly direction respectively to light the backyard of the subject site. The light on each pole has 400 watts of power. The applicant has advised that the lights are required mainly for security reasons.

Consultation

Public consultation was undertaken for a period of 21 days from 3 to 24 November 2017 by way of writing to the adjoining and affected residents and placing a notice on the City’s website. At the conclusion of the comment period, 10 submissions were received. Nine objected to the proposal and one supported the proposal. Attachment 5 is a summary of submissions received and Administration’s responses and recommendations.

The main issues raised in the submissions objecting to the proposal are as follows:

· The applicant intends to undertake ‘Internationale Prufungs-Ordung’ (IPO) training of the dogs;

· The brightness of the lights from the light poles spills directly into the adjoining property and blinds motorists on Pennygum Place negotiating the bend just before the subject site; and

· Barking of dogs on the subject site.

A discussion of these main issues is provided in the Comment section.

Comment

The proposal comprises two elements, being the training activity and the housing of the dogs.

Administration formed the view that the dog housing is incidental to the training activity and the legal advice obtained by Administration confirmed that this is an appropriate characterisation of the overall land use. This is an important point because the housing element could arguably fall into the definition of a “kennel” under the DPS 2 which on its own is a use that is not permitted.

Home Business – Category 3 (Dog Training Activity)

The proposed dog training activity is not a use class that is listed in DPS 2, however, can be considered as a Home Business – Category 3 (Dog training activity). An assessment against the criteria applicable to Home Business - Category 3 is provided below:

1. Does not cause injury to or prejudicially affect the amenity of the neighbourhood.

In regard to amenity it is noted that the applicant proposes to conduct dog training from 9 a.m. to 6 p.m. seven days a week. The applicant has advised that when under the supervision of a handler it will be ensured that barking of dogs will be stopped if it occurs. Therefore training of dogs during the appointed time is not likely affect the amenity of the neighbourhood.

2. Entails employment of maximum of two persons.

It is not proposed to employ anyone as the resident of the subject site will be training the dogs.

3. Will not result in traffic difficulties.

It is proposed to train three dogs for four days. It is intended that the three dogs to be trained and the owners two dogs will be boarding on site. Dropping of three external dogs on ‘a’ day and picking them on the fourth day after training is not likely to create traffic difficulties on Pennygum Place. The use will generate six vehicle trips each time dogs are dropped off or collected.

4. Not to occupy an area more than 50m² but Council may approve, subject to community consultation, an area up to 100m² or one third of the floor area of the dwelling whichever is the lesser.

Legal advice received states that the Council does not have the ability to vary the floor area to be used to greater than 100m2.

Administration discussed this matter with the applicant who has clarified that the:

· The three dogs being trained will be boarding at the dog house contained within an approved shed (Attachment 6 is a copy of the approved plan) occupying a combined area of 40.5m² at the rate of 13.5m² per dog. Attachment 7 shows the bays to be occupied by the clients’ dogs and the owner’s two dogs and the storage areas.

· The training area is proposed to be a maximum of 59.5m². It is considered appropriate to allow the trainer to move within the 100m² area shown in Attachment 3 by maintaining the training area to 59.5m². The purpose of moving the area to be used is to prevent the turf deteriorating.

Administration considers that the modified proposal (being reduced from 100m2 of training area) can be supported as it satisfies the intent of limiting the area to be used to 100m2. It is, however, recommended that the following condition be imposed:

The proponent to mark-out the 59.5m² training area within the 100m² shown on Attachment 3 to the satisfaction of Manager, Approval Services.

Application to keep more than 2 dogs

The City’s Dogs Local Law limits the number of dogs to:

· 6 over the age of 3 months and the young of those dogs under that age if the premises are situated on a lot having an area of 4 hectares or more; and

· 2 over the age of 3 months and the young of those dogs under that age if the premises are situated on any other lot.

The total extent of the subject site is 1.1059 hectare. Therefore only 2 dogs are allowed.

As the applicant proposes to keep more than the allowable number of dogs under the Local Law, the applicant has recently submitted an application to seek an exemption under section 26(3) of the Dog Act. This matter is to be dealt with under the provisions of the Dog Act and Local Law by the City.

Submitters’ concerns

Nature of dog training

The submitters are of the view that the proponent is undertaking Internationale Prufungs-Ordung (IPO) training of dogs, which includes training dogs in police work. The applicant has advised that it is not intended to undertake IPO training of the dogs. The following information is provided on the proposed training activities.

1. Teaching dogs basic obedience skills such as "sit", "down", "stay" and "recall";

2. Behavioural modification to stop undesirable behaviours which could include pulling on the lead, jumping up onto people and not coming back when called;

3. Tracking training using scent trails; and

4. Everyday lifestyle training including teaching dogs general manners.

Light spillage

Some submitters have advised that there is spillage of light from the light poles onto their properties.

Light spill under clause 13 of Schedule 3.1 of the Local Government Act 2005 states as follows:

“Take specific measures to prevent —

(a) Artificial light being emitted from the land; or

(b) Natural or artificial light being reflected from something on the land,

creating a nuisance.”

The Local Government Act does not provide the methodology to measure the light spill. However, the City utilises a Lux Meter to measure the amount of light projected onto a neighbouring property.

On 25 July 2017, the City’s compliance officers took light readings at 7:30 p.m. and based on the above standard, recorded that there was no spillage of light on the adjoining properties.

Blinding lights

This issue was discussed with one of the submitters whose residence is located at the northern end of Pennygum Place, which is a cul-de-sac. There is a bend in the road just before the subject site. The submitter advised that while negotiating this bend, the occupants of the car are blinded by the light.

There are three lights on the subject site one attached to the rear of the dwelling and the other two to a shed as indicated in Attachment 3. It is understood from the submitter that the lights on the shed could be affecting their vision. The bend in Pennygum Place is located about 140 metres from the lights on the shed. The light reading taken by the City’s compliance officers recorded that there was no spillage on the adjoining properties about 70 metres away. The bend on Pennygum Place being 140 metres from the lights, it is not likely that the lights could blind the passing motorists.

Barking of the dogs

1. At the exercise area

The applicant has advised that during the training of the dogs, barking will be immediately stopped if it occurs.

2. Dog Housing

The dog housing consists of external brick wall on three sides, metal stud frame on the fourth side and a steel roof with no insulation. The applicant has commissioned a noise assessment. As per the recommendations of the Noise Level Assessment report submitted by the applicant, it is proposed to insulate the brick walls, the roof and the metal stud frame to reduce noise level to 29 decibels (A). This is proposed to be included as a condition of any approval.

Retrospective approvals.

Internal fences

The internal colour bond fences are not noticeable from the road (Pennygum Place). The 2.1-metre high fence marked red in Attachment 3 tapers down to a height of 1.8 metres at the boundary and front fence. The internal fences do not affect the streetscape. Considering a possible 1.8-metre high open front fence as per the provisions of the Fencing Local Law, it is recommended that the internal fences be retrospectively approved.

Light poles

The applicant has sought retrospective approval of the three light poles each with 400 watts of power. Considering the matters discussed above in regard to light spillage, it is recommended that these light poles be approved subject to there being no light spillage onto the neighbouring properties.

Statutory Compliance

This application has been assessed in accordance with the City of Wanneroo’s District Planning Scheme No. 2 and the City’s Fencing Local Law 2016.

Strategic Implications

The proposal aligns with the following objective within the Strategic Community Plan 2017 – 2027:

“1 Society

1.1 Healthy and Active People

1.1.1 Create opportunities that encourage community wellbeing and active and healthy lifestyles”

Risk Management Considerations

There are no existing Strategic or Corporate risks within the City's existing risk registers which relate to the issues contained in this report.

Policy Implications

Nil.

Financial Implications

Nil.

Voting Requirements

Simple Majority

Recommendation

That Council:-

1. Pursuant to Clause 68(2)(b) of the deemed provisions of the City of Wanneroo District Planning Scheme No. 2 APPROVES the development application submitted by MGA Town Planners on behalf of J M Kenny and E R Shadbolt for the proposed Home Business – Category 3 (Dog Training Activity) at Lot 10 (32) Pennygum Place, Mariginiup, subject to the following conditions:

a) Permission is granted to the owners of the property 32 Pennygum Place, Mariginiup to conduct a Home Business – Category 3 (Dog Training Activity) at the above address and only whilst the owners permanently reside at the premises.

b) The maximum number of dogs including the owners’ two dogs is limited to five only.

c) Prior to commencing the Home Business – Category 3 (Dog Training Activity), the dog housing area is to be modified in accordance with the recommendations of the Noise Level Assessment prepared by Herring Storer Acoustics dated June 2017 submitted with the application.

d) Hours of dog training activity shall be between 9.00 a.m. and 6.00 p.m. seven days a week.

e) The Home Business – Category 3 shall occupy an area no greater than 100m² consisting of 59.5m² of training area marked out (either by line marking or corner stakes) within the 100m² shown on Attachment 3 and 40.5m² of the dog housing for a maximum of three dogs as shown on Attachment 7 of this report.

2. Pursuant to Clause 68(2)(a) of the deemed provisions of the City of Wanneroo District Planning Scheme No. 2 APPROVES unconditionally the retrospective development application for the 1.8 to 2.1-metre high internal colour bond fences as shown on the approved plans.

3. Pursuant to Clause 68(2)(a) of the deemed provisions of the City of Wanneroo District Planning Scheme No. 2 APPROVES the three light poles subject to there being no light spillage onto the neighbouring properties.

4. ADVISES the submitters of this decision

Attachments:

1 ⇩.	Attachment 1 - Location Plan	17/394638
2 ⇩.	Attachment 2 - Aerial Photo of the site	17/400495
3 ⇩.	Attachment 3 - Site Plan	17/398218
4 ⇩.	Attachment 4 - Photo of the dog housing	17/426044
5 ⇩.	Attachment 5 - Modified Schedule of submissions and Administration s response	18/75804
6 ⇩.	Attachment 6 - A copy of the approved plan of the 'dog housing'	17/448826
7 ⇩.	Attachment 7 - dog house	18/75508