Rogers v Clarence Valley Council

Land and Environment Court (NSW)|2012-08-21|Before: Pepper J

The Court Makes Orders for the Implementation of an Amended Noise Management Plan 1This judgment contains the reasons of the Court for the making of orders to implement an Amended Noise Management Plan ("ANMP"). 2The background to the making of these orders is lengthy and somewhat of a dog's breakfast but, as will become apparent, requires setting out in detail. It is as follows. 3The matter originally came before the Court as a challenge filed in Class 2 of the Court's jurisdiction by the applicant, Ms Sally Rogers, to a noise prevention notice issued by the respondent, Clarence Valley Council ("the council"), under s 96 of the Protection of the Environment Operations Act 1997 ("the POEOA"). 4The noise prevention notice had been issued by the council due to numerous complaints by neighbouring properties about the noise generated from barking dogs housed and cared for by Ms Rogers on her property at a no-kill animal shelter known as "Happy Paws Haven" ("Happy Paws"). The noise is said to be particularly problematic at night. 5Happy Paws is a not for profit operation. The time, financial and emotional commitment dedicated by Ms Rogers to the shelter and the welfare of the dogs housed in it is admirable and she is to be commended for it. 6Initially the central issue in the proceedings was the emission of dog noise from Mrs Rogers' premises where she lawfully operates Happy Paws (the lawfulness of the use was established in Rogers v Clarence Valley Council [2011] NSWLEC 134; (2011) 185 LGERA 37). It is, of course, somewhat trite to note that dogs bark (especially anxious dogs) and that an animal shelter housing predominantly dogs (there is a cattery also present) will generate noise. The question the subject of the appeal was whether the noise was above acceptable limits under the POEOA. 7The matter was listed to be heard over two days in Grafton on 20 and 21 August 2012. The hearing included a site visit and, as stated above, evidence was taken from a number of objectors. The proceedings did not, however, conclude in the time allocated to hear it. 8In light of the fact that the matter was not finalised, on 21 August 2012 the Court ordered that it be mediated. The orders of the Court on that day were as follows ("the 21 August 2012 orders"): The Court orders that: 1. the Prevention Notice issued on 7 June 2012 under s 96 of the Protection of Environment Operations Act 1997 is stayed pending the determination of the appeal in these proceedings, subject to the following conditions: (a) the applicant is to have no more than 32 adult dogs (that is, dogs older than six months old) on the property the subject of the proceedings at any one time; and (b) the council is permitted to assist the applicant in the rehousing of the dogs; (2) the parties are to mediate this matter in good faith. Such mediation is to occur on or before 5 October 2012, before a Commissioner of the Court at Grafton. The parties are to advise the Associate to Pepper J by 5.00pm Thursday, 25 August 2012, of a range of suitable dates for the mediation; (3) the matter is stood over for further directions and the allocation of further hearing dates (the proceedings are part-heard before Pepper J) to 12 October 2012 at 4.00pm before Pepper J (by telephone); and (4) liberty to restore on 3 working days' notice. 9Order 1 was crafted pursuant to information given by Ms Rogers as to the number of dogs currently housed on her property. It was to ensure that no additional dogs were brought onto the property by her, thereby exacerbating the issue the subject of the appeal, namely, the noise generated by the dogs. What was not clear from the framing of the order was whether the total number of dogs stipulated in the order included Ms Rogers' personal pets. At that time the Court was informed that Ms Rogers had four dogs. The importance of this ambiguity is discussed further below. 10The orders were varied on 4 October 2012 to accommodate a later time period within which the mediation was to take place. Order 1 of the 21 August 2012 order was, however, confirmed by order 2 of the 4 October 2012 orders. 11The mediation was successful and the parties entered into consent orders reflecting both the position agreed to by them at the mediation and that subsequently refined before the Court during a protracted directions hearing. The purpose of the directions hearing was to clarify ambiguous language in the version of the orders drafted immediately after the mediation. 12As a consequence, on 29 October 2012 consent orders reflecting the agreement of the parties were entered into ("the consent orders"). These orders are annexed to this judgment at annexure 'A'. 13The gravamen of the orders was to the effect that the parties would submit to a process in which the Court would appoint two experts, namely, an acoustic expert (order 3) and an animal management or behaviour expert (order 9), to draft a noise management plan ("NMP") (order 13). Each party was ordered to submit in writing, together with curriculum vitae, the names of three acoustic and three animal behaviour experts and the Court was to appoint an expert in each field based on its assessment of the information before it. 14Crucially, it was a term of the consent orders that the parties agreed to be bound by the findings and recommendations of the experts as contained in the NMP (order 14). 15On 9 November 2012 the Court, pursuant to the process described above, appointed Mr Neil Gross as the acoustic expert and Dr Gaille Perry as the animal behaviour management expert. 16On 30 November 2012 Mr Gross handed down his report, which included noise attenuation recommendations ("the First Gross Acoustic Report"). 17On 21 December 2012 Dr Perry, having taken into account the First Gross Acoustic Report, handed down her report, together with a NMP containing recommendations to abate the noise emanating from Happy Paws. In the Introduction to the NMP, Dr Perry made the following statement: I conferred with Neil Gross, the Acoustic Expert on 10 December. Mr Gross informed me that his brief did not cover providing recommendations or in fact conferring with me at all and the conversation was brief. 18The NMP indicated that Ms Rogers could either modify the existing structures at Happy Paws to make them conform to the recommendations or she could construct new animal keeping facilities to achieve compliance. 19The NMP made 24 recommendations as follows: In summary please note the following recommendations

Ms Rogers is Bound by the Terms of the NMP as Amended by the ANMP 56In my opinion the parties, including Ms Rogers, are bound by the terms of the NMP as amended by the ANMP. 57With one exception that I will return to below, I do not intend to make the orders proposed by Ms Rogers because, in addition to the discussion above concerning the substance of Mr Gross' acoustic reports, first, to do so would be, at the risk of repetition, to undermine the consent orders she agreed to on 29 October 2012. Second, as discussed above, neither Mr Gross nor Dr Perry have assumed anything other than a lawful use by Happy Paws of Ms Rogers' land. Third, the concept of "harm" or "likely harm" was not the standard agreed to by the parties in consenting to the orders made on 29 October 2012 and neither expert was required to consider it in providing their reports or in producing either the NMP or the ANMP. In my opinion, it is too late now to unilaterally attempt to introduce and impose a new standard of assessment on the experts. And fourth, Mr Gross has, through the production of his First to Third Acoustic Reports, complied with order 7 of the consent orders and in doing so has, in my opinion, had regard to the appropriate noise levels, criteria and standards. 58In my view, the parties should, especially in light of Ms Rogers' election to modify the existing dog sheds rather than construct a new kennel block, be bound by the ANMP insofar as it does no more than provide further detail on the implementation of the recommendations contained in the NMP, which, to reiterate, the parties agreed to be bound by and which Ms Rogers has expressly stated that she does not seek to set aside. 59Finally and for completeness, it should be observed that Ms Rogers' principal complaint at the hearing on 11 June 2013, namely, the failure of Mr Gross to consult adequately with Dr Perry prior to her producing the NMP, has now been rectified, and the ANMP is, in reality, no more than the byproduct of that remedy. In any event, a comparison of the NMP and the ANMP reveals, without the necessity to set out the detail, that most of the recommendations are the same across the two Plans. If anything, the ANMP imposes a less onerous burden on Ms Rogers than the recommendations contained in the NMP.

Neither the ANMP Nor the NMP Applies to Ms Rogers' Personal Pets 60The exception alluded to above is the recommendations in the NMP and the ANMP concerning the number of dogs that Ms Rogers can keep as personal pets. I accept the submission of Ms Rogers that it was not her intention when she entered into the consent orders that they bind any entity other than Happy Paws. In short, the orders were never intended to extend to her personal pets. A fair reading of the orders is consistent with this position. They are in their terms clearly directed to "Happy Paws Haven", that is to say the shelter, and not to Ms Rogers' residential dwelling or to Ms Rogers herself. Therefore, to the extent that the parties agreed to be bound by the recommendations contained in the NMP (and by extension, the ANMP), this agreement did not extend to recommendations not relating to the operation of Happy Paws, and in particular, recommendations directed to the number of dogs that Ms Rogers may have as personal pets. 61Although the council is concerned that Ms Rogers will attempt to thwart the decrease in the dog population of Happy Paws mandated by the recommendations contained in either the NMP or the ANMP by increasing the number of dogs she keeps as pets, the physical constraints imposed on the size of her residential dwelling and yard will provide a constraint on such activity.

Time for Compliance 62The council's draft orders sought a short time period for compliance by Ms Rogers with their proposed orders. 63It was not a matter of controversy that Ms Rogers was a person of modest means and that Happy Paws is a non-profit shelter relying on the goodwill of volunteers and donations from the community to operate. In these circumstances it is appropriate to afford a degree of latitude to Ms Rogers in the time required by her to give effect to the recommendations contained in the ANMP and this is accordingly reflected in the orders made by the Court below.

Orders 64In conformity with the reasons above, the orders of the Court are therefore as follows: Note: unless otherwise specified, all references to "Happy Paws Haven" or "Happy Paws" in these orders excludes the areas marked "House" and "House Yard" on the site plan annexed to this judgment at 'C' ("the site plan"). (1)no later than six months from the date of these orders: (a)the existing sheds or enclosures, including the three small runs labelled "single run" on the site plan and any enclosure used to house puppies, in which all dogs other than the applicant's, Ms Sally Rogers, personal pets are kept at Happy Paws Haven ("Happy Paws") located at 140 Tindal Road, Eatonsville, New South Wales, must be properly modified for noise attenuation in the manner recommended by the Court appointed acoustic expert, Mr Neil Gross, in Mr Gross' Third Acoustic Report filed 18 July 2013 at page 6 of that Report, and divided in two to allow for individual sleeping quarters for each dog; and (b)the areas described on the site plan as "Dog Yard 1" and "Dog Yard 2" shall be divided into yards 1A, 1B, 2A and 2B in accordance with the site plan by way of solid dividing fences at least 1.8m high, such fences to be located in accordance with the lines marked on the site plan and the size of those areas shall remain at all times in accordance with that which is noted on the site plan; (2)any existing shed or enclosure at Happy Paws which is not noise attenuated in accordance with Mr Gross' recommendations referred to above in order (1)(a) is not to be used for the keeping of dogs; (3)no later than three months from the date of these orders, Ms Rogers must make contact in writing with Clarence Valley Council Animal Pound, the Queensland and New South Wales branches of the RSPCA, the Queensland and New South Wales branches of the Animal Welfare League or any other organisation of her own choosing and offer for re-location to any facility controlled by one or more of those organisations and under their terms, a sufficient number of dogs presently housed at Happy Paws to enable her to comply with these orders; (4)no later than six months from the date of these orders, Ms Rogers must cause to be removed from Happy Paws a sufficient number of dogs and puppies (that is, dogs between eight weeks and three months old) such that only the following numbers remain in the areas prescribed for dog keeping by Dr Gaille Perry in the Amended Noise Management Plan filed 18 July 2013 ("the ANMP") (as those areas are delineated on the site plan): (a)up to two dogs in yard 1A; (b)up to two dogs in yard 2A; (c)up to two dogs in the area described as the "Middle Yard"; (d)up to two dogs (or compatible pups over three months old) in the area described as the "Rear Yard"; and (e)one litter of puppies in the puppy pen, being the two sheds adjacent to the "Kitten Room"; (5)no dogs shall be housed overnight at any time in the areas described as 1B and 2B on the site plan; (6)Ms Rogers must not increase the number of animals kept at Happy Paws beyond the limits set in these orders unless and until a kennel block is constructed at Happy Paws in compliance with the recommendations of Dr Perry in the ANMP; (7)Ms Rogers must notify the respondent, Clarence Valley Council ("the council"), of any proposal to construct further accommodation for dogs at Happy Paws (such as a kennel block or an additional enclosure), and where necessary, any development consent must be obtained prior to the commencement of its construction; (8)dogs must at all times be housed and managed at Happy Paws as follows: (a)alone or in compatible pairs (compatibility should be determined on a leash in a neutral place, with dogs meeting on a walk, then returning and entering the shared housing together, to keep arousal levels manageable); (b)in separate pens constructed in accordance with order 1(a) above; (c)all dogs must be confined to sheds between the hours of 6pm and 7am on weekdays and 6pm and 8am on weekends and public holidays, with each dog in its individual sleeping quarters within those sheds; (d)no Happy Paws dogs may be kept in the areas marked "House" or "House Yard" on the site plan; (e)unless they are being exercised or otherwise attended to, puppies at all times must be kept in the two sheds adjacent to the "Kitten Room" on the site plan; (f)the area described on the site plan as the "Holding Yard", including the three "single run" enclosures noted therein, shall only be used to house dogs for a period of less than a week upon their first arrival to Happy Paws and these areas must not be used for housing dogs to be retained at Happy Paws over the longer term; (g)the behaviour of each dog must be investigated, either during a period in isolation or at a veterinary practice using a validated behaviour assessment test before acceptance. Written records must be kept of this test for all dogs. Dogs that do not pass this assessment must not be accepted for rehoming; (h)written behaviour records, including barking issues and how they are managed, must be kept for each dog; (i)all dogs must be trained to the cue "quiet" using positive reinforcement methods; (j)behaviour modification plans must be written for all dogs showing any undesirable behaviour, and continuing records must be kept to monitor their progress; (k)a daily enrichment program for every dog which includes food, toys, training and enclosure enrichment must be initiated and written records kept so that the manager can ensure that all dogs have appropriate enrichment; (l)all dogs must receive a minimum of 15 to 20 minutes of varied individual attention every day. This should include a walk, some training and a passive activity (grooming, stroking, or massage); (m)Ms Rogers must actively recruit new foster carers to reduce the number of dogs held at the facility; (n)an education program must be initiated for volunteers and foster carers, incorporating information on the care and management of dogs and particularly the care and management of "special needs" dogs; (o)dogs which have been held at the shelter or in foster care for two months must be re-evaluated for suitability for re-homing; and (p)no bitch with unweaned puppies (under eight weeks old) is permitted to be kept at Happy Paws and Ms Rogers must remove any bitch and her unweaned puppies from the property to a foster carer until such time as the puppies are eight weeks or older; (9)no later than six months from the date of these orders Ms Rogers shall have caused to be implemented all measures specified in orders 1 to 8 above, at which time Ms Rogers must notify council in writing as soon as practicable of having done so; (10)within 28 days of the notification referred to above in order (9), Mr Gross must, to the extent he has not already done so in his Third Acoustic Report, comply with order 18 of the consent orders made on 29 October 2012; (11)if within six months from the date of these orders Ms Rogers has not caused to be effected the necessary changes to Happy Paws, including modification of the sheds/enclosures and dividing fences, so as to enable her to house dogs in a manner which is compliant with the orders above, she must as soon as practicable remove a sufficient number of dogs from Happy Paws in order to effect compliance; (12)at the expiry of six months from the date of the making of these orders, dogs other than Ms Rogers' personal dogs are to be registered in the name of "Happy Paws Haven" in accordance with these orders; (13)as soon as practicable at the expiry of nine months from the making of these orders, Ms Rogers must provide in writing to the council evidence of the following: (a)the names and microchip details of all dogs housed at Happy Paws; (b)behaviour records and modification plans for all dogs housed at Happy Paws; and (c)records of behavioural testing for any new dog accepted for housing at Happy Paws; (14)at the expiry of nine months from the date of these orders, the council shall be entitled to inspect the property by appointment only for the purpose of verifying the extent of Ms Rogers' compliance with these orders; (15)order 1(a) of the orders made by Pepper J on 21 August 2012 stating that "the applicant is to have no more than 32 adult dogs (that is, dogs older than six months old) on the property the subject of these proceedings at any one time" is vacated; (16)the parties have liberty to apply on three days' written notice to vary these orders provided sufficient cause is demonstrated; (17)the cost of the First, Second and Third Gross Acoustic Reports, the Noise Management Plan and the ANMP is to be shared equally by the parties and, to the extent that they have not already done so, the parties shall make such payment to Mr Gross and Dr Perry within 30 days, or such further period as the experts may allow, of any invoice being issued by either expert; and (18)the exhibits are to be returned.

Annexure A Annexure B Annexure C 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: 14 November 2013

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