Shears v Parramatta City Council

92. Questions of characterisation involve subjective views as to matters of fact and degree. Shire of Perth v O'Keefe (1963) 110 CLR 529. I surveyed the authorities on characterisation of DAs in University of Sydney v South Sydney Council (1998) 97 LGERA 186 (at 200-209) and concluded (at 214-215 omitting case references): What is required is not "precise cataloguing" (Kitto J in O'Keefe), but a "detailed examination of the facts" to construe the purpose " broadly " and " liberally " without "confining the user to precise activity" in the town planning context. (Kirby P in Boyts Radio). The Court must examine the "character, extent and other features" of the proposal (O'Donnell) and determine its "appropriate genus " (Kirby P in Boyts Radio and Steedman) and whether other aspects of the proposal might best and/or fairly be regarded as species of that genus (Pryor Park). The law does not require me to "force fit" the proposal into any of the models defined in Foodbarn, O'Donnell or Pryor Park. Questions of fact and degree are "inescapably involved" and characterisations will always be "partly impressionistic" (Penrith). Where more than one use is involved in a proposal the primary consideration is the relationship between/among them, beyond their shared use of the subject site (Blakemore). 32 Mr Gough submits that the proposed use of the lofts for breeding and racing pigeons is not ancillary on the basis that the number of pigeons and the intensity of the use result in it being more than a hobby or keeping of pets that are part of the ordinary use of a site for a dwelling house.

The applicant's submission 33 Mr McKee submits that the proposed development falls under the exemption in the definition of 'animal establishment' being a 'building or place used (in conjunction with a dwelling) for the keeping of pets. It is therefore not prohibited. 34 The proposed loft is a building or place which is to be constructed on a site that is used for a dwelling in which the applicant will live and train the racing pigeons as his hobby. 'In conjunction with' is not defined in LEP 2001 but can be understood from its normal meaning. The Oxford Illustrated Dictionary defines 'in conjunction' as 'together (with). The definition of 'animal establishment' therefore requires that the separate dwelling be used together with the proposed building or place. The facts of the proposal clearly meet this requirement. 35 'The keeping of pets' is not defined in LEP 2001 or the Model Provisions. Mr McKee submits that the proposed use constitutes the 'keeping of pets' within its ordinary meaning and understanding. 36 Further, Mr McKee submits that the case law referred to in council's submissions is distinguishable on the facts of the proposal before the Court. The cases rely on different definitions of 'animal establishment' and the conclusions as to whether the use conforms to that definition, and as to whether it is ancillary to the dominant use on the property, are not applicable to the facts of this application. 37 In particular, Mr McKee referred to Mitchell and Litonia where both definitions of 'animal establishment' included an element of intensity of use and both were prosecutions for the carrying out of an 'animal establishment' without consent and defended on the basis that the use was ancillary and did not require consent. 38 Mr McKee's submission in relation to Whittlesea is that it is a Victorian case which operates under different legislative and local planning schemes. The keeping of pigeons was found to fall within the definition of 'agriculture group' and therefore not be ancillary. The case referred to two other cases where the Tribunal found that the keeping of pigeons for racing purposes was a hobby and the pigeon loft for that purpose was an appurtenance of the dwelling and therefore did not require consent. In those cases the lofts were to accommodate 50-60 racing pigeons.

Findings 39 In the 2A Residential zone, all development is prohibited unless it is permissible with or without consent. The key question before the Court is whether the proposed use can be characterised as any of the uses which are permissible within the zone, if so it is permissible, if not, it is an innominate use and is prohibited. If the proposed use is not characterised as a permissible use it is not then necessary to categorise it into a form of development defined in LEP 2001, such as 'animal establishment', as any use not included as permissible, is prohibited. 40 The proposal is not exempt development and is therefore not permissible without consent. 'Dwelling houses' are permissible with consent and this is the current use of the site. The pigeon lofts would be permissible if characteristic or ancillary to the use of the site as a dwelling house. 41 'Animal establishments' are not a permissible use in the zone. Whether the proposal falls within the exemption to the definition is relevant only in so far as it gives guidance in determining whether the use is part of the ordinary use anticipated as part of a dwelling house. The exemption states that a building or place used (in conjunction with a dwelling) for the keeping of pets is not defined as an 'animal establishment. The corollary is that such an activity would be a residential in nature and part of or an ancillary use to a dwelling house. 42 The question of whether the character, extent and features of the proposed use are those of a dwelling house involve subjective views as to matters of fact and degree. The particular facts of the case are that the proposal occurs on a suburban allotment of some 790 sqm. The site adjoins seven residential properties, with the lofts being within 1.5m to 3m of three of the adjoining properties. The proposal is 78sqm in size and accommodates up to 200 pigeons, the majority are required to be exercised which involves flying over other properties. 43 In answering this question I am more persuaded by the submissions of Mr Gough. The particular character, extent and features of the use in this context are not characteristic of a dwelling house or ancillary to such a use. The cases referred to by Mr Gough, clearly indicate that the intensity of use is relevant in determining whether a use is characteristic or ancillary to a dwelling house use. The care of domestic pets and hobbies are an ordinary part of a residential use. However, there is a limit to the number of pets or the intensity of use which, if crossed, change the dynamic to beyond that which is reasonable and anticipated in the zone. 44 I accept that Mr Shears will care for his pigeons and that pigeon racing is his hobby and undertaken on a non commercial basis. I also accept that due to the nature of pigeon racing there is a minimum number of birds that are required to be breeders and racers due to the high attrition rate. Mr Shears estimated that at the start of the season he would need about 120 racing pigeons but by the end of the season this would have reduced to about 60. 45 The proposal requires a great deal of care and management on the part of Mr Shears including exercising the birds and cleaning the lofts. Mr Shear has submitted a Management Plan, which outlines the procedures to be followed. While this may ensure that the health of the pigeons and adjoining residents, it indicates the extent of the work involved and the separate nature of the use. 46 Both Pearlman CJ and Stein J distinguish between the number of animals and the intensity of use in determining whether a use is ancillary. In Mitchell, Stein J held that the keeping of ten dogs was a 'significant number' and not ancillary to the dwelling house use. Similarly in Whittlesea the Tribunal distinguished between the keeping of up to 200 pigeons and a lesser number. 47 While Mitchell and Litonia dealt with enforcement proceedings their findings are relevant to the facts of this case. I find that the number of pigeons is a 'significant number' and due to the number of pigeons and the size of the lofts is beyond the keeping of birds in an aviary or as pets or as a hobby. It becomes a separate use of the site which is not listed in the land use table as a permissible use and is not characteristic or ancillary to the dwelling house use and is therefore not permissible in the zone. On this basis the application must fail Other issues 48 For completeness I will briefly deal with the merits of the case. 49 In relation to noise, I accept Mr Cooper's evidence that the proposal will meet the criteria of background plus 5dB(A) and although audible will have an acceptable impact on adjoining properties. 50 No other expert evidence was provided. The residents raised concerns about the impact of the proposal on their amenity. While the Management Plan, if implemented, will minimise these impacts, I accept the residents' concerns that the number of birds within 1.5 m of their outdoor eating area will adversely impact on their amenity. I accept that the loft will be cleaned on a daily basis, however, the existing lofts (exhibit 6) indicate that there are still bird feathers and litter from the pigeons which is uncharacteristic of a residential environment in close proximity to outdoor eating an play areas. 51 On Mr Shear's evidence pigeons attract vermin and other animals. While he will control these there is still the concern that they will spread onto other sites. 52 The proposal involves the removal of trees, and while the applicant has agreed to replacement planting, the loss of particularly the Crepe Myrtle, which is visible from the street and the tree canopy of the Chinese Elm, will impact on the amenity of the neighbourhood. 53 For these reasons the proposal is not consistent with the objectives of the 2A Residential zone, particularly (a) to enhance the amenity and characteristics of the established residential area.

2. The development application (DA 759/2006) for the construction of a stock and race loft for the housing and training of racing pigeons at 9 Todd Circle, Old Toongabbie is refused.

3. The exhibit, except exhibits 3 and E, may be returned

      Annelise Tuor
      Commissioner of the Court

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