The activity violated zoning laws and did not qualify as a 'home occupation': court
The Supreme Court of Tasmania upheld a Tribunal decision prohibiting a Perth resident from operating a dog breeding business on her residential property.
The court found that the activity violated zoning laws and did not qualify as a home occupation under the Tasmanian Planning Scheme.
The appellant’s property includes a house, a purpose-built shed for housing dogs, and a fenced outdoor exercise area. Although the Northern Midlands Council issued her a kennel licence permitting her to keep up to 12 dogs for companionship, it prohibited breeding without planning approval. Despite this, the council advised the appellant that her dog breeding activity was a home occupation and exempt from the need for a planning permit. Acting on this advice, the appellant did not seek planning approval.
The appellant's neighbours opposed the operation, citing issues such as barking dogs and increased traffic. In January 2023, they formally alleged that the dog breeding activity contravened the scheme by constituting a prohibited use in the residential zone. When the council declined to act on their concerns, the neighbours brought the matter before the tribunal under the Land Use Planning and Approvals Act 1993.
The tribunal ruled in October 2023 that the dog breeding operation breached the scheme’s zoning provisions. It found that the activity did not meet the criteria for exemption as a home occupation, noting that the use of the land for domestic animal breeding is explicitly prohibited in the residential zone. Furthermore, the tribunal determined that the operation failed to comply with two key conditions for the exemption. First, it exceeded the allowable 40 square metres of non-residential gross floor area. Evidence suggested that multiple parts of the property, including a second shed, were used for the business. Second, the tribunal held that the exemption could not apply to prohibited activities, regardless of their scale.
The appellant appealed the decision to the Supreme Court, arguing that the tribunal misinterpreted the Scheme and that its findings on the floor area were unsupported by evidence. The court ruled that the tribunal’s decision was correct, affirming that the dog breeding activity was incompatible with the residential zoning and exceeded the scale permitted for a home occupation. The court noted that the appellant failed to rebut evidence suggesting that a second shed was used for the operation, which contributed to the breach of the floor area limit. The Supreme Court upheld the tribunal’s orders requiring the appellant to cease the dog breeding activity.
