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[2003] VCAT 620
procedural. The Tribunal revised and reproduced detailed permit conditions, directed the Responsible Authority to obtain Coliban Water's views and to serve those and any further submissions on the parties by...
This VCAT directions decision arose from a review under s82 of the Planning and Environment Act of a council permit to reconstruct dog boarding kennels (up to 20 dogs) and add a cattery on rural-living zoned land at Heathcote. The Tribunal recorded that the boarding use was an existing use and could continue regardless of the permit outcome, but a permit was required for the proposed works and cattery. Noise from barking was the main neighbour concern, though no evidence of SEPP non-compliance was before the Tribunal. The Member revised and reproduced detailed permit conditions (design, waste management, operational controls, post-occupancy acoustic testing against SEPP - N1, and a cap of 20 dogs and 20 cats), directed the Responsible Authority to obtain referral authority views (Coliban Water) and parties to file further submissions by set dates, and listed the matter for administrative mention. If parties agree, the Tribunal proposed to order issue of the permit by consent; otherwise it will decide on the submissions.
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1,708 words · generated 03/08/2026
1 cited instrument linked from this judgment.
This is a directions and interim-conditions decision by Member S. R. Cimino of the Victorian Civil and Administrative Tribunal in a review under s 82 of the Planning and Environment Act 1987. The Responsible Authority (Greater Bendigo City Council) had granted a permit (application DM844/2002) allowing reconstruction of dog boarding kennels (maintaining a maximum of 20 dogs) and the development and use of a cattery at 10 Warrowitue Road, Heathcote. Neighbouring landowners (the Callaghans and Strongs) sought review.
The Tribunal held a hearing on 19 May 2003 and delivered directions on 20 May 2003. The Tribunal's remarks set out the site facts, the planning status, the neighbours' concerns (primarily noise from barking dogs), and the Tribunal's process for resolving contested permit conditions. The Member revised the Responsible Authority's proposed permit conditions, reproduced an entire set of detailed conditions in the decision, and directed the Responsible Authority, the applicants for review and the permit applicants to file further submissions and referral authority views (notably Coliban Water) on specified dates. The matter was listed for an administrative mention on 11 June 2003 to consider compliance with directions. The Tribunal proposed to make a consent order issuing a permit if the parties agreed to the revised conditions; if not, the Tribunal would decide the matter on the submissions filed (Remarks [8], [10]-[11]; Directions 1-4).
Two core factual and legal considerations underpinned the Member's approach.
Existing use rights: The Tribunal observed that the dog boarding kennels were an established use on site and therefore operated under existing use rights (Remarks [5]). That meant the existing boarding business could lawfully continue even if a new permit was refused. This legal positioning is central: it changes the balance when neighbours seek to prevent continuation of the use because the Tribunal recognised it could not, simply by refusing the present application, extinguish the established use. The practical consequence is that the Tribunal focused on controlling the proposed development and extension (the cattery and reconstruction) by means of conditions rather than using refusal to prevent the baseline use.
Amenity and environmental standards: The neighbours' principal concern was noise from barking dogs. The Tribunal noted repeated complaints but found no evidence before it demonstrating that noise had exceeded relevant EPA standards (Remarks [3]). Despite the absence of demonstrable statutory exceedance, the Tribunal regarded reconstruction and modernisation of the kennels as potentially beneficial to reducing noise emissions (Remarks [6]). Accordingly, rather than refuse the permit, the Member revised and tightened the permit conditions to require specific design, operational and monitoring measures to secure compliance with the State Environment Protection Policy (SEPP N-1), waste management requirements, numbers limits, and post-occupancy acoustic testing (Conditions reproduced in Remarks [9]). The conditions included explicit obligations to test noise over a two-week period within 12 months of commencement and to carry out structural or management changes if SEPP N-1 was exceeded (Condition 10 in Remarks [9]).
Given those considerations the Tribunal's procedural path was to craft detailed conditions, obtain referral authority input (Coliban Water), give parties an opportunity to comment, and then either make a consent order to issue a permit or decide the matter on the submissions. This approach balanced the established use rights, neighbours' amenity concerns and the Tribunal's practical power to condition development.
Before this decision (and as restated in it) the relevant legal propositions were:
After this decision, the practical posture emphasised by the Tribunal is that, where an existing use persists, the Tribunal is likely to pursue detailed conditioning and monitoring to protect amenity when noise complaints arise. The decision exemplifies an administrative practice: rather than extinguish an established use by refusal, a tribunal may impose specific, enforceable post-construction and management conditions tied to state policy (SEPP - N1), including mandatory acoustic testing and remedial obligations.
This is not a change in legal principle; rather, the decision is an exemplar of the Tribunal's conditioning powers and procedural method. The decision is procedural in nature and does not set novel law but is informative about the Tribunal's practical handling of amenity complaints against established rural-living businesses.
Selected passages from the Tribunal's remarks and a plain-English translation:
Remarks [5]: "Under the planning scheme, the land is located within the Rural Living zone. A permit is required under the zone for 'Animal Boarding', however, the use is already established and therefore operates under existing use rights. The use may continue even if this application is refused. A permit is required to extend the nature of the use to include a cattery and for the proposed development works."
Plain-English: The dog boarding business was already lawfully operating before this application, so it can carry on whether or not the new permit is granted. But rebuilding the kennels and adding a cattery are new development/changes that do need a permit.
Remarks [3]: "Whilst a number of complaints have been made, there was nothing before me to satisfactorily demonstrate that noise levels have exceeded the relevant EPA standards."
Plain-English: People have complained about barking, but the Tribunal was not shown evidence showing legal noise limits had been broken.
Condition 9 and 10 (Remarks [9]): "Noise from barking or any mechanical equipment must not exceed noise limits under SEPP - N1... Within 12 months... noise levels... must be tested over a two week period... If SEPP - N1 is being exceeded then the permit holder must carry out such structural alterations and/or management measures to achieve compliance..."
Plain-English: The permit says the kennel must meet the state's noise rules; the owner must pay for an acoustic test within a year. If the test shows the place is too noisy, the owner must fix it (by building changes or management practices).
Remarks [8]: "I have undertaken the revision of all conditions and improved their wording ... and added a condition limiting the maximum number of dogs and cats..."
Plain-English: The Tribunal re-wrote the permit conditions, tightened them and set a firm limit on how many animals can be boarded.
This decision is relevant and instructive where:
In such fact patterns, Tribunal decision-makers may follow the course taken here: set detailed, enforceable conditions, require post-occupancy monitoring (e.g. noise testing), impose numeric caps, and give referral authorities and parties an opportunity to comment before making a consent order.
This decision itself is a VCAT directions decision and does not purport to create binding precedent beyond the parties. It illustrates how VCAT exercises conditioning powers under the Planning and Environment Act and applies SEPP - N1 as the operative benchmark for noise. Later tribunal decisions addressing kennel or animal boarding noise are likely to cite or apply the approach of requiring design, operational controls and acoustic testing as appropriate. Because this is an administrative/procedural ruling rather than a final determination of rights, its persuasive value is practical: it models detailed conditions that a tribunal or council may adopt to manage amenity risk from animal boarding uses.
Users researching subsequent treatment should search for later VCAT decisions that explicitly reference this matter or that reproduce similar conditions, and review any higher court authority on existing use rights and the enforceability of post-occupancy testing conditions.
Several practical and legal questions remain open from this decision or its context:
These are issues practitioners should identify when preparing evidence, drafting conditions, negotiating settlements, or advising clients about likely procedural outcomes in similar permit challenges.
Disclaimer: This is information about the Tribunal's decision and what it says. It is not legal advice. I can make mistakes. Before you rely on this analysis, or act on it, get a qualified Australian lawyer to check it.
IN THE VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
Planning and environment List - s 82 Planning and Environment Act 1987 - Greater Bendigo Planning Scheme - Rural Living zone - Construct boarding kennels - cattery - noise.
RESPONSIBLE AUTHORITY: Greater Bendigo City Council
MEDIUM NEUTRAL CITATION: [2003] VCAT 620
1. By no later than the 27 May 2003, the Responsible Authority must file with the Tribunal and serve on the applicants for review (C/- Mr B Callaghan) and the permit applicant (C/-Mr Williams)
(i) the views of Coliban Water with respect to the proposal, and
(ii) any further submission it wishes to make in relation to the revised permit conditions set out in the remarks attached to these directions.
2. By no later than the 27 May 2003, the applicants for review must file with the Tribunal and serve on the Responsible Authority (c/- Mr Sherman, Russell Kennedy lawyers) and the permit applicant (C/- Mr Williams) any further submission they wish to make with respect to the revised permit conditions set out in the remarks attached to these directions.
3. By no later than the 4 June 2003, the permit applicants must file with the Tribunal and serve on the Responsible Authority (c/- Mr Sherman, Russell Kennedy lawyers) and the applicants for review (c/- Mr Callaghan) any further submission they wish to make with respect to the revised permit conditions set out in the remarks attached to these directions.
4. This matter is set down for administrative mention before me on 11 June 2003. The attendance of the parties is not required. to consider whether my directions have been complied with. There is no need for parties to
Responsible Authority: Mr A Sherman, lawyer, with Russell Kennedy
Applicants for Review: Mr B Callaghan, Mrs L Callaghan, Mr D Strong and Mrs M Strong.
1. This was an application under s 82 of the Planning and Environment Act 1987 against the Responsible Authority's decision to grant a permit with respect to permit application no. DM844/2002. The permit application sought permission to reconstruct dog boarding kennels housing up to 20 dogs and for the development and use of a cattery on land at 10 Warrowitue Road, Heathcote.
2. The subject land comprises a parcel of about 3.7 hectares located on the corner Warrowitue Road and Northern Hwy, Heathcote. The land is used as a yabby farm and for a dog boarding business. The dwelling on the land is occupied by the permit applicants. I understand that the dog boarding kennels which exist on the land were established some time after permission was given by the Responsible Authority in 1975.
3. The land is located within an area designated for rural living purposes and adjacent to a low density residential area. According to Mr Sherman, there are about 10 dwellings within 500 metres of the existing boarding kennels. It would appear that over recent years, neighbours have made a number of complaints to both Council and the EPA about noise from barking dogs. Whilst a number of complaints have been made, there was nothing before me to satisfactorily demonstrate that noise levels have exceeded the relevant EPA standards.
4. The proposal essentially involves the reconstruction of the existing boarding kennels. The maximum number of dogs to be kept remains at 20. The proposed new kennels are to be constructed to provide individual enclosures for each dog plus three exercise areas. It is anticipated that the new kennels will be designed to reduce noise emissions. It is also proposed to extend the existing business by constructing a cattery, an office and a work room. The new kennels and the cattery are located approximately on the same part of the site as the existing kennels.
5. Under the planning scheme, the land is located within the Rural Living zone. A permit is required under the zone for "Animal Boarding", however, the use is already established and therefore operates under existing use rights. The use may continue even if this application is refused. A permit is required to extend the nature of the use to include a cattery and for the proposed development works. The relevant decision guidelines are those found at clauses 35.03-06 and 65.
6. During the course of the hearing it became evident that the neighbours main concerns relate to noise from barking dogs. Whilst an appeal was lodged against the Responsible Authority's decision, it would be fair to say that the applicants for review recognize that the issuing of a permit for the reconstruction of the kennels to a more contemporary standard is a positive move towards reducing noise emissions and ensuring that compliance with relevant noise standards is achieved. It was also apparent that the applicants for review were somewhat dissatisfied with the level of detail in the permit conditions proposed by the Responsible Authority.
7. After some discussion between the parties, the applicants for review indicated that they would be willing to consent to the grant of a permit subject to more detailed conditions being set out in the permit. The permit conditions were then discussed in some detail and Mr Sherman and Mr Williams also agreed to changes, although Mr Williams reserved the opportunity to make further submissions with respect to a condition requiring noise testing after the kennels are completed.
8. Given the extent of the changes, and that there was a need for further information to be received from one of the referral authorities, I indicated to the parties that I would revise the conditions and set them out in an interim document following which they would be given an opportunity to comment on them. I have undertaken the revision of all conditions and improved their wording where appropriate. I have also included new conditions as discussed and added a condition limiting the maximum number of dogs and cats that may be kept on the land at any one time to those requested by the applicant.
9. Given the number of changes required, I think that it is easier if I reproduce all the conditions in the manner proposed for the permit. Accordingly, I set out the revised permit conditions below:
1. The development and use permitted by this permit must not be commenced until the development plans and the Environmental Management Plan prepared as part of the application are modified to the satisfaction of the Responsible Authority. When approved these plans will be endorsed and will then form part of this permit. The development plans must be generally in accordance with the application plans, but modified to show:
(i) the provision of and location of the existing staff and visitor car parking;
(iii) the perimeter fence around the exercise yards to the kennels to be not less than 1.8 metres high and designed to visually screen dogs from stimuli such as other dogs, animals traffic or passers-by.
The Environmental Management Plan must be modified to include measures to be taken to comply with the noise conditions set out in this permit and the provision of a Waste Management Plan in accordance with condition 7 on this permit.
2. The development and use allowed by this permit as shown on the endorsed plans must not be altered or modified (for any reason) except with the prior written consent of the Responsible Authority.
3. The exterior treatment of the buildings allowed by this permit including all exterior decoration, materials, finishes and colours must be to the satisfaction of the Responsible Authority. The exterior treatment of all buildings must be maintained to the satisfaction of the Responsible Authority.
4. All activities associated with the construction of the development allowed by this permit must be carried out to the satisfaction of the Responsible Authority and all care must be taken to minimize (particularly the emission of noise and effluent) the effect of such activities on the amenity of the locality.
5. Outdoor lighting, where provided, must be designed baffled and located to the satisfaction of the Responsible Authority such that no direct light is emitted outside the boundaries of the subject land.
6. The floor or the ground under the kennels must be constructed of an impervious material to assist with cleaning and drainage and, where possible, drained to appropriate floor waste gully to collect washdown water. Such washdown water is to be treated through an appropriate septic waste system or other waste treatment system, to the satisfaction of the Responsible Authority.
7. Waste management must be in accordance with an approved Waste Management Plan developed as part of the Environmental Management Plan. The Waste Management Plan must include:
(i) All sullage and waste water treated and disposed within the lot must be disposed of using either an approved aerobic treatment plant or a septic treatment system deigned in accordance with the Septic Tank Code of Practice 1996.
(ii) All washdown water, waste water or water, effluent or polluted drainage which has been in contact with dog excrement or putrescible matter must not be allowed to discharge beyond the boundaries of the subject land or directly or indirectly into any watercourse. The wastewater from the kennels must be drained via a floor waste drain into the existing septic system.
(iii) Untreated animal waste must not be stored on site and all solid wastes must be collected and must be disposed of off-site to the satisfaction of the Responsible Authority.
(iv) The wastewater from the cattery kitchen must be directed into a sullage pit that contains wastewater on site.
(v) The kennels must be regularly washed down and maintained in a hygienic manner to the satisfaction of the Responsible Authority.
8. All feed is to be stored in vermin proof containers.
9. Noise from barking or any mechanical equipment must not exceed noise limits under State Environment Protection Policy (Control of Noise from Commerce Industry and Trade) No. N-1 (SEPP -N1) to the satisfaction of the Responsible Authority.
10. Within 12 months of the use commencing and at a time when the kennels are either fully or close to fully occupied, noise levels emanating from the premises must be tested over a two week period, at the permit holder's expense, by a professional acoustic consultant to determine the extent of compliance with SEPP - N1.
A copy of the consultants report must be submitted to the Responsible Authority within 14 days of it being completed.
If SEPP - N1 is being exceeded then the permit holder must carry out such structural alterations and/or management measures to achieve compliance to the satisfaction of the Responsible Authority.
11. All washdown and other nutrient rich runoff are to be retained and treated on site.
12. At least one fully enclosed or acoustically treated baffled kennel must be available to house particularly noisy animals, to the satisfaction of the Responsible Authority.
13. Electronic masking noise devices must be provided to reduce audible stimuli to the dogs, to the satisfaction of the Responsible Authority.
14. Access to kennels must be restricted to staff.
15. Feeding of dogs must only be performed between the hours of 9.00am and 5.00 pm, except that during daylight saving periods, this period is extended to 6.00pm.
16. Exercising of the dogs must only be performed between the hours of 9.00am and 5.00pm.
17. A person responsible for the operation of the animal boarding facility must be available on site, 24 hours per day.
18. At any time when the yabby farm on the land is the subject of a tour or like access by the public at or around the yabby ponds, dogs must be kept within the enclosed kennels.
19. The boarding kennels and cattery must be conducted in accordance with the "Code of Practice for the Operation of Boarding Establishments 1999".
20. Not more than 20 dogs and 20 cats may be boarded on the land at any one time.
21. All access must be via Warrowitue Forest Road and no vehicular access from the subject land to the Northern Hwy is permitted.
22. All proposed buildings and works must be setback beyond the proposed Northern HWY reservation boundary in accordance with the building and/or planning requirements as shown in the Greater Bendigo City Council Planning Scheme.
23. This permit will expire if the development permitted by this permit is not completed within two years and the use is not commenced within two years from the date hereof or if the use is discontinued fro a period of two tears. The time within which the development must be completed and the use must be commenced may on written request made before or within three months after the expiry of this permit be extended by the Responsible Authority.
10. This matter is set down for administrative mention before me on 11 June 2003 to consider the responses received pursuant to my directions. The attendance of the parties is not required.
11. If the parties agree with these conditions, they can advise me of this. If such advice is received, I propose to make an order, by consent, directing the issue of a permit subject to conditions. If agreement is not reached, then I will decide the matter taking into account the submissions made during the hearing and subsequently filed in accordance with these directions.
Callaghan & Ors
Greater Bendigo CC [2003] VCAT 620
The Tribunal revised and reproduced detailed permit conditions, directed the Responsible Authority to obtain Coliban Water's views and to serve those and any further submissions on the parties by 27 May 2003; directed the applicants for review and permit applicants to file any further submissions on the revised conditions by 27 May and 4 June 2003 respectively; set the matter for administrative mention on 11 June 2003 and proposed to make an order by consent to issue a permit subject to the revised conditions if parties agree, otherwise the Tribunal will decide the matter on submissions (Directions 1-4; Remarks [8], [10]-[11]).