Victorian Civil and Administrative Tribunal|2003-05-20

Callaghan & Ors v Greater Bendigo CC [2003] VCAT 620 (20 May 2003)

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.

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.

Environment Act 1987

Callaghan & Ors v Greater Bendigo CC [2003] VCAT 620

At a glance

Court

Decision date

Source

Judgment (57 paragraphs)

Callaghan & Ors v Greater Bendigo CC [2003] VCAT 620 (20 May 2003)

Parties

Legislation Cited (1)