2. The Responsible Authority's decision to refuse the grant of a permit with respect to permit application P981670 for development of 10 additional dog boarding kennels at 71-77 Hove Road, Rosebud is affirmed and no permit is granted.

Mr A. Matthews, Development Planner, appeared on behalf of the Responsible Authority.

Mr C. J. Daly, Solicitor, appeared on behalf of the respondent objector, and called Mr C. Rossiter, Senior Consultant with Marshall Day Acoustics to give expert evidence.

Mr D. Hansen, Planning Consultant with Ratio Consultants, appeared on behalf of the applicant.

1. This is an application under section 77 of the Planning and Environment Act 1987 (The Act) to review the decision of the Responsible Authority to refuse the grant of a permit with respect to permit application P981670 for the construction of 10 dog boarding kennels at 71-77 Hove Road, Rosebud.

2. The grounds upon which the permit application was refused by the Responsible Authority are as follows:

1. The proposal will cause significant increased detriment to the adjoining residential areas by way of noise and nuisance.

2. The proposal conflicts with the residential amenity of the area.

3. The proposal will prejudice the future planning of the area.

4. The proposal is incompatible with the Retirement Village on the adjoining land.

1. The proposal will not cause significant detriment to the adjoining residential areas by way of noise.

2. The proposal will not conflict with the residential amenity of the area.

3. The proposal will not prejudice the future planning of the area.

4. The proposal is not incompatible with the Retirement Village on the adjoining land.

4. At the hearing all the parties tabled and spoke to written submissions. The parties also presented the Tribunal with various plans, diagrams, photographs and other material. Mr Daly called Mr Charles Rossiter, Senior Consultant with Marshall Day Acoustics to give expert evidence. All of the material presented to the Tribunal has been considered.

5. The subject land is located on the north side of Hove Road, Rosebud, commencing approximately 230 metres east of Bayview Road. The land, which also extends through to have a second frontage to the south side of Fairway Grove, is a regular rectangular shape with both street frontages measuring approximately 67.8 metres. The land has a depth of 126.25 metres along the north boundary and an overall area of approximately 8559 square metres.

6. The subject land is used for the purpose of dog boarding kennels and cattery, and is occupied by a number of single storey buildings which are essentially located on what can be described as the southern half of the property. The buildings on the land consist of a single storey dwelling occupied by the manager of the facility, a building used as a reception and food preparation area, various free standing buildings which comprise the kennels and cattery, and 2 sheds.

7. The northern half of the land is essentially vacant land devoid of buildings and vegetation other than for shrubs and blackberries located along the Fairview Grove frontage.

8. The current site layout provides for vehicle and pedestrian entry into the land via 2 street crossovers in Hove Road which provide access to an internal semi circular driveway leading to the reception building. A 1.8 metre high timber fence exists along the Hove Road frontage, whilst acoustic fences have been constructed along part of the west and east property boundaries.

9. The subject land is located within an established residential area, and generally surrounded by properties which are occupied by residential uses.

10. The property which abuts the subject land's west side boundary is occupied by a Retirement Village comprised of approximately 100 residential units. A number of units are located adjacent to the common boundary with the subject land.

11. Two vacant residential lots abut the subject land's east side boundary, with one lot fronting Hove Road and the other fronting Fairview Grove. Mr Hansen advised the Tribunal that both of these properties are owned by the permit applicant. Properties further east consist of lots which are either vacant, or occupied by dwellings.

12. Dwellings occupy the properties to the south and north of the subject land fronting the south side of Hove Road and north side of Fairview Grove respectively.

The proposal & notice of the permit application

13. The proposal is to construct a single storey building that will accommodate 10 individual dog kennels with associated dog runs on the land. The proposed building is to be located in a central position on the land, to the rear of an existing area used for kennels and setback 10 metres from the west side boundary.

14. In describing the proposed building, Mr Hansen stated:

The proposed building measures 3.8 metres by 15.8 metres and would have an area of about 60.04 square metres and an overall height of about 2.7 metres. An enclosed 1.0 metre wide walkway is proposed adjacent to the northern and southern elevations of the building.

The proposed kennels are of a modern design and layout and include an individual enclosed dog run for each kennel. The design ensures that dogs are accommodated separately and not in sight of each other to minimise interaction.

15. Mr Hansen also advised the Tribunal that the proposed kennels are to replace 18 older style kennels which were demolished approximately 7 years ago and that it is not proposed to increase the number of animals permitted on the site at any one time.

16. The plans submitted with the application also indicate that what can be described as the northern half of the subject land is to be developed for housing, although the plan denotes that the housing proposal does not form part of the application.

17. The Responsible Authority required the permit application to be advertised and in response, it received 20 objections from the respondent objector and residents of the Retirement Village. The grounds of objection were summarised by Mr Matthews as follows:

* Increase in noise resulting from the barking and howling of dogs;

18. The Responsible Authority subsequently determined to refuse the permit application.

19. The subject land's "planning" or land use history includes the issue of various planning permits either by the Responsible Authority or at the direction of the former Town Planning Appeals Tribunal. The subject land's history is relevant to identification of the planning scheme provisions which are applicable and the consideration of the merits of the proposal.

20. Based on the information contained in the submissions presented to the Tribunal, a summary of the permits which have been issued is as follows:

* According to the Responsible Authority and Mr Hansen, a planning permit was issued in 1957 for the use of the land for dog kennels and cattery.

* In 1979, the Town Planning Appeal Tribunal directed the issue of Planning Permit No. 3077 which authorised the reconstruction of the dog kennels and cattery. Condition no.7 on that permit restricted the maximum number of number of dogs kept on the site at any one time to 54 and the maximum number of cats to no more than 40 at any one time.

* Planning Permit No. 3843 was issued in May 1981 to undertake minor works and construct a building comprising an office/reception area, holding pens for dogs and cats and a food preparation area.

* Planning Permit 7480 was issued in December 1985 for the construction of a storeroom and a carport; and

* Planning Permit No. 17294 was issued in July 1993 for the subdivision of the land into four (4) lots, redeveloping ten (10) kennels for single dog accommodation on the lot retaining the dog/kennels cattery, developing dual occupancies on the three (3) lots being created (and fronting Fairview Grove) and the subdivision of the dual occupancies. This Planning Permit lapsed without being acted upon. The applicant lodged a request for an extension of time, but this could not be granted as the request had been lodged outside of the 3 month period after the permit expired.

21. Mr Hansen advised the Tribunal that 18 dog kennels were demolished in 1992 to make way for the 10 kennels proposed in Planning Permit No. 17294.

22. Mr Hansen also advised the Tribunal that the applicant, Mr McNamara, had objected to the permit application for the establishment of the Retirement Village on the land to the west, and subsequently lodged an appeal against the Responsible Authority's decision to approve the application. Mr McNamara withdrew his objection and the appeal in accordance with a written agreement that he entered into with the owner of the Retirement Village land. The basis of the agreement was that in return for McNamara withdrawing his objection and appeal, the owner of the land to the west would not object to future planning permit applications for the development of the subject land.

23. The Tribunal notes that Mr Hansen did not formally oppose the respondent objector's standing in this matter, nor was there any submission or evidence forwarded to the Tribunal which demonstrated that the respondent was not entitled to object under the provisions of the Planning and Environment Act 1987 or to contest the application before the Tribunal. The agreement referred to by Mr Hansen was not made pursuant to the Planning and Environment Act 1987, but rather is of a private nature between 2 parties. The Tribunal is of the view that this agreement is not a relevant matter.

24. At the time the Responsible Authority made its decision to refuse the permit application, the new format Victoria Planning Provisions (VPP) based planning scheme for the municipality had not been approved. Under the scheme applicable at the time, the Flinders Planning Scheme, the land was located within the Bayside Residential 2 zone. The existing use of the land fell within the definition of "Miscellaneous Use", a use which was prohibited within the zone. Clause 1.04 of the former scheme provided for the continuation of prohibited uses which had been lawfully established, whilst Clause 1.04 (4) specified a requirement for a planning permit to be obtained for any new buildings and works associated with the continuation of such use.

25. Subsequent to the Responsible Authority's decision, the new format VPP based planning scheme came into operation on the 6 May 1999. The provisions of the new planning scheme are now in force and accordingly, the Tribunal must decide the application on the basis of the planning scheme which is now applicable.

26. Under the new planning scheme, the subject site is located within a "Residential 1" zone, the provisions for which are found in Clause 32.01 of the ordinance. The purpose of the zone is:

To implement the State Planning Policy Framework and Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

To provide for residential development at a range of densities with a variety of dwellings to meet the housing needs of all households.

In appropriate locations, to allow educational, religious, community and a limited range of other non-residential uses to serve local community needs.

27. Under the new scheme, the existing use falls within the definition of "Animal Boarding", which is defined as follows:

Land use to board domestic pets, such as boarding kennels and cattery.

28. "Animal Boarding" is a Section 3 or prohibited use within the zone.

29. Clause 63 of the scheme sets out the general provisions which apply to existing uses. Under Clause 63.01 an existing use right is established if, inter-alia, a use was lawfully carried out before the approval date or a permit had been granted before the approval date and the use commences before the permit expires. Neither Mr Matthews or Mr Daly contested the fact that the land has existing use rights for the purpose for which it is currently used.

30. Clause 63.05 sets out specific provisions relating to the continuation of Section 2 and 3 uses as follows:

A use in Section 2 or 3 of a zone for which an existing use right is established may continue provided:

* No building or works are constructed or carried out without a permit. A permit must not be granted unless the building or works complies with any other buildings or works requirement in this scheme.

* Any condition or restriction to which the use was subject and which applies to the use in Section 2 of the zone continues to be met. This includes any implied restriction on the extent of the land subject to the existing use right or the extent of activities within the use.

* The amenity of the area is not damaged or further damaged by a change in the activities beyond the limited purpose of the use preserved by the existing use rights.

31. A permit is required under Clause 63.05 for the proposed buildings and works.

Before deciding on an application under Clause 63.05, 63.08 or 63.10, in addition to the decision guidelines in Clause 65 and any other requirements of the Act, the responsible authority must consider the extent to which compliance can be achieved with all scheme requirements that can reasonably be met.

33. The subject land is also affected by 2 overlay controls. These are:

* Vegetation Protection Overlay (VPO) found at Clause 42.02, which essentially requires a permit to be obtained for the removal of vegetation as specified in the schedule.

* Design and Development Overlay (DDO) found at Clause 43.02, which essentially requires a permit to be obtained to construct a building or to construct or carry out works, unless exempted by the relevant schedule. The schedule does not exempt the proposal from the provisions of the DDO.

34. The planning scheme's State Planning Policy Framework sets out 7 statements of general principle_" that elaborate upon the objectives of planning in Victoria and describe the factors that influence good decision making in land use and development planning" ._ With respect to noise abatement, Clause 15.05-1 sets out the following objective:

To assist the control of noise effects on sensitive land uses.

Planning and responsible authorities should ensure that development is not prejudiced and community amenity is not reduced by noise emissions, by ensuring that there is suitable separation between potentially amenity reducing and sensitive land uses and developments.

36. Both Mr Matthews and Mr Hansen directed the Tribunal to Clause 22.12 which sets out the local policy for Non Residential Uses in Residential Areas. The objectives of the policy are:

* To ensure that non residential uses are appropriately located having regard to:

* The intensity and hours of operation of the proposed activity.

* The siting and design of the proposed buildings and works, including car parking areas and advertising signs and telecommunication facilities.

* To ensure that the scale of development is consistent with nearby housing.

* To reduce the potential adverse impacts on the amenity of residential properties.

* To avoid the development of de facto commercial strips along main roads in residential areas and the oversupply or duplication of commercial premises.

37. Clause 22.12-3 sets out the policy as follows:

* In areas that are appropriate to the intensity and scale of the proposed use and that will have minimal impact on the amenity of the local area and nearby residential properties. Major facilities and services serving catchments beyond the local level should be located in commercial areas or sited on roads which avoid the generation of additional through traffic on residential streets.

* To provide a focal point for community services eg: adjoining existing or planned future community facilities.

* Where they are readily and safely accessible by road and non vehicular routes.

* The built form of development intended to accommodate non-residential uses:

* Be of a scale and architectural style compatible with a residential area, including low key advertising signage.

* Include features to reduce noise, loss of privacy and to enhance the appearance of the development, including landscaping, screening, acoustic fencing.

* The siting and design of buildings and works including car parking areas should respond to the surrounding housing and streetscape.

38. Although Mr Hansen referred the Tribunal to the above policy, he submitted that the policy is generally not applicable to this proposal.

39. Mr Matthews submitted that the key issue to be considered is the extent to which the proposal will impact on the amenity of existing and future residents. In particular he expressed concerns with respect to the impact on the amenity of residents of the Retirement Village, and to that of future residents of the vacant portion of the site to the north of the kennels.

40. Mr Matthews submitted that the proposal is inappropriate on the basis that it involves an increase in the number of kennels and that this would result in an increase in the number of dogs on the land. He went on to argue that an increase in the number of dogs would be contrary to the provisions of Clause 63.05 in that the restrictions set out in the planning permit granted by the Town Planning Appeals Tribunal in 1979 would not be met. Mr Daly supported this submission.

41. Furthermore Mr Matthews argued that given the nature of the activity, and the location of existing dwellings and future dwellings on adjoining and surrounding land, it would be unlikely that practical noise abatement measures could be implemented on the land.

42. Mr Daly submitted that the proposal would adversely affect the amenity of the residents of the Retirement Village by way of noise and odours. Mr Daly submitted that noise from the proposed kennels would exceed the guidelines set down in State Environment Protection Policy N-1 (SEPP N-1) and the EPA publication N3/89 Interim Guidelines for Control of Noise from Industry in Country Victoria and relied on expert evidence presented by Mr Rossiter to support his submissions on this point.

43. With respect to the balance of the subject land, to the north of the kennels, Mr Daly also submitted that it was fundamentally bad planning to allow dog kennels to be constructed in such proximity to land which was intended to be developed for residential purposes.

44. Mr Hansen submitted that the proposal should be supported on the basis that the land has long established existing use rights, and that the proposal does not involve a change in use. Furthermore he argued that the planning scheme specifically protects and preserves existing use rights, and accordingly this cannot be easily dismissed.

45. Mr Hansen also submitted that the application seeks permission to replace the 18 kennels that were demolished in 1992, and that the replacement kennels are the same as those previously approved by the Responsible Authority in 1993. He stated that the design and construction of the kennels, together with acoustic fencing would ensure that the impact on the adjacent Retirement Village would be minimised.

46. During the course of his submission Mr Hansen made it clear that the proposal does not seek to facilitate the provision of accommodation for animals beyond the limits set out in the conditions on the permit granted by the Town Planning Appeals Tribunal in 1979, and accordingly, the assumption made by Mr Matthews and Mr Daly that the proposal will increase the number of dogs kept on the land is incorrect. Furthermore he emphasised that the residential development shown on the plans is not part of the application.

47. This application has presented the Tribunal with the usual dilemmas associated with balancing competing interests. On the one had the proposal involves buildings and works associated with a use which would normally be prohibited in the zone and in this case, one which the Tribunal regards as being particularly incompatible with residential uses due to the amenity impacts associated with noise and smells. On the other hand, the Planning and Environment Act 1987 clearly seeks to protect existing use rights in specified circumstances and this is reflected in the provisions of Clause 63 of the Planning Scheme.

48. In his submissions, Mr Hansen stated that the purpose of the zone is not relevant to the consideration of the proposal given that the land has existing use rights. He also sated that:

Residential usage has encroached on the subject land by choice and has had no regard for the existing use and its rights to continue under the planning controls.

49. The Tribunal does not agree with Mr Hansen's position. Clause 65.01 makes it clear that the purpose of the zone is a relevant matter to be considered, and in the Tribunal's view is an important factor in balancing the competing interests of protecting residential amenity against existing use rights. The purpose of the zone is not something that can be simply dismissed.

50. In considering these competing interests this is not to say that it would be reasonable for surrounding residents to have an expectation that they should be able to enjoy the same level of amenity as say those who live in a residential area where no such use exists. The reality is that the use exists, it is lawful, and accordingly this must be taken into account. On the other hand, the applicant must also accept that the surrounding land uses are lawful and in accordance with the primary purpose of the zone, and this may of course lead to constraints on activities and development on his land that would not otherwise exist if the use was located on land within an appropriate land use zone.

51. Once the zoning is in place, however, it must be a reasonable expectation that land can be used and developed in accordance with the primary purpose of that zone. This is essentially what has happened on surrounding properties. In addition, existing uses, particularly those which would normally be prohibited, cannot reasonably expect to be allowed to continue, expand or develop without due consideration to the amenity of surrounding land uses which accord with the purpose of the zone.

52. The Tribunal does not agree with Mr Hansen's assertion that residential uses have encroached on the subject land by choice. Indeed, it is ironic that this assertion was made on behalf of the permit applicant who has clearly demonstrated an intent or desire to use and develop the vacant northern half of the subject land and the adjoining vacant lots to the east for residential purposes. The strategic planning decisions taken in the past have been implemented in part by the zoning which applies, and accordingly, the reality is that the use and development of surrounding properties for residential purposes has been encouraged by the planning scheme provisions.

53. Mr Hansen also made the claim that surrounding land use development has occurred without regard for the existing use rights which are applicable to the subject land, although his submissions did not demonstrate how this is so.

54. Although the planning scheme incorporates provisions which preserve existing use rights, this does not necessarily mean that an existing use operating pursuant to such rights can change, either by way of different activities or new buildings, without due regard to the nature of surrounding land use and the amenity of the area. The decision guidelines in Clause 63.12 of the planning scheme compel the Responsible Authority to consider the "extent to which compliance can be achieved with all scheme requirements that can reasonably be met." Whilst this provision does not require existing uses to fully comply with the scheme provisions, it none the less indicates an expectation that proposals should seek to meet the provisions of the scheme where possible. Furthermore the decision guidelines as set out in Clause 65 require consideration of matters including the purpose of the zone, the orderly planning of the area and the effect on the amenity of the area.

55. In reviewing this particular proposal, the Tribunal is of the view that the positioning of dog kennels 10 metres from an adjoining residential use is totally inappropriate, given the potential for adverse amenity impacts associated with barking dogs. The "Environment Protection Authority Guidelines for Dog Kennels" submitted by Mr Rossiter recognise the problems associated with barking dogs and recommend that kennels should be located at least 500 metres away from residential areas.

56. Whilst there is no change in use or increase in the maximum number of dogs allowed on the land, the Tribunal does not consider that this justifies the location of new kennels in such close proximity to an adjoining residential property.

57. In addition the Tribunal does not accept that the kennels proposed in this application are simply replacement buildings. The buildings "to be replaced" were demolished in 1992, and were located further away from the Retirement Village. The previously existing kennels are long gone and were located on another part of the land. The Tribunal is unable to place too much weight on this as a factor in favour of the proposal.

58. That the proposed kennels are located in the same position as those which were approved under the permit issued by the Responsible Authority in 1993, is not in the Tribunal's view, a significant basis for justifying the proposal. The reality is that the permit has expired and is no longer valid, and accordingly, the matter must be considered afresh. In any event the Tribunal doubts the wisdom of the Responsible Authority's decision to grant a permit in that case.

59. In the case of the 1993 permit, the Responsible Authority allowed the development of new kennels, generally as set out in the application now before the Tribunal, and the development of what can be described as the northern half of the land for medium density housing. The endorsed plans pursuant to the 1993 permit indicate that the kennels were to be located 2 metres from the common boundary with the residential component of the proposal, with the nearest dwelling setback 10 metres from the common boundary. Whilst it appears that some measures were to be taken to address the noise issue, the Tribunal finds it extraordinary that the Responsible Authority could allow new buildings accommodating clearly incompatible land uses to be developed in such close proximity to each other. In the Tribunal's view this was a poor planning decision that thankfully, was not implemented.

60. The Tribunal is of the view that in cases such as this, new development should bring about a clear improvement or benefits to the amenity of the area. This is the approach followed by the Town Planning Appeals Tribunal (Appeal X79/757A G & L Lester and Ors V Shire of Flinders and D & J MacNamara), when it granted the permit for the reconstruction of the kennels and cattery on the subject land. In directing that a permit be granted, the Tribunal stated:

In the present case the proposal is to demolish the existing structures and to rebuild solid suitable kennels and cattery conforming with the widely accepted code which the Shire of Cranbourne has introduced for the accommodation of dogs and cats. The objectors naturally enough want to see an end to this non-conforming use which they find disturbing and the customary grounds which one expects in a case of this sort have all been relied upon - noise, offensive smells and detriment to the amenity. We are satisfied that the proposal a (sic) great improvement on what is currently there and if a permit were to be refused could remain as an objectionable use not subject to conditions. We believe on planning grounds that it is proper to approve a permit in this case which will have the effect only marginally (sic) of increasing the animal population, but substantially improving the accommodation provided and the restriction of any nuisance which such may occasion neighbours.

61. In the above case, the Tribunal was faced with a scenario where the buildings to be replaced were not up to the standards applicable at the time, and the use was not restricted by planning permit conditions. In granting a permit, the Tribunal was clearly satisfied that the proposal would bring about a "great improvement", and if refused would remain as an objectionable use. Furthermore the Tribunal was able to make a previously unrestricted use subject to permit conditions.

62. In this case however, the Tribunal is of the view that the proposal does little to enhance the amenity of the area. Rather, this proposal has the potential to not only increase the adverse impacts on the amenity of the Retirement Village by locating kennels much closer to the common boundary, but also to further prejudice the future development of the vacant part of the land for residential purposes, particularly due to noise from barking dogs.

63. The evidence presented by Mr Rossiter was to some extent surprising. In his evidence he stated that the acoustic measurements which he had undertaken of noise from the kennels on the subject land did not exceed the requirements of SEPP N-1 or Guidelines N3/89.

64. Furthermore his evidence also included information suggesting that the number of dogs present does not necessarily affect noise levels. He also suggested that dogs barking from the proposed kennels would have a greater impact on the land to the north rather than the Retirement Village, given the orientation of the kennel openings.

65. He expressed the view that based on his experience, noise from dog kennels which are within 30 metres of residences will considerably exceed the noise levels recommended by the SEPP N-1 and Guidelines N3/89 and that major noise control measures, such as the full enclosure of the kennels, would be required.

66. On face value, Mr Rossiter's evidence indicates that the operation of the existing kennels does not appear to result in noise levels which exceed those set out in SEPP N-1 or the Guidelines N3/89. The Tribunal also notes that based on the information on the application plans, the closest kennels to the Retirement Village are located approximately 26 metres from the common boundary. Given that the units within the Retirement Village are setback away from the boundary, the distance between the existing kennels and the most proximate unit in the Retirement Village is approximately 30 metres.

67. The Tribunal finds that this proposal is poorly conceived. Whilst it is arguable whether it is appropriate to apply the standards set out in SEPP N-1 or Guidelines N3/89, the measurements taken by Mr Rossiter indicate that under the existing conditions, noise levels generated by activities on the land meet these standards. Based on his experience, Mr Rossiter indicated that the noise from dog kennels located within 30 metres of adjoining residential properties will considerably exceed the standards set out in SEPP N-1 and Guidelines N3/89.

68. The Tribunal is of the view that the location of the proposed kennels 10 metres from the common boundary with the Retirement Village increases the potential for noise from barking dogs to adversely affect the amenity of the most proximate units. The location of the kennels in such proximity to an existing residential use is contrary to the policy position expressed in Clause 15.02 of the scheme which requires Responsible Authorities to ensure that there is suitable separation between potentially amenity reducing and sensitive land uses and developments.

69. Whilst Mr Hansen made a number of statements in his submissions that the kennels will be constructed to a standard that will minimise noise impacts on the Retirement Village, the plans and other material supporting the application do not provide any substantive detail as to how this is to be achieved. Furthermore there was no evidence or information submitted which demonstrated that the location and construction of the proposed kennels will either improve amenity or at least maintain the status quo.

70. The Tribunal is also concerned that the proposed kennels will also make it increasingly difficult for the land, and particularly the vacant northern half of the subject land, to be used and developed in accordance with the primary purpose of the zone given the location of the kennels and the orientation of openings towards the north.

71. The impact of noise from barking dogs is a fundamental issue to be considered in an application such as this. The Tribunal is of the view that this application has failed to properly consider this issue both in the context of its impact on the amenity of adjoining residential properties and how it may prejudice the development of the subject land for purposes consistent with the purpose of the zone in the future.

72. Accordingly the Tribunal finds that the development of the proposed kennels will adversely affect the amenity of the area, and furthermore will prejudice the orderly planning of the area.

73 The Tribunal's decision is that the Responsible Authority's decision to refuse the grant of a permit is affirmed and no permit is granted.