* In Condition No. 7 the words "without the consent in writing of the responsible authority" shall be deleted.

* The following additional conditions shall be added:

15. In order to reduce disturbance of dogs the premises shall only be open for dropping off or picking up dogs between the hours of 10.00 a.m. and 4.30 p.m. on any day.

16. All dogs must be housed within the accommodation barn between the hours of 6.00 p.m. and 8.00 a.m. the following day.

17. Except for dogs from the same domestic household, no more than one dog shall be kept in a single outdoor exercise yard and no more than a total of 10 dogs shall be held within the outdoor exercise area at any one time.

Mr T.J. Fitzgerald and Mrs B. Fitzgerald, the applicants for review, appeared in person.

Ms P. Van de Hoef, town planner, represented the Responsible Authority, Cardinia Shire Council.

Mr A. Zoanetti, a building surveyor with local government experience, represented the respondent permit applicants, G. Green and M. Baldwin. Ms Baldwin and Mr Green also made themselves available to answer questions about the nature of their proposed business.

1. This was an application under Section 82 of the Planning and Environment Act 1987 (P & E Act) to review a decision by Cardinia Shire Council to grant a permit (in Permit Application No. T990700) for the land at 950 Westernport Road, Lang Lang to be developed and used for the purpose of an animal boarding establishment for 50 dogs.

2. The subject land is located on the south side of Westernport Road approximately 204m west of Watsons Road. The land is regular in shape and has a frontage of 251.5m, a depth of 641.1m and an area of 15.74h. Westernport Road is a major link route between the South Gippsland Highway at Lang Lang and the Princes Highway at Drouin.

3. The following description of the site and its locality is taken from Ms Van de Hoef's written submission:

"The site is flat and contains a detached, single storey dwelling, including an attached garage under the roof line. A small outbuilding is located to the rear of the dwelling.

Vegetation is mainly concentrated along the property boundaries, featuring a well established cyprus plantation along the western and part of the northern property boundaries. Part of the eastern boundary is vegetated with pinus radiata trees that are in poor condition. The area immediately surrounding the dwelling has an established garden typical of a residential property.

The balance of the property is used for grazing purposes. Surrounding properties are typically used for agricultural purposes, with most containing a dwelling."

4. Mr and Mrs Fitzgerald, the applicants for review, reside on land abutting to the east of the subject site. Their dwelling is sited 430m from that part of the land intended to be used for the animal boarding kennel compound. Their land has an area of 12.5h and is also used for grazing. A substantial hedge screens their dwelling on its western side and a row of Pinus Radiata extends along their western boundary abutting the subject land.

5. It is proposed to construct buildings and works on the south side of the existing dwelling to accommodate a dog boarding establishment for up to 50 dogs.

6. Supporting information accompanying the application detailed the proposal and was summarised by Ms Van de Hoef as follows:

"* A "barn" style building with a width of 9.0 metres, a length of 33.0 metres, being a floor area of 297.0m2, and a minimum wall height of 2.4m. The building is proposed to be constructed in colourbond (colours unspecified);

* Forty four (44) kennels, each measuring 1.5 metres wide and 3.0 metres long, would be accommodated in the above building.

* The capacity to board fifty (50) dogs at any one time in the building;

* The building would be adequately sound proofed, although no further details were provided;

* The kennel complex located 50.0 metres to the south of the existing dwelling and approximately 40.0 metres from the western property boundary;

* An enclosure surrounding the building with a 2.1 metre high chain mesh fence. The enclosure would have an area of 2408.0m2 and would feature ten (10) outside exercise areas;

* The piping of music through the kennels day and night which is considered to have a calming effect on the animals;

* The outer boundary of the kennel complex heavily vegetated with native trees and bushes;

* The attendance of one or both members of the business at all times;

* Hours of trading to be 10.00 am to 4.30 pm daily, seven (7) days a week, with pick up and drop off by appointment only;

* The appointment of a local vet to service the kennel complex; and

* The kennel complex would be serviced by its own rain water tank and separate tank for waste."

7. The land is within the Rural Zone of the Cardinia, Victorian Planing Provisions (VPP) format Planning Scheme. The purpose of this zone is:

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

To provide for the sustainable use of land for Extensive animal husbandry (including dairying and grazing) and Crop raising (including Horticulture and Timber production).

* Protection and creation of an effective rural infrastructure and land resource.

* Improvement of existing agricultural techniques.

* Protection and enhancement of the bio-diversity of the area.

* Value adding to agricultural products at source.

* Promotion of economic development compatible with rural activities.

* Development of new sustainable rural enterprises.

To ensure that subdivision promotes effective land management practices and infrastructure provision."

8. Within this zone a permit is required to use land for the purpose of animal boarding which falls within the umbrella definition of agriculture.

9. Animal boarding is defined as "land used to board domestic pets, such as boarding kennels and a cattery".

10. Pursuant to Clause 35.01-3 a planning permit is also required for any buildings and works associated with a Section 2 use. The subject land is also affected by a significant Landscape Overlay - Lang Lang/Heath Hill. The relevant character of this overlay is generally to protect and enhance environmental and visual values of the landscape, to protect and conserve habitat for fauna and flora, to ensure new development avoids detrimental visual impacts and to maintain vegetation as an important element within the landscape.

11. It is relevant also that the subject land is within an Extractive Industry Interest Area and is thus affected by the local planning policy at Clause 22.02 which refers to sand extraction in the Lang Lang to Grantville Region.

12. In addition to the matters for consideration set out at Clause 65 of the Scheme, which includes the State and Local Planning Policy Framework, the matters set out at Section 60 of the P & E Act and any effect on the amenity of the area, pursuant to Clause 35.01-6 specific issues to be taken into account in assessing applications for the use and development of land within the Rural Zone are set out. Included amongst these are the following:

"* The maintenance of farm production and the impact on the rural economy.

* Whether the site is suitable for the use or development and the compatibility of the proposal with adjoining and nearby farming and other land uses.

* The farm size and the productive capacity of the site to sustain the rural enterprise and whether the use or development will have an adverse impact on surrounding land uses.

* The protection and enhancement of the natural environment and the character of the area, including the retention of vegetation and fauna habitat and the need to revegetate land including riparian buffers along waterways, gullies, ridgelines, property boundaries, discharge and recharge areas.

* The location of any building or works with respect to the natural environment, major roads, vistas and water features and the measures to be undertaken to minimise any adverse impacts."

13. The subject application for permit was lodged with the Responsible Authority on 31st of August 1999. Following the giving of notice of the application two objections were received. The grounds for objection were summarised by Ms Van de Hoef as follows:

"* A considerable amount of noise will be produced by fifty (50) dogs, especially when located in a "strange" environment;

* The existing dogs being kept on the property are very noisy at times;

* Waste from the dogs could prove damaging to the local environment;

* There is a risk that the dogs would escape and ravage wildlife and local livestock; and

* Reticulated water is not available to the property."

14. The application was also referred to the Council's Health Department, to the National Trust, as a referral authority for the Significant Landscape Overlay and to VicRoads, given that Westernport Road is a declared Main Road. The National Trust and VicRoads had no objection to the proposal. The Health Department sought further information in respect of waste disposal. In response to this request the following further information was forwarded:

"* The septic tank would have a capacity of 3200 litres and would only take water and urine;

* It is estimated that approximately 300 litres of water would be used each day (water pressure cleaner using approximately 10 litres of water a minute and based on a cleaning time of 30 minutes);

* Solid waste would be picked up by a solid waste contractor once a week. The solid waste contractor would provide the bins and liners; and

* The kennels will be cleaned daily in the morning and throughout the day any solid matter would be removed and any urine cleaned up with a mop and bucket."

15. On receipt of this information the Council's Health Department had no objections to the proposal. At its meeting on the 6th of December 1999 the Council, adopting its officer's recommendation, resolved to grant a permit subject to conditions, including a condition requiring the main kennel building to be constructed having regard to advice to be obtained from an acoustic consultant.

16. The subject application for review was lodged on 4th of January 2000. The sole grounds for review were stated to be "excess noise".

17. At the hearing all parties or their representatives tabled and spoke to written submissions. These, together with the plans, photographs and other material tabled in the course of the hearing have been appended to the Tribunal's file. Exceptions to this are aerial photograph tabled by Ms Van de Hoef and the Fitzgeralds' collage of photographs both of which were returned at the conclusion of the hearing.

18. Having heard the submissions and considered the evidence presented I advised the parties at the conclusion of the hearing that I would be disallowing the application for review and directing that a permit issue subject to revised conditions. My reasons for so determining were given orally and are summarised below.

19. The principal issue in this application for review was the possible impacts on the amenity of the Fitzgeralds' property from the noise of barking dogs. Other issues raised but not argued to any great extent were the implications for polluted run-off and odour associated with dog waste and the possible impact on wildlife should dogs escape. I accept the opinion of the Council's Health Department that the provision for waste disposal is appropriate and can be dealt with via conditions on any permit. I am also satisfied that with a 2.1m fence around the whole compound and given the fact that it is not in the operator's interest to lose dogs entrusted to their care, that there is little likelihood of this use impacting on local wildlife.

20. Turning then to the issue of noise I find that this proceeding benefited greatly from the tendering by Mr Zoanetti of the acoustic report prepared by Red Zone Acoustics - Acoustical Engineers and Consultants at 21 David Lee Road, Hallam, pursuant to Condition 1(e) of the Notice of Decision. This report demonstrated to my satisfaction that noise from barking, while the dogs are inside the proposed barn structure, would not impact unreasonably on the Fitzgeralds within their dwelling located approximately 420m to the east of the kennel. Indeed this evidence demonstrated that the noise, attenuated by the insulated nature of the barn structure and distance, would be well within acceptable noise limits.

21. The barn will be required to meet the construction requirement set out in the acoustic report, including:

22. This is provided for at Condition 3 of the Notice of Decision.

23. I also found the evidence of Mr Green and Ms Baldwin to be persuasive and agree with the Tribunal in P.J. Gerber v Shire of Bulla and V.P. Coppinger (P88/2730 2 AATR), a decision referred to by Ms Van de Hoef, that "the success or otherwise (of a boarding kennel) all depend, as it often does, on the quality of the management of the establishment". Mr Green and Ms Baldwin's evidence revealed that all dogs should be inside the acoustically treated barn from 5.30 pm onwards. Having regard to the acoustic evidence this means that sleep disturbance is unlikely.

24. During the day no more than 10 dogs would be outside within the compound containing single dog exercise yards. They will have been led there on leashes and each yard has side screens to reduce visual contact between dogs. Mr Green and Ms Baldwin also explained how as an important management practice dogs known to have a propensity to bark will be treated differently, being exercised with a dog handler rather than left alone, or even kept entirely inside the barn given that the runs within the barn are of a reasonable size. There was also evidence of special devices such as Citronella collars which can discourage barking.

25. It is of course in nobody's interest to have constantly barking dogs. This does not of course mean that barking associated with this boarding kennel will be non-existent. Rather the issue to decide is what would be reasonable.

26. At present the Fitzgeralds can hear, on occasions, the barking of Mr Green's four German Shepherd dogs. These dogs are held in an open yard and without the benefit of an enclosed structure. The Fitzgeralds say this noise can be disturbing but they put up with it as a normal part of neighbourly living.

27. The subject application proposes to bring up to 50 dogs to the land next door but only 10 will ever be out and about at any one time. The acoustic report estimated that barking from multiple dogs at a 2m distance was in the vicinity of 88 to 90dB(A) and that using normal attenuating conditions the noise reduction over a distance of 420m should be approximately 50dB(A). The day period permissible noise limit suggested in the State Environment Protection Policy N-1 is for 41dB(A) between 7 a.m. and 6 p.m. The likely noise from barking is therefore within the N-1 limit. Background noise levels can however be quite low in a rural environment. The readings revealed a day time ambient noise level of 29dB(A) so that 40dB(A) is likely to be audible.

28. Having regard to the evidence however of Mr Green and Ms Baldwin I am satisfied that barking is likely to be the exception rather than the rule. Conditions on the permit also require constant attendance by at least one resident manager at all times and this can ensure that noise is abated swiftly.

29. If however barking is not controlled responsibly then a breach of Condition 8 will occur which requires the use to "not cause a nuisance or loss of amenity to any person or livestock". Breach of Condition 8 can be the subject of an enforcement order pursuant to Section 114 of the P & E Act or even the subject of an application pursuant to Section 87 of the P & E Act for cancellation of the permit. This Tribunal has and will cancel permits for breach of conditions provided of course appropriate evidence is provided such as diaries and recordings with corroboration from independent observers.

30. The principal thing to take into consideration however is what is reasonable in terms of noise generated by dogs. The subject land is zoned for rural purposes and animal boarding falls within the umbrella definition of agriculture. It is really only in such zones that animal boarding can be considered an appropriate activity. Rural areas are not necessarily quiet and peaceful havens. Rather they are working environments where tractors, irrigation pumps and other machinery sounds can be anticipated and where animal sounds are also generated. The subject land is also within an Extractive Industry Interest Area with sand extraction imminent on the property one allotment to the west of the subject site. This too must affect ambient or background noise levels.

31. The conflict between activities associated with rural enterprises and land in rural areas primarily thought of as providing a residential purpose is often raised at this Tribunal, particularly in the context of applications to subdivide into lots too small for viable farming purposes. This application for review is yet another example of that potential for conflict. However I find that in the subject instance, having regard to the evidence presented that a boarding kennel of the size and type proposed would not be inappropriate for this rural zone.