Frigo v Macedon Ranges SC [2006] VCAT 2080

The decision of the Responsible Authority is affirmed. In permit application P205-0439 no permit is granted.

1 This case concerns a proposal for the keeping and training of up to 20 greyhounds on a 16.5ha lot within a pocket of Clarkefield zoned Rural Living.

2 Council required notice of the application to be given to the owners and occupiers of adjoining and surrounding properties and seven objections were received. The Council subsequently decided to refuse the application.

3 Mrs Frigo is now seeking a review of that decision. Her son, Mr Hennessy is a registered greyhound trainer and he would be responsible for conducting the proposed use.

4 The primary issue in this case is essentially whether the location of the site and various facilities proposed would be acceptable having regard to the position of neighbouring dwellings.

5 Other issues which are secondary in nature include the acceptability of proposed waste disposal arrangements and traffic related considerations.

6 The subject site is located on the north side of Hillview Drive at its eastern end. This road, accessed from Boggy Gate Road at its western end, terminates in a cul-de-sac near the site. Both of these roads are unmade with grass verges.

7 The land is an irregular shaped parcel and is relatively flat, with a frontage of 300m, depth varying from 382m to 445m and a rear boundary extending for 553m. It has various improvements including a dwelling and a large metal clad stable building located within the north-eastern portion of the land. The stables are to be converted for use as the kennels.

8 A former horse trotting track remains on the land generally running between the east and west boundaries. Other features include a dam, smaller shed and outdoor dog enclosures, one of which was occupied by a litter of puppies during my inspection.

9 Some vegetation has been established on the land, mainly concentrated around the dwelling.

10 Surrounding land comprises lots which are generally in the range of 15 to 20 hectares. There are four dwellings within about 500m of the proposed dog kennels. The nearest property, owned by the O'Toole's, adjoins the site to the east. Their dwelling is about 21m from the common boundary and 110m from the proposed kennels.

11 This proposal is for the keeping and training of greyhounds for racing. The use is solely for Mr Hennessey - that is the facility will not be available for use by outside parties, including the training or boarding of dogs.

12 Mr McCaffrey advised that it is likely that only 14 adult dogs would be kept including 4 bitches for breeding. I was also told at the hearing that on average, 1 litter of pups is produced by each bitch per year, with each litter yielding on average about 6 dogs. The puppies are to be typically kept for 10 to 12 weeks before being sold or removed from the land.

13 The stables building is to ultimately contain 9 individual kennels as well as an area for food storage and preparation and a treatment area. On my inspection, I observed that some of these facilities have already been established and three greyhounds were being housed within separate kennels. Although un-occupied during my inspection, a larger enclosure is also apparently used at times to accommodate the puppies and the kitchen and treatment room have also been set up in this building.

14 The stables building has a concrete floor and large roller shutter doors on the eastern and western sides. It is proposed to permanently close the eastern door with main access to be from the west. A lean-to presently used for storage is annexed on the south side and also allows access to the proposed kennel area.

15 The plans also indicate that day yards and 'empty yards' are to be provided on the west and south of the kennels. All of these facilities are to be enclosed with fencing. The fence is to be constructed of chain wire mesh except on the east side which is to be solid metal.

16 Other outdoor facilities proposed include an exercise yard and puppy yards. These are located to the west of the kennels. These yards would allow dogs to spend short periods of time outdoors. I was told at the hearing that each dog would also be walked on the former trotting track on a leash and muzzled for 30-40 minutes per day. The exercise yards would also allow dogs to be exercised within a fenced enclosure in parallel runs.

17 Although the plans do not provide details of any acoustic attenuation measures, Mr McCaffrey submitted that necessary measures would be implemented. He tabled an acoustic report at the hearing which I will discuss in more detail shortly.

18 The land and other properties in Hillview Drive are located within the Rural Living Zone ("RLZ"). Land to the north, east and further west is included within a Farming Zone.

19 Schedule 1 applies to the RLZ which requires a minimum lot size for subdivision of 40 hectares.

20 The zone purposes are:

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

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To provide for residential use in a rural environment.

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To provide for agricultural land uses which do not adversely affect the amenity of surrounding land uses.

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To protect and enhance the natural resources, biodiversity and landscape and heritage values of the area.

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To encourage use and development of land based on comprehensive and sustainable land management practices and infrastructure provision.

21 The proposed use is encompassed within the definitions of "animal keeping" and "animal training".[1] These are uses that require a planning permit in the RLZ.

22 A planning permit is also required for buildings and works associated with a Section 2 use.

23 Decision guidelines are set out under Clause 35.03-5 and these are require a consideration of:

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General issues, including state and local planning policies, the capability of the land to accommodate the proposal and whether the proposal is compatible with adjoining and nearby land uses.

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Agricultural issues including the potential for future expansion of the use or development and the impact of this on adjoining and nearby agricultural and other land uses.

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Environmental issues in particular any impacts on soil and water quality and the emission of noise, dust and odours.

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Design and siting issues including the visual impact of development and whether the use and development will require traffic management measures.

24 There are no overlay controls affecting the land.

25 The parties referred me to a number of state and local planning policies and I have taken them into account. Policies of particular relevance are:

SPPF

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Clause 15.05 - Noise abatement

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Clause 16.03 - Rural living and rural residential development

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Clause 17.05 - Agriculture

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Clause 21.03 - Rural Living

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Clause 21.06 - Municipal Vision and Strategic Framework - Fostering Diversity

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Clause 21.07-3 - Sustainable Rural Land Management - Rural Living, Environmental Living and Agricultural Landscapes

26 Clause 65 sets out decision guidelines that must be considered, as appropriate, when considering any application for permit under the Planning Scheme including the State and local planning policy provisions referred to above, the purpose of the zone and other relevant controls, the orderly planning of the area and any effect on the amenity of the area.

27 The parties at the hearing of the application for review relied on both written and oral submissions. A number of photographs, plans and other documents were tendered to the Tribunal and are retained on file. I also conducted an inspection of the site and its locality. I set out my findings in relation to the key issues in this Application, having regard to these submissions, the material presented at the hearing, my inspection of the site and surrounds and the policies, objectives and decision guidelines of the Scheme.

28 Both the Council and Mr McCaffrey referred me to numerous Tribunal decisions dealing with proposals for similar uses. I have taken them into account.

Is this an appropriate location for this proposal?

29 The Council, Mr Coulthard and Mrs O'Toole expressed concerns with the proximity of the proposal to dwellings within Hillview Drive. It was submitted that insufficient buffer distances would be provided between the kennels structure, outdoor holding and training areas and neighbouring dwellings. Noise from barking dogs was cited as the primary concern, potentially impacting upon the quiet, peaceful rural residential lifestyle enjoyed by neighbours. Mrs O'Toole submitted that this was already occurring with the number of dogs already present on the review site. On this point it was the Council's submission that greater weight ought to be given to the legitimate residential amenity expectations of residents living in a Rural Living Zone as distinct from other zones such as the Rural Zone. Concerns were also raised about the potential for dogs to escape from the site.

30 These parties also drew my attention to various errors with the application plans. The plans are not drawn to scale, incorrectly depict the location and orientation of buildings including the kennels structure on the review site, and incorrectly state setback dimensions of various buildings from boundaries. In the latter case, Mrs O'Toole's house on the neighbouring site to the east is shown with a setback of 40m from the common boundary when in fact the dimension is nearly half that at about 21m.

31 Mr McCaffrey accepted the shortcomings with the plans. Based on aerial photography, he provided me with the following details of dwelling setbacks from the kennels structure which I accept as being reasonably accurate:

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110 metres - O'Toole (No. 119)

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160 metres - dwelling opposite

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360 metres - Franze (No. 78)

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500m - Coulthard (No. 68)

32 In forming my view about the adequacy of these separation distances I have considered the Environment Protection Authority's Noise Control Guidelines ("the EPA Guidelines"). Reference was also made by the parties to the Code of Practice for the Greyhound Industry, June 2005 prepared by Greyhound Racing Victoria ("the Greyhound Code").

33 In broad terms parties opposed to the proposal highlighted the degree to which this proposal would not comply with the buffer distances suggested in the EPA Guidelines. Section 14 of this document makes the following comments:

The problems caused by the perpetual barking of dogs has been known to exist at distances as far as 500m from the actual source. The following criteria for dogs kennels have therefore been assembled to limit both the physical stimuli to the dogs as well as the outbreak of noise from the kennels.

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Locating the kennels least 500m away from residential areas;

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Incorporation of noise attenuation materials into the design of kennels;

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The construction of kennels to visually screen stimuli such as other dogs, animals, traffic or passers-by.

35 In response, Mr Mc Caffrey drew support from the Greyhound Code which suggests that kennels be located a minimum of 50m from neighbouring dwellings and 10m from boundaries for proposals involving between 6 to 20 dogs. The proposal would achieve compliance with these minimum buffer distances.

36 Although the Greyhound Code has been prepared with the input of various stakeholders including the EPA, it is not a referenced or incorporated document in the planning scheme. The "foreward" to this document explains that the Greyhound Code is being trialled until June 2006 and that "The code will be refined in the light of operation over the period and comments received as to the effectiveness of the code". Following that process, Greyhound Racing Victoria will seek the code's inclusion in the Victoria Planning Provisions.

37 Given the current status of the Greyhound Code, I am unable to give it the weight of a 'seriously entertained proposal' at the present time.

38 At the hearing, an acoustic report[2] was tabled by Mr McCaffrey. It suggests various acoustic techniques for the kennels such as lining the kennels structure with plywood.

39 I find that I can give this report little weight. The author was not called to give evidence. The report was prepared on the basis of the application plans which contain inaccurate information about the location of the proposed facilities in relation to neighbouring dwellings. There is no indication in the report that the author inspected the site. No information is provided in relation to the likely impacts upon neighbours as a consequence of noise emanating from barking dogs whilst outside the kennels. Ventilation of the kennels would be required but no acoustic techniques to contain the escape of noise from this element are provided. Nor have any details been provided in relation to existing background noise levels.

40 While I accept that there are acoustic techniques available to minimise the transmission of noise from barking dogs, there remains a considerable degree of uncertainty about the ability of this proposal to achieve satisfactory outcomes in the particular circumstances of this case. I am unable to conclude that the requirements of the EPA's SEPP N-1 can be met, particularly at night.

41 Mr McCaffrey submitted that the number of dogs being kept was at the lower range of intensity and that greyhounds have a relatively docile nature compared with some other breeds. These factors should be taken into account when assessing the adequacy of buffer distances.

42 I generally agree with these observations. I am not however persuaded that an adequate buffer will be provided between the kennels, various outdoor areas and existing dwellings for a number of reasons.

43 Firstly, the proposal has buffer distances falling well short of the 500m suggested under the EPA Guidelines. While I acknowledge that the EPA Guidelines are not mandatory in nature I do however think it very relevant that there are 4 properties within a 500m distance of the kennels. In particular, I am concerned about the very limited setback between the O'Toole's dwelling (21m to the common boundary and 110m from the kennels). I do not think this distance provides an appropriate buffer. I have similar reservations about the dwelling opposite just 160m away.

44 Secondly, while I agree with Mr McCaffrey that the proposed use is a legitimate one in this zone, the off-site impacts of that use must also be balanced against the amenity expectations of residents living in this court location given the Rural Living Zone - a zone which applies to the review site and all other properties in Hillview Drive. Those expectations are higher than what might be reasonably expected in other rural zones such as the Rural Zone or Environmental Rural Zone.

45 Unlike these other two zones, and indeed any of the other rural zones, the purposes of the RLZ make specific reference to residential use, that is:

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To provide for residential use in a rural environment.

46 Moreover, decision guidelines in the RLZ at Clause 35.03-5 under the heading 'General Issues' require a consideration of:

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Whether the site is suitable for the use or development and whether the proposal is compatible with adjoining and nearby land uses.

47 I take "adjoining and nearby land uses" to include residential uses as in the present case. I find that at the buffer distances proposed, the proposal has the potential to be incompatible with the residential use of adjoining and nearby land.

48 Thirdly, local policies lend support for the maintenance of rural residential lifestyles in certain locations within the Shire. Mr McCaffrey suggested that it is relevant that the Schedule to the RLZ requires a minimum lot size of 40 hectares for subdivision and as-of-right dwelling uses.[3] This, he argued gave support to his proposition that this area is more akin to a true rural zone rather than a rural living environment.

49 I find that I am unable however to agree with this submission for two reasons.

50 The existing lot sizes, siting of dwellings and rural lifestyle type nature of surrounding properties in Hillview Drive bear the hallmarks of a Rural Living zoned environment compared with the characteristics of a Rural Zone. As I have mentioned lots are generally in the range of 15 to 20 hectares and dwellings are typically clustered close to the road frontage. There are at least 5 dwellings in the street and although unsealed, the road is configured to end in a cul-de-sac. Agricultural activity is limited.

51 In addition, local planning policies differentiate between the northern and southern parts of the shire - with the south having a greater emphasis on rural living opportunities and the provision of attractive living environments which offer lifestyle choice.[4]

52 This theme is strengthened by policies at Clause 21.07 which identifies that in the southern part of the Shire, around Gisborne and Riddells Creek,[5] rural residential development may be supported because:

... much of the area is already fragmented into such land use and low density rural residential development will also form an attractive buffer and green belt between the balance of the Shire and metropolitan Melbourne. Council is also keen to accommodate some of the demand for this form of development in the Shire to support population growth.

53 This policy, under the heading "What do we want to achieve?" contains the statement:

Attractive and sustainable rural living development that provides for a range of lifestyles from low density development to part time farming.

54 Thirdly, I have reviewed the nine decisions made by other members of the Tribunal, variously relied upon by the Council and Mr McCaffrey either in support of or against the proposal. I have found that the circumstances of this case can be distinguished from each of those other cases having regard to a combination of factors including the applicable zoning at the time (none involved the Rural Living Zone), the nature of surrounding land use, the location of the nearest dwellings and the number of dwellings located within 500m of the proposed use. In particular, I make the following observations about the three cases referred to by Mr McCaffrey:

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Reynolds v Macedon Ranges SC[6]

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Jones v Bass Coast SC and anor[7]

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Innes v Moorabool SC[8]

55 In the Reynolds case (an application involving 15 dogs), the site was within an Environmental Rural Zone and the nearest dwelling was within 280m and 330m of the proposed exercise yard and kennels respectively. These buffer distances are double that which are proposed in the present case. In directing the grant of a permit, Senior Member Baird also distinguished between the residential amenity expectations of residents in the Environmental Rural Zone compared with the Rural Living Zone, commenting that:

[23]... The subject site is within an Environmental Rural Zone, not a Rural Living Zone where residential use in a rural environment is provided for. The Environmental Rural Zone places particular emphasis on environmental values and specifies an environmental outcome that is sought. ...While the locality has some features of a rural living area (given that a number of dwellings are sited relatively close to one another and as many nearby lots appear smaller than the minimum lot size in the Zone), amenity expectations must be considered in the context of the purpose of the Zone and the policy intent that emphasis rural activities while protecting flora, fauna and landscape values.

56 In the Jones case, the application involved the keeping and breeding of 32 greyhounds. Senior Member Baird directed the grant of a permit. The nearest house was within 200m-210m from the proposed kennels. That site was in a Rural Zone within a different land use context supporting a mixed range of uses. Surrounding uses in the immediate environs included cat and dog boarding kennels for 100 animals, a free range poultry farm, grazing and sand blasting activities. This mixed use context is to be distinguished from the rural residential lifestyle nature of surrounding land uses within a court setting.

57 In the Innes case, Member Quirk directed the grant of a permit for 10 greyhounds. That site was within an Agricultural B/Rural Zone. I note that the rezoning of the land to a Rural Living Zone was contemplated at the time of the hearing but the determination drew support from the 200m separation of the kennels from the nearest dwelling, the relatively small size of the operation, the number of existing establishments in the area on lots similar in size to the review site (2ha), the absence of any proposed dog breeding and mating, the presence of stands of trees on the roadside and distinct changes in level between the review site and the nearest dwelling.

58 The temperament of greyhounds, said to be relatively docile animals, was also a matter which weighed in support of the grant of a permit in the Innes case. As I have mentioned, that is also a matter which I have taken into account. I find however that the proposed limited buffer distances in this case, the number of dwellings within 500m, the Rural Living Zone and the reasonable amenity expectations of residents living nearby are factors that weigh more heavily against the grant of a permit. While I also accept that some additional planting could be provided within the review site along the boundary in common with the O'Toole's property (a matter to which I will return shortly), I do not think that this measure outweighs these other zoning and separation considerations.

Visual impacts, waste disposal arrangements and traffic related considerations

59 Mrs O'Toole expressed concerns about the visual impact of the solid fencing proposed between the kennels and her property as well as the impact of proposed screening vegetation. It was said that these features would obstruct open views to the Macedon Ranges. A further concern expressed by objectors was the ability for vegetation to become established given climatic and soil conditions which are said to be harsh as well as the reliance on dam water.

60 In terms of the visual impacts arising from the proposed works, I do not regard these matters as fatal to this application. There is no lawful right to a view and in any event I do not regard the nature of these features as being so out of character with the surrounding environmental as to be unreasonably intrusive.

61 In relation to the ability for vegetation to become established, I note that extensive tracts of new plantings are proposed (1000 trees or plants) and would be necessary to assist in screening visual stimuli that might cause dogs to bark when they are outdoors.

62 It is apparent that some vegetation has been established on both the review site (mainly around the existing house) and along the common boundary including planting by the O'Toole's on their side of the fence. Vegetation in the area is however relatively sparse and I would reasonably anticipate that any new plantings would take some time to become established. Although there was no evidence before me on this matter and the ultimate choice of species will be a factor in determining rates of growth, I am nonetheless concerned about the time such vegetation is likely to take before growing to become an effective screen. The issue becomes more critical given the extensive nature of screening proposed around the site perimeter and various outdoor holding yards.

63 Mrs O'Toole also expressed concerns about the potential for unpleasant odours arising from the hosing down and storage of waste from the kennels. A waste water pit (evaporation pit and trenches) and composting facility (worm farm) are proposed for the management of waste. The plans indicate that the pit and trenching is proposed on the west side of the sheds although on my inspection it was apparent that a temporary pit appears to have been established on the east side.

64 Wherever located, I have some reservations about the reliance on evaporation as the means of waste disposal, particularly in the winter. I do think however that a closed tank and piped system could be designed and constructed to achieve a satisfactory outcome that avoids the potential for nuisance from odours.

65 Mr Coulthard expressed particular concerns about the impacts of additional traffic given the unsealed surface and rural design of local roads. I do not think that traffic generated by this proposal would be so great as to create unreasonable traffic related impacts.

66 On balance, I have come to the conclusion that this proposal would not be acceptable given the minimal buffer distances proposed within an area zoned Rural Living where expectations of reasonable standards of residential amenity have a very legitimate role to play when considering proposals of this kind.

67 At the conclusion of the hearing I asked whether the permit applicant would consider reducing the number of dogs to reflect his current ownership of three adult dogs. The permit applicant declined that proposal preferring instead to evaluate the options available to him pending the outcome of this decision.

68 I will direct that no permit is to issue for the reasons I have set out.

[1] See Clause 74 of all Victorian Planning Schemes including the Macedon Ranges Planning Scheme.

[2] Report prepared by John Upton of Shelburg Acoustics. Report dated 21 August 2006.

[3] This is to be compared with the 8 hectare default position for lot sizes under Clause 35.03-3.

[5] Which I take to include Clarkefield which is in the south part of the Shire and east of Riddells Creek.

[6] [2001] VCAT 2228

[7] [2000] VCAT 2285

[8] [1999] VCAT 1719