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That the application must be refused under s61(4) P & E Act, because the grant of the permit would authorise development which would result in a breach of the registered restrictive covenant burdening the land and no permit has been issued (or even sought) to allow the removal or variation of the covenant.

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That a permit should not be issued for the development as the scale and layout of the development is inconsistent with the character of the Low Density Residential Zone and will cause serious adverse amenity impacts for existing and future residences in the locality.

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That in the event that a permit were to be issued the conditions as proposed by Council are manifestly inadequate to address the amenity impacts on existing and future residences in the locality.

2 The subject site is a rural residential area located immediately to the east of Sale. Lot sizes at the time of subdivision were approximately 1 hectare in part of the estate containing the site. The Tribunal was informed that there had been come recent subdivision in the area reducing the lot sizes to the lesser area permitted in the zone. The site at present contains a large brick house and a colorbond shed together with a number of yards which are intended to be used for the exercise of dogs. The site is located at the end of a cul-de-sac and slopes down towards a drainage reserve in the north-east corner.

3 The permit applicants wish to keep five greyhounds on their property. The dogs will be housed and exercised on the property. It was the applicants' contention that any racing training will be done at the Sale Greyhound racing facility on the Maffra Sale Road.

4 The subject site is located in the Low Density Residential Zone. The provisions of the zone are that a permit is required for the keeping of more than two animals with up to five animals being a Section 2 use. There are two overlays affecting the subject site DDO6 and DPO1, however neither of these have any relevance to the proposal.

5 The MSS at 21.04 with respect to settlement locates the site within an area promoted for rural lifestyle development and contains among its strategies the following:

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To promote future low density residential development in this locality; and

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To improve residential amenity especially in and North Sale (areas) by requiring landscape improvement works, open space provision, retention of native vegetation, high quality subdivision, building design and orientation.

6 Application was made on 9 January for the keeping of up to five greyhounds in accordance with the Act for racing dog keeping. It was argued on behalf of the objectors that the use had commenced unlawfully in that the applicant has had up to four greyhounds on the site at times without having a permit. It was Council's submission that when the owner was alerted to this he removed two dogs from the site.

7 The facilities include the dog cages inside the shed, four day spelling yards (5 x 5m); two day spelling yards (10 x 5m), two exercise/puppy yards (49 x 4m) and one exercise yard (80 x 10m). The applicant acknowledged that this was more than the minimum necessary for the dogs but argued that proper management of the dogs in this area required them to be moved from time to time to let yards previously occupied recover. In any event it seems to the Tribunal that no permit is required for the construction of these yards on the land.

8 Mr McKenzie for the applicant's for review argued that the proposal would be in breach of the registered covenant on the land. The covenant was created by the registration of the transfer AC9176371 on 11 June 2004 when the site was purchased by Mr & Mrs Caruana. The covenant specifically says that the owners of Lot 7 will not:

permit the lot or any part thereof to be used for the purpose of commercial breeding or boarding or of training kennels for cats or dogs or for the purpose of keeping poultry or pigeons thereon.

9 The argument put by Mr McKenzie was firstly, that the restriction was with respect to two matters: the use of the land for commercial breeding or boarding and the use of the land for training kennels. He put it to the Tribunal that the proposed development included training in that the dogs kept on the property would be from time to time in training and would need to be kept fit by proper exercise. It was Mr Caruana's contention that training kennels required much more extensive facilities than he was providing on this property, including a300 to 400m straight track, dog runs of at least 100 to 150m in length and a 400m circle training track. I accept that this is indeed the case and that the facilities provided on the site for dog exercising fit those required to keep the dogs in good health and not to train them for racing performance.

10 Mr McKenzie further argued that if it was accepted by the Tribunal that the restriction on the covenant was for commercial training kennels then it could be argued that the proposed development fitted this characterisation. Given the Tribunal's decision above this matter is no longer relevant.

11 The Greyhound Code of Practice categorises greyhound premises as follows:

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Category 1 - the small domestic scale facility;

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Category 2 - a small to medium sized hobby establishment;

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Category 3 - a major commercial establishment.

12 Category 1 premises is defined in the Code as essentially a kennelling facility housing from one to five adult dogs, with some limited rearing of pups but generally no more than one litter a year. The maximum number of adult dogs to be housed being five. The nature of the facilities includes day kennels for the dogs and small day yards. The premises that fall within this category do not train dogs on site.

13 Mr McKenzie argued that the applicant did not intend to operate a small scale facility. In my view this is an argument that cannot be sustained. The permit applicant wishes to keep five dogs on an allotment that is somewhat larger than the residential allotment suggested for a Category 1 facility and will in fact be a lesser operation than is permitted for such a facility in that it has been agreed that no litters will be bred on the land.

14 Noise was also raised as an issue with respect to the dog keeping. It was Mr McKenzie's submission that neighbours had been disturbed by noise from the dogs on this property when there were only two or may be four dogs on the land. This information needs to be treated with some caution as it seems some neighbours keep dogs. Greyhounds are in addition kept in a more regulated environment than is the case with other dogs.

15 The Greyhound Code of Practice has specific setback requirements for accommodation facilities. The Code of Practice states with respect to kennels with not more than five dogs that the boundary separation should be 1m and the distance from the nearest dwelling 10m.

16 Mr McKenzie argued that the more appropriate separation distance were those required for a training facility where the exercise yards needed to be 25m from the boundary and 100m from the nearest dwelling. The Tribunal has already determined that the proposed facility is not a training facility and therefore these separation distances do not apply.

17 It was also argued that recommendations contained in the EPA Noise Control Guidelines July 2002 of a 500m buffer distance between kennels in residential areas should be applied as well as a series of other amelioration measures. It is my view that the EPA Guidelines were not intended to apply to a property with just five dogs and is more specifically directed at larger agglomerations of dogs in boarding kennels and the like where the dogs are strangers to the environment and each other.

18 The Greyhound Code of Practice requires compliance with the State Environment Protection Policy N1 for noise emissions. This is a requirement that must be met. It would be my view that additional measures will not be necessary with respect for the present proposal to meet the requirements, however if they were, they would have to be put in place.

19 Mr McKenzie quoted a number of cases before the Tribunal where proposals for greyhound keeping had been refused, each of these applications involved more than five dogs and therefore did not fall within the Category 1 facility. As a consequence they do not provide very useful guidance with respect to the present application.

20 Mr McKenzie raised a number of other issues with respect to site security and lighting, drainage and shading of pens. These are in the Tribunal's view relatively minor matters that either are excessive in the context of five dogs (site security and lighting) or were in the case of the sloping floors and collection drains in the shed not demonstrated not to be present and with respect to shading, something that could readily be done at any time.

21 Mr McKenzie provided the Tribunal with a list of conditions which he considered would be appropriate if a permit were to issue. The Tribunal finds that this set of conditions is generally excessive in the context and notes among other things that the Greyhound Code of Practice does not restrict feeding and exercise of dogs for properties with less than five dogs.

22 In conclusion the Tribunal is of the view that the permit should issue. It is my view that the response to this application is somewhat excessive in circumstances where the keeping of greyhounds is strictly controlled and there are no equivalent controls on other domestic dogs. Also in this particular area a lot of the size of Mr Caruana's if subdivided would be able to accommodate four dogs as of right.