Victorian Civil and Administrative Tribunal|2006-06-13

Kirkham v Cardinia SC [2006] VCAT 1146 (13 June 2006)

Application under Section 77 of the Planning and Environment Act 1987 (the Act) to review a decision to refuse a permit. Green Wedge Zone. Land Subject to Inundation Overlay. Restructure Plan Overlay. Animal keeping. Noise. Conditions to control off site amenity impacts.

The decision of the responsible authority in permit application no. T050216 is set aside.

A permit is granted in relation to land at 360 Lone Pine Road, Garfield. The permit will allow the use of the land for the purpose of animal keeping and buildings and works associated with the extension to an existing building, generally in accordance with the endorsed plans and subject to the following conditions:-

1 The development must not be commenced until three (3) copies of amended plans have been submitted to and approved by the Responsible Authority. The plans must be drawn to scale and dimensioned in metric and must be generally in accordance with the submitted plans but modified to show:

(a) Elevations of the proposed extension to the shed used to house the greyhounds, including the specification of construction materials to be used for noise attenuation as recommended in the Noise Assessment Report prepared by Mr Paul Walsh, Acoustical Engineer as circulated by Macpherson + Kelly Lawyers Pty Ltd under cover of letter dated 25 May 2006.

(b) A landscape plan, prepared by a landscape architect or person approved by the Responsible Authority as having sufficient competence in that field showing species, locations, approximate height and spread of proposed planting and the retention of existing trees and shrubs, the landscaping must be designed to visually screen stimuli such as other dogs, animals, traffic or passers-by to the satisfaction of the Responsible Authority.

2 Noise attenuation must be implemented to the satisfaction of the responsible authority in accordance with the Noise Assessment Report prepared by Mr Paul Walsh, Acoustical Engineer as circulated by Macpherson + Kelly Lawyers Pty Ltd under cover of letter dated 25 May 2006. The required works relating to the existing shed must be completed within six months of the date of this permit or some other time agreed to in writing by the responsible authority. The required works relating to the extension of the shed must be implemented at the time of the construction of the extension.

3 Prior to the commencement of the use a Site Management Plan, detailing pollution and sediment control measures, must be prepared to the satisfaction of the responsible authority.

4 No polluted and/or sediment laden runoff is to be discharged directly or indirectly into Melbourne Water's drains or watercourses.

5 Unless otherwise agreed in writing by Melbourne Water, finished floor levels of the extension to the kennels and the existing kennels must be a minimum of 600mm above the natural surface level.

6 Any new garage, carport or vehicle parking area must be constructed with finished floor or surface levels a minimum of 300mm above the natural surface level.

7 The layout of the site and the size of the proposed buildings and works, as shown on the approved plans, must not be altered or modified without the consent in writing of the Responsible Authority.

8 By no later than one month after the treatment of the shed as required by Conditions 1(a) and 2, the permit holder must demonstrate that the noise emitted from the premises complies with State Environment Protection Policy (Control of Noise from Commerce, Industry and Trade) No. N-1 to the satisfaction of the Responsible Authority.

9 Noise emitted from the premises must thereafter continue to comply with State Environment Protection Policy (Control of Noise from Commerce, Industry and Trade) No. N-1 to the satisfaction of the Responsible Authority.

10 No more than ten dogs are permitted to be exercised or run outside the acoustically lined shed and kennels at any one time. A maximum of five dogs are permitted to use the exercise area and the greyhound runs at any one time.

11 Exercise of the dogs may only be performed within the hours of 8am - 8pm seven (7) days a week.

12 No more than twenty (20) greyhounds may be kept on the property at any one time.

13 Feeding of the dogs must be carried out within the shed housing the greyhounds.

14 The kennels as shown on the approved plan must be kept in a clean and sanitary condition at all times.

15 The use allowed by this permit must not cause a nuisance or loss of amenity to any person or livestock. Noise from dogs must be kept to a minimum with suitable supervision of the dogs to the satisfaction of the Responsible Authority.

16 The buildings must be provided with suitable drains of an impervious type laid to a self-cleansing gradient. All drains are to be maintained in good order and condition and are to discharge to an approved outlet.

17 All wastewater generated at the premises must be treated and contained on site in accordance with the Septic Tanks Code of Practice (EPA Publication 891, March 2003) and Council requirements.

18 All solid waste generated at the premises from the use must be collected and stored in an enclosed container prior to disposal off site. No composting of waste material is permitted on site.

19 A resident manager must be in attendance at all times and must ensure that the property is maintained and that the kennels are controlled to the satisfaction of the Responsible Authority.

20 This permit allows the use of the land for the purpose of keeping twenty (20) greyhounds by Mr and Mrs Kirkham or by a person with appropriate experience in the management of greyhound keeping to the satisfaction of the Responsible Authority.

21 All stormwater must be conveyed by means of drains to satisfactory points or areas of discharge approved by the Responsible Authority so that it will have no detrimental affect on the environment or adjoining property owners.

22 The loading and unloading of vehicles must always be carried on entirely within the site and must not interfere with other traffic.

23 This permit will expire if:

(a) the noise attenuation works in Condition 1(a) are not commenced within three (3) months of the date of this permit; or

(b) the noise attenuation works in condition 1(a) are not completed within six (6) months of the date of this permit

The Responsible Authority may extend the periods referred to, if a request is made in writing before the time period stated expires.

The responsible authority is directed to issue a permit in accordance with this order under the provisions of Section 85(1)(b) of the Planning and Environment Act 1987.

Mr Ragu Appidurai of Counsel instructed by MacPherson & Kelley Solicitors.

Mr Apidurai called Mr P Walsh, acoustic engineer and Mr F Kirkham, the applicant for review, to give evidence.

1 This is an application to review the decision of the responsible authority to refuse permission for the use and development of land at 360 Lone Pine Road, Garfield for animal keeping (20 greyhounds). The responsible authority issued a Notice of Refusal to Grant a Permit for the following reasons:

The proposal is out of character with the development of adjoining land.

The proposal would be detrimental to the amenity of the surrounding area.

The proposal is contrary to the objectives of Clause 15.05 of the State Planning Policy Framework.

2 At the commencement of the hearing Mr Apidurai applied to amend the permit application by including reference to the extension of the existing shed which is required to accommodate the 20 greyhounds for which permission is being sought. A permit is required for buildings and works for the shed extension under the provisions of the Restructure Plan Overlay which applies to the land. No person opposed the amendment of the permit application in this way, and I ordered the amendment of the permit application in accordance with Mr Apidurai's request.

3 At the conclusion of the hearing I gave oral reasons for my decision to set aside the decision of the responsible authority and direct the grant a permit. A summary of my reasons are set out below.

4 I note that the site has been used for the keeping of 13 greyhounds for many years, although a permit has never been issued for the use. The submission of a planning permit application was made after a series of complaints were made about a number of animal keeping establishments in the general vicinity of the review site. It was unclear whether specific complaints had been made about this site. Mr Vistes was adamant that they had been. Mr Kirkham was unaware of any complaints.

5 The grant of a permit is now sought to authorise the existing use and to increase the number of dogs currently kept on the site to 20. The increase in the number of dogs will necessitate an extension to the existing shed which houses the dogs.

6 I did not receive any submissions to the effect that the proposed use and development is inappropriate to the zone and to the overlays applying to the land, or that it is an inappropriate use of the site. The issues in dispute relate to the nature of the conditions required to control the potential off site amenity impacts associated with the use. I record my findings that I consider that the proposal is a suitable use and development of the land having regard to its site context and the provisions of the Green Wedge Zone, the Land Subject to Inundation Overlay and the Restructure Plan Overlay.

7 With respect to the appropriate permit conditions, I have had regard to the draft conditions provided to the Tribunal by the responsible authority and the submissions and evidence of the parties.

8 I have directed that the permit contain the conditions included in the draft conditions provided by the responsible authority, subject to the following modifications:

i

Condition 1(a) must be amended to refer to the extension of the existing shed.

ii

A condition clarifying that the works recommended by Mr Walsh must be implemented in both the existing shed and the shed extension has been included. The works required for the existing shed must be completed within six moths of the date of the issue of the permit. This appears to have been the intent of conditions 1(a) and 24 of the council's draft conditions, and this intent has now been clarified by the inclusion of a new condition no.2

iii

Melbourne Water's condition requiring the kennels to be 600 mm above natural surface level must be amended to refer to the existing shed as well as the shed extension.

iv

A condition requiring the preparation of a site management plan has been included.

v

The condition limiting the number of dogs permitted outside has been amended to increase the number to 10. However a limitation on the number of dogs using the runs and the exercise yard at any one time has been retained

vi

The times in which dogs maybe exercised has been amended to 8 am to 8 pm.

vii

The condition requiring a video surveillance system has been deleted on the grounds that I consider it excessive and unnecessary having regard to the context of this site and in particular the limited number of sensitive uses located within close proximity to the review site.

viii

The condition limiting the permit to the current applicants has been amended to include provision for a person with appropriate experience in the management of greyhound keeping to the satisfaction of the Responsible Authority.

ix

The limitation on the inspection of the dogs by external persons has been deleted.

x

The limitation on the hours of dog feeding has been replaced by a condition requiring the dogs to be fed inside the shed housing the greyhounds.

xi

The condition requiring electronic masking noise devices has been deleted on the ground that compliance with other conditions is sufficient to ensure that an acceptable outcome is achieved in terms of limiting off site amenity impacts.

9 It follows from the above reasons that it is my conclusion that the decision of the responsible authority should be set aside and a permit granted.

Environment Act 1987

Kirkham v Cardinia SC [2006] VCAT 1146

At a glance

Court

Decision date

Source

Judgment (18 paragraphs)

Kirkham v Cardinia SC [2006] VCAT 1146 (13 June 2006)

Parties

Legislation Cited (1)