For Responsible Authority: Ms Nicole Stow of Beveridge Williams & Co.

For Permit Applicant: Mr Chris Drenen of Davine Fitzpatrick Solicitors

Objectors: Ms L Keene, Mr D Shanahan, Mr D Gleeson,

1 This is an Application for Review pursuant to Section 77 of the Planning and Environment Act 1987 against the decision of Latrobe City Council which refused Planning Permit Application No. 02345 for use and development of land at 284 Nuttalls Road Yinnar for dog breeding.

2 The Permit Applicant seeks approval to occupy a corrugated iron shed and use it for dog breeding purposes. Initially it was proposed to have up to 80 dogs on site, however during the application process this number was revised to a maximum of 55.

3 The dogs are proposed to be housed in a recently erected 15.6 by 10 metre corrugated iron shed which is located about 36 metres from the subject site's northern boundary. The shed has a concrete floor and will ultimately contain 26 dog pens each measuring about 4 metres by 1.2 metres. An open exercise run is proposed to be located adjacent to the western wall of the shed. This would be about 20 metres in length and 10 metres in width and delineated by a 1.8 metre high chain mesh fence and corrugated iron internal walls.

4 All effluent from the shed is to be directed to an existing septic tank system. The Tribunal was told at five weeks of age, a Vet would visit the site to check, vaccinate and worm pups. At seven weeks of age a wholesaler would visit the site to pick up the pups for sale by retail.

5 The subject site is known as Lot 1 on Plan of Subdivision 119970, Parish of Narracan South. The site is irregular and elongated in shape. It has a frontage of about 96 metres to Nuttalls Road and an overall area of 20.52 hectares.

6 The site contains a single storey dwelling, farm machinery and sheds, and the subject corrugated iron shed used to house dogs. The buildings are clustered together in the eastern third of the property and are accessed directly from Nuttalls Road via a concrete driveway. Two dams are located to the west and south of the buildings. The balance of the land is predominantly cleared, covered in pasture and used for deer farming.

7 Adjoining sites comprise a rural residential property to the north occupied by the Perrys. The dwelling on this property is located some 400 metres north-west of the dog shed. Further to the north is a smaller rural residential property occupied by Ms Keene and Mr Shanahan. Whilst being separated by the Perrys property, the dwelling is about 200-250 metres away. Immediately to the south is a property owned and occupied by the Gleesons. They reside in the existing dwelling on the site with the balance of the land used for grazing (agistment purposes).

8 Nuttalls Road commences at the intersection with Monash Way extending for a distance of about 2.5km before narrowing to a single car width bridge as it crosses over the Morwell River. The road then turns in a southerly direction and provides access to the subject site and the Objectors' properties. The road is surfaced in gravel.

9 The subject site and all surrounding properties and zoned Rural under the La Trobe Planning Scheme. Dog Breeding falls under the land use term "Animal keeping" which is defined as:

Animal keeping that involves more than 5 animals is a Section 2, permit-required use in the Rural Zone. It is noted that a permit is also required to construct a building or carry out works associated with a Section 2 use.

10 The Tribunal was told the site is located in a State Resource Overlay, however that matter was not relevant to the consideration of this application.

11 There are various policies referred to at the hearing. These include:

Under the Environ Policy the following objective for noise abatement applies:

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

* Clause 21.04 Balancing conflicting land uses which seeks:

"To ensure that new development is not undertaken in such a way to compromise the effective and efficient use of existing or future infrastructure or resources such as the airport, coal resources, timber production and high quality agricultural land."

12 Ms Stow referred to the background of the application which was not contradicted (and in fact was acknowledged by the Applicant). This stated:

The permit applicant constructed the corrugated iron shed on the site and commenced using it for dog breeding purposes without the benefit of planing permission.

Council was made aware of the illegal land use as a result of noise complaints from the neighbours. The matter was investigated and a planning permit application was subsequently lodged.

During processing of the application, Council Officers inspected the site and discovered 13 unregistered dogs housed within the existing corrugated iron shed. Under Latrobe City Council's Local Law No. 2, no more than 3 adult dogs may be kept on a rural property without first obtaining a local laws permit or planning permit. Subsequently, the permit applicant was fined by Council for failing to register the dogs under the provision of the Local Law."

13 At the review hearing all parties made submissions with the Responsible Authority and Mr Drenen providing detailed written submissions. Mr Perry supplemented his oral submission with photographs of the dog shed taken from his property to demonstrate its proximity and a list of times when he had noticed dogs barking from the subject premises.

14 At the review hearing the Tribunal was provided with an array of information including planning scheme controls and policies, background information about the current use including photographs of the subject site and surrounding properties, locality plans, copies of documentation attached to the application, zoning plans and EPA Technical Guidelines regarding noise control and a copy of VCAT Decision Snyder v Wellington SC (2001) VCAT 1661 (3 August 2001). In addition the Tribunal undertook an inspection of the subject site and Objectors' properties.

15 Ms Stow on behalf of the Responsible Authority argued the proposed use and development will have an excessively detrimental effect on the amenity of surrounding residents through increased noise and dust emissions. She claimed the Council shares the Objectors' view that the proposed land use and development will cause significant detriment. She referred to the Environmental Protection Authority Technical Guideline TG302/92 dealing with dog kennels and claimed that the section of the bulletin which deals with dog kennels states that problems caused by the perpetual barking of dogs have been known to exist at distances as far as 500 metres from the source. She advised that all existing dwellings in the adjacent allotments are located within 350 metres of the dog breeding shed and the proposal has the ability to cause significant detriment through the emission of noise. She referred to various recommendations of that technical bulletin to limit the physical stimuli to dogs as well as the emission of noise.

16 Ms Stow argued that the dog breeding shed is constructed out of corrugated iron and has been designed so that the upper half of the northern side wall is open. She claimed this allows noise to emanate from the building to the surrounding properties and therefore contributes significantly to the existing noise problems. She claimed that despite continual noise complaints from the Objectors, the Applicant has failed to address this situation. She claimed that although the Applicant had stated that sound proofing insulation will be installed within the shed, no details in the form of plans, specifications, etc have been presented to demonstrate how this will be achieved.

17 Ms Stow referred to the location of Mr Shanahan and Ms Keene's dwelling only 200 metres from the site and the dwelling owned and occupied by Mr and Mrs Perry. She claimed that the noise associated with the proposed use will have a detrimental impact on the existing amenity of nearby residential properties. She claimed that Council considered these cannot be adequately addressed by planning permit conditions.

18 Ms Stow also argued that the proposed use will result in an increase of vehicle movements along Nuttalls Road. She considered it highly likely that additional vehicle trips will be required by the Applicant to obtain food and other dog supplies. She claimed that the road was not of an adequate width or construction standard to accommodate vehicle movement in excess of the current level.

19 Ms Stow referred to the original concern about adequate waste disposal but advised that there had been problems with the discharge of effluent and was deemed a nuisance under the provisions of Part 111 of the Health Act and Council subsequently served notice on the Applicant on 4 August 2003 to abate the nuisance by disposing of the effluent discharge from the treatment tank. She claimed this matter had now been satisfactorily addressed and the Council did not wished to pursue this ground of refusal.

20 Ms Stow also argued that as the site is within a Rural area there were many properties working farm dogs and/or Planning and Environment Act 1987 dogs and it was likely these animals will be attracted to the site at times when bitches are in season. She claimed this may result in adverse impacts on livestock on surrounding properties.

21 Objectors concerns were principally raised about noise emanating from the shed used to house the dog kennels. Mr Perry was tabled a list of times since the end of August 2003 until the week proceeding the review hearing which identified numerous examples of problems experienced with noise from dogs on the premises. This included reference to attempts to contact the Council Ranger.

22 Ms Keene also raised concerns about noise including the need to move bedrooms and difficulty in leaving bedroom windows open due to the noise from barking dogs. She was concerned the proposal did not meet EPA Guidelines. She claimed they initially would not object if certain things were done including the planting of trees to prevent the view of the open shed, no increase in traffic and no retail sales of the dogs. She also expressed concern about the use of the shed and the proposed open run. She was concerned that the dogs could not be controlled.

23 Mr Gleeson raised concerns about the impact on the environment including pullusion of the river, the location of the building and expressed concern that other, larger dogs may be brought in. He expressed a view that the proposal would result in a devaluation in property values and there was a potential for loss of income if agisters ceased to use his premises for grazing/agistment purposes. Mr Gleeson also raised various potential health issues and claimed the proposed use was having an adverse impact on his own health. In summary he claimed this was dairy/grazing country and that the impact of 55 dogs was a large impact on the agricultural nature of the area.

24 Mr Drenen on behalf of the Permit Applicant acknowledged that the use had commenced without approval and the complaints about noise from neighbours. He advised he had instructed his client not to undertake any further building works or introduce further dogs until the matter had been considered by the Tribunal.

25 The Tribunal enquired whether Mr Drenen's client had been instructed by the Council to cease the use until such time as a permit had been granted. He advised he had not. There was some discussion about whether the Applicant had or had not been instructed to cease the use, but there was no evidence available to the Tribunal that the Responsible Authority directed the Applicant to cease the use.

26 Mr Drenen refuted a number of matters raised by the Responsible Authority and Objectors. He claimed the proposed location of the kennels was chosen due to the following factors:

(a) proximity to the dam and the available supply of water needed to ensure that the kennels are kept in a clean, hygienic and tidy state;

(b) the availability of power supplied from the adjacent machinery shed;

(c) ease of access from the main entrance to the Applicant's property;

(d) proximity to the Applicant's residence to allow close monitoring of the dogs;

(e) the lay of the land dictated where the kennels could be located.

27 He advised that six concrete panels, with a minimum height of six feet in height will border the exercise run adjacent to the proposed kennels. He claimed the solid concrete panels will have a twofold purpose. Firstly, the concrete panels will assist in noise attenuation and secondly, the concrete panels will also reduce the visual stimuli of the dogs. He claimed the applicant also proposed to plant trees and shrubs adjacent to the concrete panels in order to reduce any negative visual impact of the panels.

28 Mr Drenen responded to concerns about noise levels and claimed the kennels have been designed to address issues related to excessive noise levels. He claimed the kennels are constructed primarily of galvanised iron and chicken wire. He claimed it is proposed to remove approximately 90% of the chicken wire and to install glass windows in order to reduce noise levels and allow light to enter the kennels. He claimed the internal walls of the kennels will be clad in cement sheeting from floor level to a minimum height of 2.17 metres and plasterboard will then be installed to roof height. He claimed insulation and/or acoustic baffling will be inserted in the cavity between the wall and the cement sheeting and the wall and the plasterboard. Acoustic tiles will then be fixed to the plasterboard.

29 Mr Drenan claimed the following measures will also be undertaken to reduce noise levels:

(i) Installation of acoustic baffling as recommended by Dr Forbes;

(ii) Ensuring that the absolute maximum breeding dogs kept on the premises will not exceed fifty-five dogs at any one time.

(iii) Ensuring that the breeding dogs are only of small varieties, being mainly Maltese Terriers, Cavaliers and Shih Tzus.

(iv) Ensuring that exercising and feeding of the dogs will only occur at specific times, most likely between the hours of 6.00am and 7.00pm, depending on the works commitments of the Applicant. (He claimed the dogs do not generally bark when the Applicant is inside the kennels.)

(v) If required, an electronic sound device could be installed which activated when the dogs bark, (although he stated that the Objectors complained about the noise of the device when it was previously installed. He claimed the noise generated by the device was generally found to be more intrusive than the dogs barking )

(vi) Installing an automatic water sprinkling system.

30 Mr Drenen tabled correspondence from a Dr Hugh Forbes, a Veterinarian which outlined various measures to be undertaken. He claimed these would be undertaken in accordance with his recommendations.

31 With regard to complaints about the effluent disposal and veterinary chemical contamination of the adjoining water course, he claimed that Latrobe City Council personnel are now satisfied that measures taken with respect to effluent disposal are satisfactory. He outlined how these would be undertaken.

32 With regard to concerns about the effective breeding of bitches on heat attracting unwanted male dogs, Mr Drenan claimed that no evidence had been provided to support the contention that breeding bitches on heat will attract unwanted male dogs and it was submitted that the only dogs that have wandered on to the Applicant's property have been dogs owned by neighbours. He claimed this objection could not be sustained.

33 Mr Drenen conceded that traffic levels may increase in the immediate area as a result of the proposal, however he submitted that any increase will only be marginal and will not be detrimental to the area. He claimed that dogs to be bred at the Applicant's property will only be sold to wholesalers and not retailers or members of the public. He claimed it was envisaged that wholesalers will collect dogs only once per week, that is of course when the Applicant has dogs available for sale to the wholesaler. He claimed that the present they were only dealing with one wholesaler. This may increase.

34 Mr Drenen refuted criticisms about dust and emissions. He claimed the kennels will be constructed on a concrete base and it is proposed to construct the exercise runs with a central concrete access way and with nylon porous material being installed under several inches of course sand. He claimed pits will be installed in the runs to capture run off from rain and water from hosing down.

35 Mr Drenen argued that the Applicant proposes to fully comply with the Code of Practice for Dog Breeding and it welcomes the inclusion of conditions on any planning approval requiring strict compliance with RSPCA requirements and the Code of Practice pursuant to the Domestic (Feral and Nuisance) Animals Act 1994. In this respect Mr Drenen referred to the decision of Ms Moles in Snyder v Wellington Shire Council where conditions had been imposed on a premises which had commenced operations without a permit. He also advised that the draft Council conditions as circulated were acceptable to his client.

36 I consider the Responsible Authority's first ground of refusal has been substantiated particularly with reference to the impact on adjoining properties through the escape of noise.

37 I acknowledge that measures can be undertaken to properly control the escape of noise from dog kennels, however I am not satisfied that the Applicant has demonstrated that it has the expertise or understanding of the issue to properly institute measures necessary to deal with the escape of noise.

38 I was provided with no expert evidence concerning the existing acoustic treatment of the building nor qualified information about the proposed works and the effectiveness of such works in ameliorating the escape of noise from the shed.

39 Whilst I have examined the Snyder v Wellington Shire decision I note in that case the Responsible Authority had issued a Notice of Decision and the matter under review related to the conditions on permit. On that occasion Ms Moles did not expunge conditions relating to acoustic treatment of the dog kennel and I note that the Permit Applicant was prepared to have a western wall of that kennel constructed of brick.

40 In this case no plans or elevations of the shed were provided nor were any adequate construction details provided of the works to be undertaken to this shed. Most of the submissions made related to efforts needed to ameliorate existing noise and nuisance derived from the introduction of the dogs. I would have been assisted by the submission of acoustic measures and time frames for compliance with these provisions.

41 Whilst it would have been possible for the Tribunal to impose conditions to address a number of the concerns raised by the Responsible Authority and Objectors, I consider it is important to be satisfied that such conditions, if they are imposed, have a high likelihood of being met.

42 At the conclusion of his submission Mr Drenen referred to ways that the matter could be dealt with and claimed that if neighbours had complaints they could object or complain to the Council and the Council could take enforcement action. To a certain degree this is correct, but I must be satisfied that the conditions will in fact be met. In this regard I refer to Kaso v City of Coburg (1992) 9 AATR at 128 where the Tribunal stated:

"If we were satisfied that there was a real doubt, having regard to the past and continuing conduct of the applicant as to whether it would adhere to any conditions imposed or that it might otherwise breach the provisions of the Planning Scheme, we think it clear both as matter of principle and on previous decisions of the Appeals Board ... that the Tribunal could, in the exercise of its discretion, determine to allow the appeal and direct that no permit issue." (see also Smith v Shire of Flinders) (1983) 1 PABR 183, Hodgetts v Shire of Metcalf (1986) 26 APA 99; Bowman v Shire of Woorayl 12 VAPD 116.

43 In this instance I note the subject shed was erected, apparently without planning permission and was specifically developed for kennel use. It was occupied and has continued to be occupied for a period of over 12 months despite complaints of neighbours. There is strong evidence of noise disturbance to neighbouring properties including the documentation tabled by Mr Perry which was not disputed at the review hearing. At the conclusion of the hearing I inspected the subject premises Applicant's request, and detected more than five dogs within the building. It was quite clearly in breach of the Planning Scheme.

44 I acknowledge Mr Drenen had instructed his client to do no further works to the premises although ironically, he did not instruct his client to cease the use. Further the Responsible Authority, as far as I was told at the hearing, did not tell the Applicant to cease the use. Whilst it did take action under a Local Law and also issued proceedings under the Health Act, it could well have sought enforcement action under the Planning and Environment Act 1987 and possibly shortened the period of nuisance to neighbours.

45 I have grave doubts that the works suggested by the Applicant to ameliorate noise and nuisance would be instituted immediately and it seems, on the basis of past performance, that little action would take place to ensure compliance with a planning permit condition unless forced to do so by the threat of litigation in one form or another.

46 Whilst there were other issues raised by objectors I consider there was insufficient evidence on these issues to make findings one way or another .

47 Accordingly the Application for Review is not allowed and no permit shall issue.