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[2004] VCAT 2468
General information, not legal advice.
Victorian Civil and Administrative Tribunal
2004-12-08
Original judgment source is linked above.
16 & 17 August, 19 & 26 October, 9 & 24 November 2004
The decision of the Responsible Authority is varied.
A permit is granted for the use of the land at 75 Amblers lane, East Trentham for the keeping of dogs and cats in accordance with the endorsed plans hereafter provided for and subject to the following conditions:
1
Within one month of the date of this order plans to the satisfaction of the responsible authority must be submitted to the responsible authority for approval. When approved, the plans will be endorsed and will then form part of the permit. The plans must be generally in accordance with the plans submitted with the application but modified to show:
•
A reduction in the area denoted as Compound 1 by the erection of a fence, parallel to the southern boundary fence, extending from the northern end of the field gate to the internal fence forming the eastern edge of Compound 1. The fence shall be of such height and materials to prevent any dogs reaching the area between the fence and the southern boundary of the subject land. It may contain a gate allowing access to Compound 1.
2
The use as shown on the endorsed plans must not be altered without the written consent of the responsible authority.
3
Not more than 10 dogs (of any species) may be kept on the land at any one time. This condition does not prevent a visiting dog remaining occasionally overnight if separated from the dog shed.
4
The permit holder (Mrs Deborah Parkhouse) must ensure that Afghan hound dogs do not leave the subject land unless on a leash. If any Afghan hound dogs escape, they must be brought back to the subject land without unreasonable delay once the escape is known.
5
Access to all Afghan hound dogs must be restricted solely to:
•
the permit holder,
•
a veterinary surgeon,
•
a member of the permit holder's family,
•
a person over the age of 18 years entrusted with the care or effective control of the dogs ("a nominated responsible person"),
•
a person accompanied by the permit holder or a nominated responsible person, or
•
a person acting in an emergency.
The permit holder shall provide the responsible authority with a list of current nominated responsible persons.
6
The permit holder or a nominated responsible person must be resident on the subject land and reasonably available when Afghan hound dogs are present on the subject land.
7
Feeding of the Afghan hound dogs must only occur between the hours of 7.00am and 8.00pm in Winter and 7.00am and 9.00pm at other times.
8
Unless in the course of a sanitary purpose under the direct supervision of the relevant person, or in an emergency, an Afghan hound dog must not be outside a building on the subject land between 6.00pm and 5.30am in Winter and 9.00pm and 5.30am at other times**.**
9
Such of the dogs that are Afghan hounds must not be allowed into the forested area in the eastern portion of the subject land unless on a leash or under the effective control of the permit holder or a nominated responsible person.
10
All solid waste within Compound 1, associated with the keeping of the dogs, must be collected, stored, treated and disposed of to the satisfaction of the Environmental Health Unit of the Macedon Ranges Shire Council.
11
Compound 1, including the Afghan hound dog shed, must be kept in a clean and hygienic state, to the satisfaction of the Environmental Health Unit of the Macedon Ranges Shire Council.
12
The roller doors at the southern end of the Afghan hound dog shed must be fully closed at all times, except when necessary for loading or unloading.
13
Unless with the written consent of the Responsible Authority, this permit will expire if:
(a)
the use is discontinued for a period of more than 2 years; or
(b)
Mrs Deborah Parkhouse ceases to be a resident of the subject land for more than 3 months, unless a nominated responsible person is living on the subject land during that period.
(c)
Mrs Deborah Parkhouse ceases to be the permit holder or the occupier of the subject land.
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.
The Tribunal directs that except for the purposes of proceedings in Applications for Review P3294/2003 and P241/2004 the parties must not use or allow the use of the copies provided to them of the compilation video tapes tendered by Mrs Deborah Parkhouse.
1
On 1 December 2003 the Macedon Ranges Shire Council [the Council] issued a Notice of Decision to Grant a Permit, subject to 12 conditions, for the use of land known as 75 Amblers Lane, East Trentham for the purpose of keeping nine dogs and four cats.
2
Application P3294/2003 is an application by a number of objectors, under Section 82 of the Planning and Environment Act 1987, to review that decision. Application for Review P241/2004 is an application by the applicant, under Section 80 of the Planning and Environment Act 1987, to review all of the conditions.
3
After hearing submissions at the start of the first day of the hearing I ruled that a limited number of persons are entitled to be parties in the proceedings.
4
I accepted Mr Testro's submission that the applicants in Application for Review P3294/2003 are limited to A Crosby, D Carlton, I Bowey, D & P Lloyd, B Ford and Alpha Pumps (Ludwig Schwall). Various other persons were named in the application for review. Some signed accompanying documents. However, as they were not objectors they are not entitled to be applicants for review. None sought to be joined as parties at the start of the proceedings.
5
I also accepted Mr Testro's submission that the respondents in Application for Review P241/2004 are limited to A Crosby, B Ford, I Bowey, D & P Lloyd and D Carlton. Although other persons lodged Statements of Grounds, as they were not objectors they were not entitled to do so.
6
Mrs A Crosby, Mrs B Ford and Mr & Mrs Lloyd were present at the hearing and indicated that they wished to be represented by Mr Neil Manning, who is not a professional advocate. However, I ruled that pursuant to Section 62(7)(b) of the Victorian Civil and Administrative Tribunal Act 1998 the other parties, who were not present, should provide written authorisation for Mr Manning to represent them. Mrs D Carlton, Mr Ludwig Schwall and Mr I Bowey subsequently submitted written authorisation.
7
Despite my ruling on who Mr Manning could represent, I made it clear that his submissions could embrace the general and particular concerns of other persons in the area.
8
The subject site comprises two lots on the eastern side of Amblers Lane, approximately 2 km south of the township of East Trentham. It has an area of 12.24 hectares. The eastern two-thirds of the site is heavily forested. It is contiguous with the Wombat State Forest. The western third is cleared and slopes away from the frontage.
9
A dwelling and a dog shed have been constructed on higher land in the south west corner. The shed has external Colorbond cladding and is fully lined. It is around 11m long and 6m wide, with a verandah on the eastern side. It is set back approximately 41m from the southern boundary and approximately 3.5m from the frontage. A series of artificial lakes have been created at the southern end of the cleared area. A 2.4m high wire fence, covered with black opaque material (weed matting), extends along the frontage and side boundaries.
10
Amblers Lane generally follows a ridgeline with adjacent land falling away to the east and west. Abutting properties have a similar character to the subject land. Cleared areas support both agricultural and residential uses, although there are only a few permanent residents.
11
The Crosby's property to the south has an extensive orchard and berry farm, as well as a cattery and dwelling. A car park used during harvest times, when the farm is open to the public, adjoins the south west corner of the subject site.
12
Mrs Parkhouse bought the lots comprising the subject site in May 2001. The purchase also involved two lots to the south of the Crosby's property, but they were sold to the Merretts in October 2001.
13
Building and planning permits were issued for what is now Mrs Parkhouse's dwelling and the dog shed. A planning permit was also issued for a dwelling and outbuildings on the northern lot forming part of the subject site. Mrs Parkhouse was intermittently at the subject site until around January 2002 when she became a permanent resident.
14
Mrs Parkhouse applied to the Council for a permit under Local Law 8 to allow the keeping of 7 dogs and 3 cats. A permit was issued on 10 September 2001. It ran until 10 April 2002. At that time it was renewed and extended to allow 10 dogs and 4 cats. It ran until 10 April 2003 and was again renewed on 12 March 2003. Through that period there were no complaints about the activity or objections to the issuing or renewals of the local law permit.
15
Mrs Crosby and Mrs Parkhouse were initially friendly but they agree that their friendship ended early in 2003.
16
In the early months of 2003 Mrs Crosby first complained to the Council about the use of Mrs Parkhouse's land. Subsequently, there was a series of complaints from Mrs Crosby and others to the Council and the Police. There was also a petition against the renewal of the local law permit. When Mrs Parkhouse sought to renew her permit she was advised that a permit would be issued for 3 months but if more than 4 dogs were to be kept she needed a planning permit. By letter dated 23 June 2003 she was advised:
The more appropriate course of action for Ms Parkhouse is to formally lodge an application for a planning permit for the keeping of dogs. This is in place of seeking consent under Council's Local Law.
17
The current application is Mrs Parkhouse's response. Mr Testro advised that given the Council's stance Mrs Parkhouse wishes to have the current application decided on its merits. However, she reserves her rights to continue to take the stance that no planning permit is necessary.
18
The application seeks retrospective approval for the existing use. Permission is sought for the keeping of 10 dogs and 4 cats. Plans accompanying the application showed the layout of the site, including the delineation and annotation of various compounds. An irregular-shaped area in the south west corner, denoted as approximately 3300m2, is described as Compound 1. It includes the dog shed that has dimension of approximately 6m by 10m. The fenced northern section of the cleared land is described as Compound 2. Both compounds form part of a larger area (Compound 3) that comprises the western third of the subject site. A plan depicted the distance from the dog shed to both the Crosby dwelling (to the south) and the Weiss dwelling (to the north) as approximately 200m and the distance to the Lloyds dwelling (to the south west) as approximately 320m.
19
The application was accompanied by a 5-page letter describing the use in detail, under the headings Fencing, Compound, Housing, Internal, External, Supervision and Environment.
20
Mr Gorman's report to the Council provided a comprehensive description of the relevant planning scheme controls and policies. As that report has been retained on the Tribunal's file I do not intend to reproduce that material here. Particular provisions will be cited when I discuss the issues in these applications for review.
21
The subject site and surrounding land is zoned Rural Zone 2 which is covered by Clause 35.01 of the Macedon Ranges Planning Scheme. Under the provisions of Clause 35.01 the use is apparently an innominate form of Animal Husbandry which requires the issue of a planning permit.
22
The decision guidelines at Clause 35.01-6 call for a consideration, as appropriate, of a range of matters under the headings General Issues, Rural issues, Environmental Issues and Design and Siting Issues.
23
The land is also affected by two overlay controls - Environmental Significance Overlay 5 (Other Catchments), covered by Clause 42.01, and Significant Landscape Overlay 1 (Mountain Ranges and Features), covered by Clause 42.03. Mr Gorman advised that the use does not require a permit under the overlay controls.
24
Mr Gorman drew my attention to Amendment C21. Amongst other things, the amendment proposes to rezone the subject land, and adjoining land, to an Environmental Rural Zone 1 (ERZ1 - Living forest) and introduce a new local policy at Clause 22.17 (Living forests).
25
As a result of advertisement of the application eight objections were received. There were 10 by the time the Notice of Decision was issued. Approximately 26 letters of support for the use were received.
26
The EPA advised that the use did not require works approval or a licence. It was, however, suggested that the criteria in the authority's Noise Control Guidelines should be met. The Council's Health Department commented on a range of matters that any permit should address.
27
The reporting officer, Mr Gorman, recommended that a permit issue, subject to 13 conditions. The conditions included:
•
The endorsement of plans submitted with the application.
•
A restriction to 10 dogs of any species, but only those living on the site at the date of issue of the permit.
•
The existing wire and plastic boundary fence and the wire fence between the cleared area and forested areas maintained in a satisfactory condition to prevent dogs escaping and minimise visual stimuli.
•
Controls related to the supervision of the dogs.
•
Feeding times restricted to 7.00am - 6.00pm.
•
Exercising of the dogs only between 9.00am and 5.00pm, with the dogs kept in their compound or shed at all other times.
•
No access by the dogs to the forested area of the subject site unless leashed.
•
The roller door at the southern end of shed closed at all times.
•
The permit linked to the residency of Mrs Parkhouse.
28
At its meeting on 19 November 2003 the Council adopted the officer recommendation but varied many of the conditions. Conditions included:
Plans be amended to show the location of the Dog Run to be not less than 50 metres from the side title boundaries and not less than 20 metres from the front title boundary.
Not more than nine dogs (of any species) may be kept on the land at any one time.
The perimeter fence of the Dog Run to be freestanding and constructed of a non-transparent material to the satisfaction of the Responsible Authority.
29
In relation to the objectors' application for review Mr Gorman largely relied on his report to the Council. However, he tabled and spoke to a written submission relating to the review of conditions.
30
Mrs Lloyd spoke to a written submission. Mr Lloyd made additional oral submissions. They were also represented by Mr Manning. Mr Manning spoke to a written submission and tabled numerous documents. He called Mr Robert Burton, architect and acoustic consultant, to give expert evidence. Mrs Alcira Crosby made a sworn statement.
31
Mr Testro spoke to a written submission. Three Council officers appeared in response to a Summons issued at the request of the Applicant for Permit. They were Mr Geoffrey Kringle (Team Leader, Local Laws), Mr Geoffrey Newton, (Senior Town Planning Liaison and Investigations Officer) and Mr Stanley Wilson (Fire Prevention Officer). Mr Testro called Mr Bela Aranyi (who works at the subject site) and Mr Albert Weiss, a local resident, to give evidence. He also called Mr Michael Dowsett, an acoustic engineer, to give expert evidence. Mrs Parkhouse made a sworn statement and showed two videos.
32
The expert witnesses, subpoenaed witnesses, Mrs Crosby and Mrs Parkhouse were all made available to be cross-examined by the opposing parties and questioned by the Tribunal.
33
The written submissions of the parties, the reports of the experts, together with numerous photographs, plans, policy documents and most of the other material tendered at the hearing, have been retained on the Tribunal's file. They include photocopies of Mrs Crosby's 2003 and 2004 diaries.
34
At the end of the hearing I chose not to retain a sample of the black plastic fencing material that had been tendered by Mr Manning. I also decided that the video compilations provided by Mrs Parkhouse can be retrieved by her 28 days after the date of this order, provided she lodges duplicates. A series of aerial photographs and photo boards will also be available for collection.
35
On 9 September 2004 I conducted an accompanied inspection of the subject site and Mrs Crosby's property. Mr Testro represented Mrs Parkhouse, Mr Manning represented Mrs Crosby and Mr Barry Green represented the Council. Some of the other parties and other interested persons were present at times.
36
These applications were originally listed for a one day hearing, after the Council had advised that it estimated 3 hours would be necessary. The hearing ultimately occupied five full days, with brief submissions also made on a further day when Mrs Parkhouse was unexpectedly unable to give scheduled evidence.
37
I do not intend to summarise all the submissions and evidence. Nor do I intend to deal with every ruling, and every explanation, made in the course of the hearing. Rather, I intend to deal with the key issues that have determined my decision.
38
At the outset it is useful to put my consideration of the proposal into context. It is useful to begin with a brief analysis of some basic premises on which my considerations are based.
39
Firstly, the parties agreed that permission for the cats and the small house dogs (of which there are currently 3) is not controversial. The small dogs are only relevant to the extent that they make up the numbers in the total number of dogs for which permission is sought.
40
Secondly, it needs to be appreciated that all of the dogs are pets. As Mr Testro persuasively put it:
We are not talking about an animal operation which is being operated in any active sense with a view to commercial, financial or other end results. This is not a case where dogs are trained for prize money or prizes, where dogs are being kept for remuneration or where dogs not known to each other are kept together. This is a situation where family pets are kept in a domestic and rural setting.
The dogs are being kept with the emotional attachment that an owner has to his or her pets. That brings about a different outcome and eye for detail than the degree of detachment and matter of factness found in a more commercial, business or result-driven environment.
41
It is beyond doubt that Mrs Parkhouse is devoted to her dogs and committed to their welfare. She has had Afghans since the 1970s. She has made a considerable investment in their enviable accommodation and is conscientious about such maters as their health, feeding, exercise and grooming. All animals are tattooed, vaccinated and registered with the Council. A local veterinarian and an RSPCA inspector have confirmed that they are cared for in an acceptable manner.
42
Thirdly, the subject land is not in a residential area, nor at an urban-rural interface. While there are some dwellings in the area, the subject land and surrounding land has a rural zoning. It is not the purpose of the Rural Zone to provide for residential uses. That would still be the case if the land was to be rezoned to Environmental Rural.
43
I accept Mr Gorman submission that the use is appropriate in terms of its locality and the zoning of land. As noted by Mr Gorman, animal-associated uses of greater than ordinary residential scale, intensity and/or type are generally more appropriate in the Rural Zone than in any other zone. Indeed, where are large numbers of dogs to be kept if not on rural land?
44
The zoning has implications regarding expectations about amenity. As noted by the Tribunal in Stout v Golden Plains Shire Council [2003] VCAT 1923:
...any reasonable expectation as to the quality of amenity that will be enjoyed will be that of a rural area, not a residential area. Rural areas and residential areas are not the same. The purpose of the Rural Zone is not to provide for superior quality residential amenity. It has been long recognised by the Tribunal that there are likely to be many conflicts between the impacts of rural activities and residential amenity.
45
I accept the basic propositions that dog keeping is an appropriate use within a rural zone and that the protection of amenity in such a zone is of lesser consideration, than for instance, in a residential zone.
46
Those propositions have been supported in many decisions of the Tribunal, and its predecessors. For instance, in Fitzgerald v Cardinia Shire Council [2000] VCAT 801 Member Monk considered a dog boarding establishment for up to 50 dogs and stated:
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...
47
The legitimate expectations of persons residing in rural areas was also taken up by Member O'Leary in Doig v Bass Coast Shire Council [2000] VCAT 1064. He noted that:
...noise, farm odours, the coming and going of trucks, tractors and related farm vehicles are a normal activity in a rural zone. Often these activities need to be conducted at various hours of the day and persons residing in such areas should not expect the same level of amenity as they would if they were in conventional residential or rural residential zone.
48
I acknowledge that this area is not particularly noisy, especially at night. I heard evidence that there are low background noise levels. However, there is considerable activity at the Crosby's property during the harvest season. Mr Testro also referred to the noise of trail bikes in the forest, the shooting range and timber trucks.
49
The noise of dogs is a feature of many rural areas. As noted by Member Rickards in Schultze v Campaspe Shire Council [2003] VCAT 1634:
Dogs are not uncommon in rural areas and can often be heard barking. It is also not uncommon for other dogs to bark when they hear other dogs barking. It is a matter for the owners of individual dogs to ensure that their barking does not result in a nuisance to persons in the surrounding area.
50
Fourthly, it is worth remembering that under the existing Local Law 8 on a site greater than 4000m2 four dogs and four cats can be kept without a permit. I was advised that in a draft Local Law circulated last year it was proposed that the as-of-right entitlement be increased to six. Furthermore, if the use was Animal Keeping (defined as the breeding or boarding of domestic pets or the keeping, breeding or boarding of racing dogs) five dogs would be allowed as-of-right. The proposal involves only marginally larger numbers and the dogs are not kept for breeding, boarding or other commercial purposes.
51
Fifthly, while I was not called on to decide whether a planning permit is required for the proposal, I consider that a strong argument could be made that Mrs Parkhouse's keeping of dogs is ancillary to the ordinary use of the land for a dwelling.
52
That was the view of Mr Kringle who was clearly bemused at the need for a planning permit in this case. He was no doubt alarmed at the work load involved if all "farm dogs" required such permission.
53
On the other hand, Mr Gorman argued that the use is not ancillary. He relied on Peterson v Ararat Rural CC [2003] VCAT 219 which was a case involving an animal shelter for 12 dogs. Members Rickards and Cimino stated:
...it would be very unusual to find 12 dogs kept on one property simply on the basis of them being family pets. The number of dogs is high and considerably more than the number contemplated on an "as of right basis" by the local law.
54
While the Tribunal did not dismiss the prospect of 12 dogs being "family pets" it went on to find that in the particular circumstances:
the keeping of 12 dogs is an activity which is substantial in nature, whether or not such activity is located on land used for residential purposes. As such, it is an activity which is of a scale beyond that which could reasonably be regarded as ancillary to the residential use of the land. It is a use in its own right.
55
The Tribunal in Peterson had noted the decision in Tyquin v Macedon Ranges Shire Council (2002) 10 VPR 270. In that case the keeping of 3 pigs as "pets", on land zoned Residential 1, was deemed an ancillary use of land as a dwelling and thus there was no need for permit. However, Member Komesaroff recognised that:
It is always a matter of fact and degree in each case when an activity ceases being ancillary to residential use of the land and converts to something separate to domestic or residential use...
56
I was referred to numerous other cases. Ultimately, they are of limited assistance. As noted by Mr Testro, they can all be distinguished in one way or another. The case before me must be considered in the light of such factors as the zoning, the size of the land, the non-commercial activity and the nature of abutting land uses.
57
Sixthly, I consider that the form of fencing on the subject land is of limited relevance. Many of the objectors raised concerns about visual aspects of the boundary fencing. At the hearing comments were made about the billowing plastic, the poor construction, fraying material and holes after just 2 years. Mr Manning tendered an example of a frayed section attached to bracken. The fire risk associated with the plastic covering was also of concern.
58
Although Mr Gorman argued that the black plastic is somewhat out of character with the rural area of the site, he submitted that no planning permit is required to construct a fence in this zone, or pursuant to the overlay controls. Mr Gorman's officer report cited various cases to support that view.
59
I accept that there is no discretion in relation to the legally erected fences. However, it is highly relevant whether the type of fence that is legally erected is an appropriate boundary for the dog compounds, in terms of enclosure and screening. I consider those matters later.
60
Seventhly, I accept Mr Gorman's submission that in considering the location of Compound 1 and the dog shed I should not be influenced by the fact that there has been substantial investment in the existing infrastructure and relocation would be costly. I acknowledge that Mrs Parkhouse has invested in the property after obtaining consents required by the Council. The Council's belated requirement for a planning permit is highly regrettable. Nevertheless, I need to consider the application on its merits and determine the best outcome for the site.
61
Eighthly, I note that the Tribunal and its predecessors have long held that an officer's report is a relevant consideration taken into account in proceedings such as this. While a Council is, of course, not obliged to blindly follow the advice of its officers, such reports represent the professional advice available at the time a Council reaches its decision [See Modern Living Design & Construction Pty Ltd v Box Hill CC & Ors, 1 AATR 166]. I accept Mr Testro's submission that Mr Gorman's report was thoroughly prepared, comprehensively addressed all relevant issues, and is a document to which I should give weight. It supported the issue of a permit, albeit with different conditions.
62
Lastly, part of the context is the relationship between the parties. As succinctly put by Mr Gorman in his report to the Council, the application is one stage of an on-going and bitter neighbourhood dispute that has reached the courts.
63
I heard that Mrs Crosby and Mrs Parkhouse were initially friends. There is now intense acrimony between the neighbours. Indeed, over my many years as a Tribunal member, and as a mediator of neighbourhood disputes, I have never come across a situation with such intense conflict. Unlike the courts, it is not my role to make judgments about actions or find fault. I acknowledge, however, that the conflict is not one-sided. I do not accept Mr Testro's characterisation of the situation as a "civil war" being waged by Mrs Crosby. Other parties have become "allies" of either of the women. It is apparent that some of Mrs Parkhouse's actions, particularly her ongoing video taping of activities in the area, are intimidating.
64
The background assists an understanding of the situation that has arisen. However, much of the material presented to me is irrelevant to the matters needing to be decided. Unfortunately, the acrimony appears to have also coloured much of the material which does touch on relevant matters. The parties seem to have taken extreme positions, perhaps exaggerating the real situation. For instance, it is curious that no complaints about the noise of Mrs Parkhouse's dogs were recorded by the Council before Mrs Crosby "fell out" with Mrs Parkhouse. Accordingly, I feel the need to be cautious about the veracity of much of the evidence put in these proceedings.
65
The major complaint of Mrs Crosby and other objectors is that the Afghan dogs bark excessively. On that matter Mr Manning relied on the original objections, statements (including Statutory Declarations) by local residents, visitors and passers-by, a video made by a visitor (Mr Hing), the submissions of the Lloyds and the sworn evidence of Mrs Crosby.
66
For instance, Mr Carlton referred to the barking and howling of the dogs, heard from his distant property and when he walked past. Mrs Ford stated that the dogs are extremely noisy and bark and bay, both day and night. In their objection the Lloyds (who live at an Ambers Lane property diagonally opposite the subject site) referred to a loud penetrating bark and wail. However, at the hearing Mr Lloyd acknowledged that there has been little barking since December 2003 and he has not heard anything for a couple of months. Mrs Lloyd also advised that the last time she heard the dogs at night was 30 December and there have only been odd occasions during the day.
67
Mrs Crosby's 2003 ands 2004 diaries, and her summary of entries for 2003, adopt the acronym "HB&B" (Howling Baying and Barking) to record the noise from the subject site. There are extensive such entries as well as other records of noise (eg. howling in the afternoon and evening and baying in shed).
68
Mrs Crosby acknowledged that the situation has been quieter this year, but not without incident. She also acknowledged that references in her diaries to barking do not always involve Mrs Parkhouse's dogs. In particular, it is often the Merrett's dogs (on land to the south east) as well or alone. Nevertheless, Mrs Crosby maintained that the noise of Mrs Parkhouse's dogs is an unacceptable nuisance that is affecting the enjoyment of her property, her business and her health. She advised that the disturbance causes sleeplessness, which requires her to take tablets. A medical certificate was tendered. It refers to her stress and insomnia, with the issues relating to her neighbour and some noisy dogs as apparently a major contributing factor.
69
Mrs Crosby also argued that the dog barking has a detrimental impact on visitors to her orchard and berry farm.
70
Mr Gorman reported that his search on the Internet indicated that the Afghan breed is not known for its excessive barking. He submitted that appropriate permit conditions, including relocation of Compound 1, can effectively control any noise. He also argued that dog noise would be unlikely to deter berry pickers.
71
Mr Gorman referred to the EPA Noise Control Guidelines (TG 303/92, 1992) [EPA Guidelines]. Section 14 refers to "Dog Kennels" and contains 10 guidelines. Mr Gorman submitted that although the application does not involve "kennels", and the Guidelines are just that, the principles are still applicable. However, he argued that the first guideline - kennels should be located at least 500m away from residential areas - is not relevant in this case given the rural zoning, the small number of dogs and the distance between the compound and the three closest dwellings (which he took to be 320m or less).
72
Mr Testro refuted the allegations of nuisance barking. He noted that other dogs in the area bark, especially those on the Merrett's property. He concurred with Mr Gorman's submission that the setback criterion in the EPA Guidelines is not relevant. Mr Testro submitted that as the Afghans are pets there is a different situation to a similar number being kept as part of a commercial establishment. He argued that as the dogs have a familiar environment and companions they are less likely to bark. That phenomenon was recognised by the members considering the cases of Peterson and Reynolds.
73
Mr Testro submitted that the dogs only bark for a reason. In particular, he cited the Merrett's dogs and the Crosby's dogs setting them off. In her statement Mrs Parkhouse cited those triggers, as well as visitors to her property, deliberate provocation, curious people at the fence line and other animals (such as the kangaroos shown on her video compilation). Mrs Parkhouse also referred to the Alpha dog phenomenon. That is, there is usually one dog that will bark first to alert the other dogs and the owner. The other dogs may or may not join in. Mrs Parkhouse argued that on the whole her dogs are very quiet.
74
Both Mr Manning and Mr Testro called expert evidence on this matter.
75
Mr Burton spoke to the report he prepared for the objectors. He relied on criteria in the State Environment Protection Policy (Control of Noise from Commerce, Industry and Trade) No. N-1 [SEPP N-1], the EPA's 2000 draft "Noise from Industry in Regional Victoria" and established sleep arousal criteria (by Griefahn and the NSW EPA).
76
Mr Burton advised that he had measured low background noise levels, particularly at night during low wind situations. Accordingly, he considered that the most appropriate criterion for avoidance of sleep arousal is 41dB(A).
77
Mr Burton was not able to measure the noise of the Afghans on the subject site. Instead, he relied on the evidence of other consultants, as presented to the Tribunal in other cases. Mr Burton calculated theoretical measurements of noise levels within the dog shed and in the surrounding exercise yard.
78
Mr Burton concluded that predicted noise levels are well in excess of both the SEPP N-1 limits and the draft EPA criteria for regional Victoria and well in excess of the recommended avoidance of sleep arousal criteria. With respect to the latter, Mr Burton commented that the maximum levels from barking would be above the recommended sleep arousal threshold of 41dB(A) by up to 12 dB(A) when the dogs are in the shed and by up to 28 dB(A) when they are outside. Mr Burton stated:
The relatively low background noise climate will cause the intrusion of howling or barking to be clearly noticeable and likely to cause considerable alteration to the acoustic environment.
79
Mr Dowsett, who prepared a report for Mrs Parkhouse, had been able to test the noise of barking dogs on the subject site. He principally aimed to measure the noise reduction of the dog shed. It was his evidence that the shed has a very good construction for acoustic purpose, by virtue of its cement sheet lining, double skin construction, insulation within the cavity and ability to close the doors.
80
Mr Dowsett reported that the reduction on the south side was 22dB(A), in lay terms ¼ as loud, and on the west side 29 dB(A), or 1/8 as loud.
81
Mr Dowsett predicted noise levels at nearby dwellings. He adopted Mr Burton's evidence concerning ambient noise levels. Assuming a number of dogs barking together would generate a level of 72-74 dB(A), his findings were as follows:
Lmax levels of 47 dB(A) at Lot 26 (Crosby property)
82
Mr Dowsett conceded that the levels at Lot 25 could be marginally higher as the dwelling is closer than he had assumed.
83
Mr Dowsett concluded that the night time levels would be at least 10 dB(A) below the Griefahn criterion for sleep disturbance of an Lmax of 47 dB(A) within a bedroom window, which relates to 57 dB(A) outside an open window. He highlighted that that criterion is accepted to be conservative. He also argued that it should not be assumed that there is constant barking. The predicted noise level should be reduced by a duration correction, in the order of 15 dB(A). Mr Dowsett noted that if that allowance is made, SEPP N-1 levels would not be exceeded outside.
84
It was Mr Dowsett's conclusion that noise from within the shed would not cause sleep disturbance. Indeed, even if there was constant barking at night from within the shed, the levels would be within the Griefahn criterion.
85
Mr Dowsett conceded that when the dogs are in the compound the noise levels experienced at adjacent properties would be significantly above the ambient noise levels. However, he simply noted that they would be similar to the noise of other dogs in the area. It was his observation that the dogs on the subject site do not create an adverse acoustic impact in the area that is designated rural.
86
Lastly, I note that Mr Aranyi reported that he took noise readings with hired equipment. He advised that although he is not an acoustic engineer, he has had some training in the use of equipment. He made readings both within and outside the shed. When the Afghans were barking he recorded a maximum reading of 74 dB(A). That is comparable to the assumptions made by the expert witnesses. He considered that the shed provides sufficient housing at night as it reduces the noise outside to a level of approximately 35 dB(A).
87
The nearest dwellings are closer to the dog shed than suggested on the plans accompanying the application. Mrs Crosby's dwelling is perhaps only 110m removed and the Lloyds dwelling is around 172m removed. The dwellings are well within the 500m exclusion area in the EPA Guidelines. However, I agree with Mr Gorman, and Mr Dowsett, that the Guidelines should be not invoked in this situation.
88
I appreciate that the Guidelines refer to "dog kennels" and do not distinguish between factors such as the type of place where dogs are housed, the circumstances or different breeds. I realise that they could be applicable to domestic-type situation. However, as Mr Burton conceded, they would then be less relevant as the number of dogs falls.
89
As noted by Mr Gorman, the Guidelines are not incorporated or otherwise referred to in the Planning Scheme. Furthermore, as stated by Senior Member Byard in Peter Condos v Maroondah City Council [1998] VCAT 590, the document is a guideline, not a prescriptive law.
90
The Guidelines themselves state that they:
..are primarily intended to be used by municipal officers in the resolution of complaints or to avert possible noise nuisance. Some guidelines have been prepared so that they could be incorporated into a permit condition...The guidelines are designed, however, to be the basis for assessment and not the last word.
91
It is highly significant that the first guideline in the EPA Guidelines refers to a distance away from a residential area. This area is within a rural zone and does not have the characteristics of a rural residential zone. As noted earlier, the noise expectations in such an area are different to those in a residential area.
92
My attitude to the Guidelines is similar to that of Member Baird in Jones v Bass Coast Shire Council [2000] VCAT 2285. In her consideration of a proposal for the keeping of up to 32 greyhounds on a 8 hectare site within a rural zone she said:
While the Tribunal notes that there are some residences within a 500 metre radius of the site, this is not a residential but a rural area. In that context, the Tribunal does not consider it reasonable to prohibit consideration of a relatively small kennel facility on the basis that some dwellings within a rural zone are nearby. Having said that, the Tribunal supports submissions that the amenity of the adjoining residents can not be disregarded, although reasonable expectations must be tempered by the setting of their land within a rural area.
93
I also accept Mr Dowsett's view that the application of SEPP N-1 is not warranted in this situation given the nature of the activities, the small number of dogs and how they are kept. I appreciate that the document does not say it is inapplicable to non-commercial activities. I also note that under Section 14 of the EPA Guidelines there is a "Note" that noise originating from dog kennels may be assessed using SEPP N-1. However, I adopt Mr Testro's submission that SEPP N-1 is not applicable when considering a situation of domestic pets in a rural area.
94
Nor am I prepared to give weight to the noise criteria in the EPA draft document relating to industry in regional Victoria. As acknowledged by Mr Burton, the draft document of 2000 has not moved. The use is not an "industry".
95
With respect to the noise levels at night I accept Mr Dowsett's evidence and conclusions that when the dogs are within the shed any barking would not result in sleep disturbance at nearby dwellings.
96
In a closed shed there would be no prospect of barking being provoked by visual stimuli and limited likelihood of any aural stimuli (save for perhaps lightning or passing cars). A radio on at all times acts as an electronic masking device, as recommended in the EPA Guidelines.
97
The configuration of the Crosby dwelling has the closest section as a living area, with the major sleeping area in south east corner. It is also likely that throughout most of the year bedroom windows would be closed at night. I fully appreciate that Mr Dowsett's evidence about the anticipated low noise levels experienced at Mrs Crosby's dwelling in terms of Griefahn criterion will be of little comfort to her. I understand that Mrs Crosby is likely to be particularly alert to noise, given these proceedings and others, her diary keeping and general frustration that Shire officers or police will not respond to her complaints. Nevertheless, I agree with Mr Testro that Mrs Crosby's particular sensitivity to noise cannot be determinative. The yardstick must be the potential impact on the ordinary reasonable person who happens to be a neighbour.
98
With respect to noise levels during the day I accept that Compound 1 is visually screened from most stimuli, although the slope of the land means there are views over the fence to parts of the berry farm.
99
I do not accept the picture painted by the objectors of frequent howling and barking. Nor do I accept Mrs Parkhouse's portrayal of the dogs as very quiet. Although both positions have been supported by numerous other statements I have no reason to fully endorse one position over the other.
100
I am more persuaded by the evidence of independent persons. For instance, Mr Kringle advised that he sat off the subject site and listened on 4-5 occasions. At no time did he hear noise from Mrs Parkhouse's property. He did, however, hear the noise of the Merrett's dogs when cars approached. He also visited Mrs Parkhouse's property a few times. He reported that on one such occasion two dogs barked but hushed when told to. Mr Newton gave evidence that he has visited Mrs Parkhouse's property twice and observed from outside one evening. There was only one brief episode of barking. He heard no barking Afghans during his visits to Mrs Crosby's property.
101
Those reports reflect my relatively brief time at the subject site. During my inspection there was little noise from the Afghans after initial barking, despite my unfamiliarity with the dogs and the fact that other strangers were present. The Merrett's dogs were also audible. There were six Afghans present but only one dog was dominating the barking. I do not consider that the barking was of a level that could be considered disturbing or unreasonable, as experienced on adjacent road or nearby properties.
102
I accept that the dogs will bark when they are disturbed. However, as accepted by Mr Burton, it is not necessarily the number of dogs present that is critical. The noise levels will be determined by the louder barkers, with only a marginal increase in dB(A) for extra dogs barking. In any event, all dogs will not necessarily bark at the same time. Given the "Alpha dog" phenomenon it is also likely that Mrs Parkhouse's Afghans could generate around the same level of noise that would be generated by a much lower number of dogs, such as the number permitted as of right. The noise of the Merrett's two dogs supports that proposition.
103
Having regard to the submissions and evidence, and in the light of my earlier analysis of the premises upon which my considerations are based, my finding is that the Afghans on Mrs Parkhouse's property are unlikely to result in a noise level that is unacceptable in this location. That said, I adopt the view taken by Member Baird in Reynolds that:
... it is important to ensure that the potential for excessive noise emissions is minimised or reduced to reasonable levels in the context of this site.
104
I am satisfied that appropriate permit conditions can ensure that outcome.
105
The Council has imposed a condition requiring the "Dog run" to be not less than 50m from side boundaries and not less than 20m from the front boundary. At my request Mr Gorman tendered a plan depicting those restrictions. The term dog run was not included in the application plans or supporting material. However, Mr Gorman clarified its meaning. It refers to the area coloured pink on the application plans that is described as Compound 1.
106
Mr Burton's evidence was that moving the compound, as required by the Council's condition, would reduce noise emissions from the dogs (when out of the shed) to the south by 3 dB(A). He considered that the impact on other receiver directions is minimal. It was, however, unclear what assumptions Mr Burton had made about where the compound would be moved to within the broad area allowed by the condition. In lay terms a 3 dB(A) noise reduction is acknowledged as a noticeable change (in contrast to a 1-2 dB(A) reduction which is imperceptible or a 5 dB(A) reduction which is significant). I appreciate that moving the compound would result in a noticeably reduction of noise from external dogs. However, in the light of my earlier findings I do not consider that the required relocation is warranted on that basis. The noise levels associated with the existing siting of the compound are not unacceptable.
107
The issue remains as to whether the compound should be relocated or altered for other reasons.
108
Relocation of Compound 1 was not included in Mr Gorman's recommendation to the Council. However, at the hearing he justified the condition by submitting that the Council's intention is to provide a greater physical separation of the Afghan dogs from Amblers Lane and the adjoining neighbours, particularly to the south. In a nutshell the condition aims to reduce the amount of external stimuli, such as the smell and movement of people and other animals, and thus minimise any detriment caused by the response of the dogs.
109
That outcome is also sought to be advanced by the imposition of a condition requiring the perimeter fence of the relocated dog run to be free-standing and of a non-transparent material. Mr Gorman argued that together those conditions would result in a better outcome in that the fencing of the dog compound would be opaque and separated from the external boundaries.
110
Mr Manning also argued that the location of the compound is inappropriate. He submitted that access by the dogs to the fence lines causes danger to humans and animals. He referred to persons being unable to walk their dogs along Amblers Lane, as supported by various objections and in statements tendered at the hearing. A letter from the Trail Riders Group raised the prospect that the dogs could startle horses being ridden in the forest and along Amblers Lane. Mr Manning also submitted that the dogs threaten visitors to the orchard and berry farm. In particular, he expressed concern that curious children could be bitten. Mrs Crosby stated that the Afghans react to cars and people in her car park, which abuts the compound. They scratch and tear at the plastic and look ferocious and malicious. A number of statutory declarations were tendered to the effect that the presence of the dogs has an adverse impact on Mrs Crosby's business and tourism.
111
The Lloyds submitted that dogs should not have direct access to external fences. Mr Manning suggested that any compound fence should be timber or iron and away from the boundaries.
112
In response, Mr Testro submitted that the Council's imposition of the extra conditions was arbitrary and not rationale. Mr Testro spoke about the logic of the current location of Compound 1. As it is close to the house, Mrs Parkhouse to able to observe the area from inside house and respond to any needs. The proximity of the dogs also provides security for Mrs Parkhouse, who lives alone.
113
Mr Testro submitted that there are limited other siting options given the topography of the subject site. Relocation would be restricted to the north paddock. Mr Testro submitted that that would not be in the interests of Mrs Parkhouse, the dogs or the neighbours. He also noted that Mrs Parkhouse has a long-term plan (and an existing permit) for an additional dwelling on the northern lot.
114
Mr Testro submitted that the condition requiring a non-transparent fence around a relocated compound is inappropriate. He argued that it would serve no purpose, given the proposed retention of black material on the boundary fences. Indeed, he submitted that it would have a negative impact in terms of barking as Mrs Parkhouse would not be able to see and respond to the dogs and the dogs would be bored.
115
I accept Mr Gorman's submission that the current arrangement presents a low risk of the dogs frightening horses, provided riders exercise caution. I also accept his submission that arguments about the impact on the berry farm and orchard should carry little weight. Public access to the Crosby's property is only during a limited time of the year. I also consider that the impact on Amblers Lane pedestrians has been somewhat exaggerated.
116
There is uncertainty about whether the dogs do climb up on the boundary fences and field gate. Mrs Crosby stated that they do and Mr Manning tendered various statements supporting that. However, Mrs Parkhouse asserted that they do not and Mr Testro tendered a letter from a veterinarian regarding the athletic potential of Mrs Parkhouse's dogs. It states that these dogs have medical reasons that make them unable or very unlikely to jump or scale the fence. Age, weight (either sub-standard size or obesity), severe arthritis and other medical conditions are itemised.
117
I consider that the provision of an intervening fence would go a long way to addressing the concerns raised by the objectors. My finding is that the location of Compound 1 is generally acceptable, but that it should be shifted away from the southern boundary and the field gate.
118
I understand that Mrs Parkhouse initially wanted to install solid Colorbond fencing on the boundaries, but some neighbours objected. As explained by Mr Testro, the black plastic was added to provide some privacy and form a wind break for growing trees. He suggested that it is a temporary measure until hedges grow.
119
The proposed hedge trees may provide a better boundary screen. However, they have not yet been planted. Although the black plastic prevents views into the site, after just a few years it is deteriorating in some places. Mrs Crosby tabled an example of a shredded section and during my inspection I saw examples of damaged material.
120
As I have already noted, the legally erected fences along the boundaries of the subject land are not a relevant consideration, except to the extent that they are impact on the keeping the dogs. On that matter I note that a requirement for a new fence on the southern side of the compound would mean the dogs would no longer have access to the southern boundary fence adjacent to the compound or the field gate. I appreciate that they would still have access to the plastic-covered fences along the frontage, the northern boundary and a section of the southern boundary. However, I consider that to be an acceptable outcome.
121
In reaching that conclusion I have considered the prospect of the dogs escaping and thus causing a nuisance or risk to people or stock. I consider that that prospect is minimal. As noted in Mr Gorman's report to the Council, the fence appears to be extremely well made. I acknowledge that since that time some of the supports have become unstable. There is also an on-going problem of holes created by burrowing animals. However, I am satisfied that Mrs Parkhouse is alert to the need to maintain the stability and security of the fences.
122
As part of Condition 9 on the Council's Notice of Decision the dogs would not be allowed in the forested area on the eastern part of the subject site unless on a leash and under the supervision of the permit holder or other nominated responsible person.
123
Mr Gorman justified the condition by reference to Clause 15.09 (Conservation of native flora and fauna) and related local policies. He noted that the forested area adjoins a State Forest and Amendment C21 proposes to rezone the area to an Environmental Rural Zone (to be known as Living forest). The amendment also proposes a Vegetation Protection Overlay and a local policy entitled Living Forest. Although the amendment has not been approved, Mr Gorman submitted that the Panel was generally supportive of those initiatives.
124
Mr Gorman submitted that:
Given that there is no doubt that the Afghan is an excellent "sight hound" hunting dog, it would be a grossly irresponsible planning decision to allow a pack of up to seven such dogs to roam unrestrained within an area that is obviously significant both as a habitat for native animals and as a biolink adjoining the state forest.
From the dog's perspective, other than for hunting, there would seem to be little need for them to roam freely in the forested area, given the size of, and excellent facilities within, the cleared section of the site.
125
On this issue Mr Manning tendered a letter from the Macedon Ranges Conservation Society that highlighted the diversity of flora and fauna in the region and noted that forest fringe areas like Amblers Lane are particularly rich in biodiversity. The letter stated that the keeping of dogs in sensitive natural environments is something that clearly should be avoided if at all possible. If it were to be allowed, impacts should be minimised by, for instance, limiting numbers, ensuring dogs are restrained and every effort ...made to minimise sound and smells leaving the immediate site.
126
In response, Mr Testro argued that I should give limited weight to the proposed Amendment C21. He noted that Member Hadjigeorgiou, in Roberta's Restaurant v Macedon Ranges Shire Council [2004] VCAT 1124, recently held that its final form is...quite uncertain.
127
Initially Mr Testro accepted that while the forested section is not fenced off from land to the east (forming part of the Wombat State Forest) the Afghan dogs should not be allowed in that portion of the subject land unless on a leash or under the supervision of the permit holder or a nominated responsible person. It was implicit in Mr Testro's suggested condition that after the forested section was fenced off neither of those prerequisites would apply. In effect, the dogs could roam free.
128
However, during discussion of the conditions towards the end of the hearing, Mr Testro and Mrs Parkhouse suggested that the condition should require the Afghans dogs to be leashed or under effective control of the permit holder or a nominated responsible person irrespective of the fencing of the forested section of the subject land. In support of such a condition Mrs Parkhouse argued that any dog can be in a State Forest if it is under the control of its owner and that other dogs (such as those of the Merretts and Crosbys) are frequently unsupervised in the forested area. Mrs Parkhouse argued that it would be unjust for there to be a condition relating to the use of her land that was more restrictive than what is allowed in the State Forest and for other dog owners.
129
Despite the strong environmental arguments put by Mr Gorman I do not consider that Mrs Parkhouse should be discriminated against. I note that she accepts a condition that the she must ensure the Afghan dogs do not leave the subject land unless on a leash. However, I do not consider that there should be a requirement for those dogs to necessarily be leashed when in the forested area of the subject land. They should also have access to that area if they are under effective control.
130
Mr Gorman's recommendation to the Council that the number of dogs (of any species) be limited to 10 was altered by the Council to 9. The number was changed because one dog had died after the application was lodged and a further condition sought to make the permit specific only to those dogs living on the site at the time the permit is issued.
131
Mr Gorman acknowledged that it is unusual to contain such a "sun set" condition. However, he argued that the temperament of the specific dogs is relevant. According to Mr Gorman the Council is satisfied that the dogs now on the subject land do not impact unreasonably on the amenity of the area but the same assurances cannot be given for other breeds or indeed other dogs of the same breed. Mr Gorman argued that at the very least the condition should specify the Afghan breed.
132
I accept Mr Testro's submission that both of those conditions should be varied. In effect, the conditions require the use to be phased out as the current dogs eventually die. I consider that to be an overly restrictive approach. There should be a condition allowing no more than 10 dogs of any breed, although I recognise that they are likely to be primarily Afghan dogs given Mrs Parkhouse's affinity with that breed. It is also likely that the actual number of dogs will remain at 9 for some time given the desirability of introducing a new pair, rather than a sole dog.
133
I understand that on a few occasions some of the dogs have escaped from the subject land. Although Mr Gorman submitted that the Afghan breed is not regarded as dangerous it is obviously desirable that the dogs are never off the property without a leash. I adopt Mr Testro's suggested re-wording of the condition relating to escape. The dogs must be brought back to the subject land without unreasonable delay, once the escape is known.
134
A condition imposed by the Council involves access to all dogs restricted solely to the permit holder or any other person over 18 entrusted with their supervision (a nominated responsible person), or another person accompanied by those categories of people. I adopt Mr Testro's submission that unsupervised access should also be allowed by a veterinarian, a member of the permit holder's family or a person acting in an emergency. Any restriction should also only relate to the Afghan dogs. To ensure greater certainty on this matter it would be appropriate for the Council to hold a current list of nominated responsible persons.
135
Mrs Crosby considers that Mrs Parkhouse cannot be relied on to look after the dogs full time. Her prolonged absences from the subject land have been the cause of barking.
136
I understand that in the early period of her residency Mrs Parkhouse was frequently absent, including overnight. However, I am satisfied that she now has in place a support network, including Mr Aranyi and Ms Ford (the operator of Colonial Boarding Kennels), that avoids that situation. She also takes the dogs to a boarding kennel if she is away for a lengthy period. Relevant Council officers have attested to Mrs Parkhouse's good management to date
137
Mrs Parkhouse agrees to a permit condition requiring either herself or a nominated responsible person to be resident on the subject land when the Afghans are present. I accept Mr Testro's submission that the words reasonably available should be added. The condition should allow for the resident supervisor to be away for brief periods.
138
With respect to feeding of the Afghan dogs Mr Testro submitted that an extended period for feeding in the evening should be allowed. That is, it should be allowed until 8pm in Winter and until 9pm at other times. Mr Testro noted that the Local Laws permit did not limit feeding times and there is no suggestion that that did not work effectively. He also argued that the proposed restriction is beyond what is the accepted norm for pet owners, i.e. feeding their animals for pleasure etc.
139
I appreciate that the Council has adopted feeding times (7am until 6pm) that are included in the EPA Guidelines relating to Dog Kennels. However, I consider that in this situation, where a reasonably small number of dogs are kept as pets, an extended period for feeding in the evening is appropriate. Limits of 8pm and 9pm would not allow the late night feeding that is seen by the objectors as problematic in that it causes noise.
140
The Council has also sought to restrict the hours when the exercise of the dogs can occur. The condition limits it to between 9am and 5pm. It also states that the dogs must be kept in their compound or shed at all other times while onsite. The imposition of strict times, to limit stimulation of the dogs outside commonly recognised commercial or working times, is supported by the objectors.
141
Initially, Mr Testro sought to vary the condition by including an earlier commencement time (7am) and later end times (6pm in Winter and 9pm at other times). He argued that such times are not unreasonable in a rural area and would allow for seasonal changes. Mr Testro also questioned the application of a restriction earmarked for a different type of establishment to a pet/domestic-type situation. For instance, he queried what exercise of the dogs means in such a situation - Formal exercise like greyhounds obtain? Walking in the enclosure? Any activity when the dogs are not locked up? He also noted that the wording of the condition implies that outside of the hours of 9am - 5pm the dogs would not be allowed into the house or in one of the other fenced areas of the subject land.
142
I appreciate that the time limit included in the condition is consistent with the EPA Guidelines. However, I agree with Mr Testro that this is a further example of where it is inappropriate to impose a condition aimed at controlling commercial kennels. Provided the dogs are in a building (the shed or the dwelling) overnight (from 6pm in Winter and 9pm at other times, until 5.30am) I see no justification for limiting where they can be on the subject land at other times. The dogs would obviously remain in Compound 1 until they are moved elsewhere on the subject land. However, during the harvest time at the Crosby's property there could be advantages in moving the dogs away from Compound 1 early in the morning.
143
The wording of the condition relating to waste disposal should be amended. It should obviously only refer to solid wastes, which I understand are collected and disposed of via a worm farm. However, I do not accept Mr Testro's submission that it should be limited to wastes in the dog shed. It should also encompass Compound 1, where the dogs are primarily kept.
144
As noted by Mr Gorman, the Council's condition aims to prevent wider environmental impacts, not just to keep the shed nice and clean. I agree with Mr Gorman that there are environmental risks associated with the land being within a water catchment and it is not unreasonable for a person keeping 10 dogs in a relatively small outside area to dispose of wastes.
145
Mrs Parkhouse agrees to the permit being personal to her and not running with the land. That outcome is reflected in the Council's "expiry condition" and in a further condition naming her as the permit holder. However, I agree with Mr Testro that the "expiry condition" is overly restrictive in relation to Mrs Parkhouse's presence. Mr Gorman advised that the Council accepts an amendment to allow a nominated responsible person to reside on the subject land during Mrs Parkhouse's absence.
146
Lastly, there should be the reintroduction of a condition requiring the roller door at the southern end of the dog shed to be closed at all times. That condition had been deleted by the Council, as a consequence of the condition requiring the shed to be relocated.
147
In summary I have found that the use is acceptable. Accordingly, I will order the issue of a permit. The conditions on the Council's Notice of Decision should be varied to reflect my findings. My order does not refer to a "Note" included by the Council, although the Council should feel free to include such advisory information on the permit it is ordered to issue.
148
These proceedings have taken an inordinate amount of the Tribunal's time. They have also involved enormous costs to the principal parties. The costs are both emotional and financial. The material presented over the course of the hearing demonstrated a fractured community. I fear there may be no happy ending. I make this order hoping that the parties will accept my findings and that the fractures may heal.
Parkhouse
Macedon Ranges SC [2004] VCAT 2468