RMB 2053 Bellingham Hill Road (Olivers Gully Road ) Ararat

[2003] VCAT 219

1. The application for an enforcement order no. P885/2002 is dismissed.

2. With respect to application for review no. P1214/2002, the Responsible Authority's decision to refuse the grant of a permit in permit application no. 1155 is set aside. A permit is granted for the use of land for the keeping of up to 12 dogs in accordance with the endorsed plans at RMB 2053 Bellingham Hill Road (Olivers Gully Road) Ararat. The permit must contain the following conditions:

1. Before the use starts, plans to the satisfaction of the Responsible Authority must be submitted to an approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of this permit. The plans must be drawn to scale and must show:

(i) the boundaries of the land and the location of all buildings;

(ii) the location of the central dividing fence which separates the open vacant area to the south of the dwelling from the northern half of the land.

(iii) the provision of a screen or barrier 1 metre in height along the central dividing fence to block dogs having direct views from the northern half of the land towards neighbouring properties to the south.

(iv) the area where dog wastes are to be kept and stored.

2. Not more than 12 dogs must be kept on the land.

3. Except with the further consent of the Responsible Authority, the only dogs which must be kept on the land are those owned by Ms Peterson on the 23 September 2002 and were registered with the Council.

4. Dogs must only be allowed on that part of the land south of the dividing fence at such times when Ms Peterson is present and actively engaged in their supervision, to the satisfaction of the Responsible Authority. At all other times the dogs must be kept in the area to the north of the central dividing fence.

5. The central dividing fence must be kept in a good state of repair so that dogs are unable to enter the area south of the central dividing fence at such times when Ms Peterson is not present on the land, to the satisfaction of the Responsible Authority.

6. The use of the land, as shown on the endorsed plans, must not be altered without the consent of the Responsible Authority.

7. All waste associated with the keeping of the dogs must be collected, stored treated and disposed of to the satisfaction of the Responsible Authority.

8. Except with the consent of the Responsible Authority, this permit will expire at such time that the permit applicant, Ms Jackie Peterson, ceases to be a resident of the land.

9. This permit will expire if the use does not start within two (2) years from the date of this Permit. The Responsible Authority may extend the times referred to if a request is made in writing before this Permit expires or within three (3) months after the expiry date

10. The amenity of the area must not be detrimentally affected by the use through:

* Transport of materials, goods or commodities to or from the land.

* Emission of noise, artificial light, vibration, smell, fumes, smoke vapour, steam, soot, ash, dust, waste products, grit or oil.

3. The Responsible Authority is directed to issue a permit pursuant to Section 85 (1) (b) of the Planning and Environment Act 1987

4. The Responsible Authority's application for costs is dismissed. All parties to bear their own costs.

_____________________________ __________________

Mr P Doyle, lawyer with Maddocks appeared on behalf of the Responsible Authority in relation to both applications.

Ms J Peterson, appeared on her own behalf with respect to both applications.

Mr R Rachinger, appeared on his own behalf as an interested party with respect to Application No. P885/2002

Ms C Young appeared on her own behalf and on behalf of Mr K Young with respect to Application No. P1214/2002

There were no appearances on behalf of the other persons who filed statements of grounds to the applications.

1. These applications concern land known as RMB 2053 Bellingham Hill Road (also known as Olivers Gully Road), Ararat [the subject land]. The two applications, one by the Council seeking an enforcement order against the owner of the land and the other by the owner seeking permission to use the land, involve related issues and as such were heard together.

2. At the hearing, Mr Doyle tabled and spoke to comprehensive written submissions whilst Ms Peterson, Mr Rachinger and Ms Young made oral submissions. In addition the parties also presented various photographs, diagrams, copies of correspondence and other Tribunal decisions relevant to the consideration of the applications. The relevant material tendered has been retained on the Tribunal's file.

3. In addition Mr Doyle called the following persons to give evidence:

* Mrs C Heard, the owner and occupier of the adjoining property to the south of the subject land.

* Mr Ian Ross Manley, Manager, Rural City Services with the Ararat Rural City Council.

* Mr Raymond Timothy Parmenter, Local Laws Officer, Ararat Rural City Council.

4. After the hearing we inspected the subject land and surrounding area in the presence of the parties. In particular, we had the benefit of observing the subject land and the nature of the activities conducted thereon from within Mrs Heard's and Mr and Mrs Young's respective properties.

5. It is appropriate at this point that we set out the relevant background to this matter.

6. Ms Peterson has a strong affection for small older dogs who are in need of a home. From about March 1996 to the end of 2001, Ms Peterson operated a "dog adoption centre and opportunity shop" on land at 71 Gamon Street, Seddon, which is within the City of Maribyrnong in metropolitan Melbourne. The use of that land was permitted by planning permit no. TPM 95/419 issued by the Maribyrnong City Council in March 1996. The use was conducted on land containing a commercial shop building and located within the established urban area in close proximity to dwellings.

7. It seems that the activities on the land were based around a program whereby Ms Peterson would take in small older dogs that had been family pets but could no longer be looked after by ageing owners or, alternatively, were no longer wanted. In these circumstances, Ms Peterson takes ownership of the dogs, keeps them on the land and looks after them until she is able to either find them a new home, or alternatively until they die. According to information set out in a letter from Ms Peterson to the "People of Ararat" [ tendered as Exhibit IM - 4 by Mr Manley], that in the 6 years or so that the Gamon Street centre operated, about 2,200 dogs passed through its doors, equating to an average of between 300-400 dogs per year. The centre was funded by monies raised in the associated "opportunity shop", from donations and by Ms Peterson personally.

8. It seems that at some stage in 2001, Ms Peterson was required to vacate the Gamon Street premises. A supporter of her cause subsequently offered Ms Peterson the subject land, and Ms Peterson accepted.

9. The subject land is located on the north-west side of Bellingham Hill Road, Ararat between Echidna Street and Montgomery Street. We understand from Mr Doyle that Bellingham Hill Road is also known locally as either Tobin Street or Olivers Gully Road. Contextually, the subject land is located towards the outskirts of the township area at the interface with the surrounding rural area.

10. The subject land is rectangular in shape with a frontage of about 54 metres and an overall area of about 4000 square metres. The land slopes gently from its road frontage down towards the rear. The land is occupied by a single storey dwelling and associated outbuildings. The buildings occupy (approximately) the northern half of the land whilst the southern half is fenced off with chicken wire and is vacant.

11. Ms Peterson resides in the dwelling on the land. We understand that Ms Peterson keeps 12 dogs which she looks after on her own. According to Mr Parmenter, the dogs in question are relatively small breeds including Pekinese, Shihitsu, Maltese and Australian Terriers, Chihuahuas and Spaniels. This is consistent with the photographs tendered by Ms Peterson and our own observations. We understand that the dogs are not kept within enclosed areas and generally are at liberty to roam both the northern half of the land and Ms Peterson's dwelling. Individual kennels or enclosures are not provided. The dogs are, however, provided with bedding within the dwelling's verandah although some of the older dogs are kept within the dwelling at night. The dogs vary in age from about 8 years to 27 years.

12. The subject land has a direct abuttal with Mrs Heard's property which is located to the south-west. Mrs Heard's property is somewhat smaller than the subject land. It is occupied by a single storey dwelling located towards the front of the property.

13. Mr and Mrs Young's property is located adjacent to Mrs Heard's property. The Young's property is somewhat larger, it is set on sloping land with the dwelling located towards the rear, well away from the road. The rear part of the Young's property, which is somewhat elevated, has an outlook over towards the subject land.

14. Other properties in the vicinity of the land vary in size with larger rural residential on the opposite side of Bellingham Hill's Road to smaller rural lifestyle type lots further north towards the township.

15. Ms Peterson claims that before occupying the land she made several enquiries with the Council about whether any permits would be required. It seems that as a result of those discussions, Ms Peterson was left with the impression that she could occupy the subject land with the 12 dogs in her ownership but that a permit would be needed to operate "an adoption centre". In this regard we note that in a letter to Ms Peterson dated the 20 December 2001, Mr Manley advised:

Based on the best information which we have been able to essemble (sic), it appears that the property which you are intending to purchase is located within the Rural Living zone of the Ararat Planning Scheme. Furthermore, it seems that the Animal Adoption Centre is a land use which requires the issue of a planning permit.

Accordingly, you are advised that you must not commence the operation of the adoption centre until application for planning permit has been lodged, the application has been properly considered and a planning permit has been issued, if indeed a permit is issued.

16. In a subsequent letter, dated 3 January 2002, Mr Manley wrote to Ms Peterson advising that:

It appears that you have seriously misunderstood or misinterpreted the information given to you verbally by Council's enforcement officer, Mr Geoff Waller and in writing by Council's Planning Manager, Ms Rosalie Bilson.

Accordingly, I have little option but to confirm my written advice to you of 20 December 2001 that the use of the subject land as an animal adoption centre must not commence until and unless a planning permit is obtained. I also understand that a permit under Council's Local Law may be required.

17. Mr Doyle also said that Council's solicitors sent a further letter to Ms Peterson on the 21 January 2002 advising that the Council considered that her intended use of the land requires a permit and that she must not engage in any animal keeping until a permit issued. She was further advised that an application for enforcement order would be brought against her if she did not comply with the direction.

18. By this stage, Ms Peterson had already lodged a permit application with the Council on the 9 January 2002. The permit application, no. 1155, sought permission to use the subject land "to bring 12 dogs aged 8-27 either to die naturally or run adoption centre". However, unlike the previous Gamon Street premises, Ms Peterson proposed to keep the dogs on the subject land with the "opportunity shop" to be operated from a shop within the Ararat township. We were not advised that it is proposed to house the dogs within kennels or other enclosures. Rather it was clear from Ms Peterson's submissions that the dogs will be free to roam within her dwelling and on the balance of the land.

19. The Council required notice of the permit application to be given and in response it received 9 objections. In relation to the objections, Mr Doyle said:

"These expressed concerns about possible amenity impacts on the neighbourhood, particularly in relation to noise, odours and possible adverse health effects. The objections generally indicated that the land was not an appropriate site for the establishment of the use proposed, and there would not be suitable supervision of the dogs during periods when the respondent was absent from the land."

20. It seems that before the Council made its decision, Mr Parmenter observed that Ms Peterson commenced residing on the land on or before the 4 February 2002 and that his investigations revealed that 12 dogs were also present.

21. It is relevant to say at this point that Ms Peterson did not deny that she brought 12 dogs to the land. Ms Peterson does, however, deny that she commenced the operation of an animal adoption centre. In this regard we note that the "shop" which was shown in the photographs tendered by Mr Manley is not on the subject land, but elsewhere in the municipality. The application for enforcement order does not include the shop. In relation to the operation of the adoption centre on the land, there was no evidence presented to us that demonstrated that new dogs have been brought to the land or that some of the dogs originally brought to the land and registered with the Council have been given for adoption or that persons seeking dogs have come to the land. The open letter to the people of Ararat [Exhibit IM-4] invites the surrounding neighbours to come and view the property during the course of the permit application process, but it does not offer dogs for adoption. Rather this letter explains the proposal which was before the Council and sought community support.

22. The Council subsequently made its decision to refuse the permit application on the 12 March 2002. The grounds of refusal are:

1. The use is likely to have a detrimental impact on the amenity of properties within close proximity.

2. The location is inappropriate in this high quality rural living area.

3. The operation does not have the required supervision to ensure adequate control over the dog numbers proposed.

23. On the 4 April 2002, Application P855/2002 was filed with the Tribunal. The application is one made under Section 114 of the Planning and Environment Act 1987 by Rural City of Ararat Council seeking an enforcement order to be made against Ms Peterson. The application alleges that Ms Peterson is using the subject land in contravention of the Ararat Planning Scheme. In particular the application states that:

The Respondent first occupied the subject land on a date between the 4 February and 8 February 2002, and has since continued to occupy the subject land.

The respondent has promoted the subject land as 'retired canine adoption centre' and has kept and maintained 12 dogs on the subject land.

The use of the subject land is either 'animal keeping' (more than 2 animals), or else some other kind of 'animal husbandry'. Either of these uses requires a permit under clauses 31.01-2 and 35.01-1 of the Planning Scheme, in relation to the subject land.

The Respondent has submitted an application for planning permit with Council to allow this use of the subject land. Council considered this application at its meeting of the 12 March 2002 and issued a refusal to grant a planning permit. No planning permit operates to allow the current use of the subject land for animal keeping or animal husbandry.

24. The application requests the following orders:

1. That the respondents must not allow more than two animals (such as dogs or cats) to be kept on the subject land.

2. That the respondents must remove all, the other dogs and cats from the subject land within 2 weeks from the date of this order.

3. That the Respondent must pay the costs of the Applicant in relation to this application.

25. Application P1214/2002 is made under Section 77 of the Planning and Environment Act 1987 by Ms Peterson against the Responsible Authority's decision to refuse to grant a permit with respect to Planning Permit Application No. 1155.

26. Having set out the background to this matter we now turn to the planning scheme controls that apply. Under the Ararat Planning Scheme, the subject land is located within the Rural Living zone, the provisions for which are found at clause 35.03. The purpose of the zone is:

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

To provide for residential use in a rural environment.

* Protection and creation of an effective rural infrastructure and land resource.

* Improvement of existing agricultural techniques.

* Value adding to agricultural products at source.

* Promotion of economic development compatible with rural living activities.

* Development of new sustainable rural living enterprises.

To ensure that subdivision promotes effective land management practices and infrastructure provision.

27. "Dwelling" is an as of right or no permit required use within the zone, provided that three conditions are met. One of these is that the land must be at least the area specified in the schedule to the zone. The schedule specifies a minimum lot size of 1 hectare. Given that the land is less than 1 hectare, the use of the land for a dwelling on a lot of 4000 square metres requires a permit. However, it was not put to us that the land does not enjoy existing use rights to be used for this purpose and we have no basis to doubt that this is the case.

28. One of the issues which the consideration of these applications raises is the proper categorisation of the proposed use. We produce the various land use terms and their respective definitions which could apply below:

Animal boarding Land used to board domestic pets, such as boarding kennels and a cattery.

Animal husbandry Land used to keep, breed, board, or train animals, including birds.

(It includes Animal keeping, Animal training, Apiculture, Extensive animal husbandry, horse stables, intensive animal husbandry)

(It includes Animal boarding, dog breeding, racing dog keeping)

(b) keep, breed, board, or train animals, including livestock and birds.

29. Under the land use table at clause 35.03-1 we note that:

* Animal boarding is an unspecified use within any section of the table at clause 35.03 and as such, falls within section 2 of the table and a permit is required.

* Animal keeping (other than animal boarding) is a section 1 or no permit required use within the zone provided that no more than two animals. A permit is required if more than two animals are involved.

* Agriculture (other than Animal keeping, Apiculture, Intensive animal husbandry and Timber Production) but which embraces Animal husbandry is a section 2 or permit required use within the zone.

30. Relevant decision guidelines are at clauses 35.03-6 and 65. The guidelines at clause 35.03-6 require consideration to be given to a range of factors including the planning scheme's policy frameworks together with a series of general, rural, environmental and design and siting issues. The guidelines at clause 65 also require consideration to be given to the planning scheme's policy frameworks as well as orderly planning and the impact on the amenity of the area.

31. It is also relevant to refer to the provisions of clause 64 of the scheme which deals with land used for more than one use. This clause states:

If land is used for more than one use and one is not ancillary to the other, each use must comply with this scheme.

32. In relation to planning policy we note that the objective of the policy at clause 15.05 is "to assist the control of noise effects on sensitive land uses". Clause 15.05-2 states that "Planning and Responsible Authority's should ensure that development is not prejudiced and community amenity is not reduced by noise emissions, by ensuring that there is suitable separation between amenity reducing and sensitive land uses."

33. We have before us two applications, one seeking retrospective approval to enable the lawful use of the land for the keeping of an adoption centre for up to 12 dogs and another seeking an enforcement order which essentially seeks that Ms Peterson remove the dogs from the land.

34. In such circumstances, it is appropriate that we first consider the merits of the permit application for the use of the land before making our decision on the enforcement order. We say this because, if we are of the mind to grant a permit, this may influence the form of the enforcement order or even bring into question whether one needs to be made at all.

35. Accordingly, we first turn our mind to the application against the Responsible Authority's decision to refuse the grant of a permit.

36. Submissions on this matter highlighted the difficulty associated with the proper categorisation of the proposed use. This has been made more difficult not only because of the standard of the material that forms part of the application, but also because of statements made by Ms Peterson during the course of making her submission.

37. The permit application documents specifies that the permission being sought is "to bring 12 dogs aged 8-27 either to die naturally or run adoption centre. " After seeking clarification from Ms Peterson, we understand that she is seeking permission to bring the 12 dogs that are in her ownership to the land. We also understood that the original intention was to conduct an activity similar to that in Gamon Street, save that the opportunity shop component is to be operated elsewhere.

38. However, towards the end of the hearing, Ms Peterson made some statements which we think are relevant to the consideration of this matter. The most significant was her claim that that she cannot give up any of the dogs that are currently in her ownership. Ms Peterson was quite passionate in saying that she would not offer any of them for adoption and that they would stay with her until they die. In addition Ms Peterson said that she was no longer in a position to, nor does she want to, accept other dogs.

39. It appeared to us that the above statements changed things somewhat, particularly with respect to the nature of the activity which she proposes for the subject land. Whilst in the initial application permission was sought to run at least part of the adoption centre from the subject land (ie: the keeping and care of dogs awaiting adoption), based on the statements made by Ms Peterson, this no longer seems to be the case. We are not sure whether Ms Peterson's change of heart was due, perhaps in part, to her perceptions of the strength of the case mounted by the Council against her permit application. However, in response to our questions, Ms Peterson explained that whilst she still has a strong commitment to the care of the animals that she owns, she is no longer in a position to take in more dogs because of her age and the effort required, both physically and financially, to look after them. Ms Peterson said that all she wanted was to keep the dogs that she currently has.

40. Based on the evidence of Mr Parmenter, the 12 dogs in question are registered with the Council. Ms Peterson is the owner. Ms Peterson made it clear that she would not offer any of these dogs for adoption. There was no evidence before us that demonstrated that the dogs are being kept for some other purpose such as breeding, or that they are being trained for some type of performance or that they are being boarded on a temporary basis. There was evidence that Ms Peterson commenced operating a shop, however, this activity occurs elsewhere. It seems to us that these dogs are Ms Peterson's pets.

41. The question therefore arises as to whether a planning permit is required at all for the keeping of the 12 dogs on the basis that this is an ancillary activity associated with the residential use of the land. This is a question of law, and as such, it has been determined by the presiding member who is a legal practitioner as follows.

42. It is not uncommon for animals such as dogs, cats, birds etc. to be kept as domestic pets on residential properties. No permit is generally required for the keeping of such animals on the basis that this activity is ancillary to the residential use of the land.

43. Mr Doyle anticipated the possibility that the keeping of the 12 dogs on the land might be considered "ancillary" to the residential use which has already been established. On this point, Mr Doyle said in his submission:

Council accepts that the keeping of animals as domestic pets is normally an activity that will be ancillary to some other use of land, for example a "dwelling" use.

However, in Council's submission, the keeping of domestic animals will not always be ancillary to some other use of land. In relation to the facts before us, this land use is something beyond the ordinary keeping of domestic pets. By virtue of its scale, its organisation, by the fact that it is promoted and advertised, and by virtue of its impact on neighbourhood amenity, the use of the subject land is something beyond that which may be allowed as an 'as of right' use in the Rural Living zone.

44. In support of this proposition, Mr Doyle put forward the views expressed in various decisions of this Tribunal and its predecessors. These included decisions in Tapp and Vane v Shire of Bacchus Marsh (1994) 13 AATR, Molloy v Moorabool Shire Council (1996/31369 unreported), Whittlesea City Council v R G Simmons [2000] VCAT 960 and B & J Tyquin & Others v Macedon Ranges Shire Council and N & M Park [2002] VCAT 624.

45. On reviewing these cases it seems that in Tapp and Vane, Molloy and Simmons, the activity in question involved more than simply keeping animals as pets, and therefore, such activities were not found to be ancillary to the residential use of the land. For example, in Tapp and Vane, the former PAB found that the activity was not ancillary as it did not simply involve the keeping of 6 dogs, but also included the breeding of dogs and training them for shows. In Molloy, the keeping of 4 unspayed bitches for breeding was found not to be an ancillary activity whilst in Simmons the Tribunal came to a similar view with respect to the keeping, breeding and racing of 120 pigeons.

46. It could be said that the use of the land proposed by Ms Peterson in the permit application is more than simply to keep 12 dogs on the land and is therefore not ancillary. Rather, the application seeks permission for the dogs to be kept as part of a "retired canine adoption centre". Based on the evidence about the way the adoption centre operated at Seddon, it is clearly an organised activity which operates at a scale which is beyond that which could be considered ancillary to a dwelling. Even though the opportunity shop component is not to be conducted on the subject land, none the less the keeping of the dogs is associated with an organised activity the purpose of which is to shelter the dogs until a home is found or alternatively they die. As Mr Doyle correctly pointed out, the use envisaged in the permit application is more than the keeping of animals. It is a use in its own right.

47. As to how it can be categorised, it seems that the sum of the activities associated with the proposed "retired canine adoption centre" do not fall comfortably within the definitions set out in the scheme given that activities such as "boarding", "breeding" and "training" dogs do not occur. Rather, this is a case where the most apt description would be that which has been nominated by the applicant, namely, a "retired canine adoption centre" in that it better reflects the purpose and nature of the activity to be conducted. When a use which does not easily fit within the definition of any of the land use terms set out in the scheme is identified, it is appropriate to consider the true purpose of the use in question when the scheme allows for the consideration of innominate uses. This approach accords with the views of Ashley J in Cascone v City of Whittlesea 1993 11AATR 175. The use proposed in the application is one which is innominate and as such falls within section 2 of the land use table for the zone. Discretion exists for a permit to be issued for this use.

48. However, in light of Ms Peterson's statements that she would not give up the dogs that are currently in her ownership and not offer them for adoption, it is necessary to consider whether this results in the keeping of animals in a manner that is ancillary to the residential use of the land. In this regard, the Tribunal's views in Tyquin's case are more to the point than those previously referred.

49. In Tyquin's case the permit applicants were seeking to keep three pigs as pets on land zoned Residential 1. The Tribunal found that the applicants were not breeding the pigs, they were not being kept for breeding purposes, nor were they being boarded. Although some might find a pig to be an unusual domestic pet, the Tribunal found that the keeping of three pigs was an "ancillary domestic residential land use" and determined to set aside the Council's decision to grant a permit because no permit was required under the planning scheme.

50. It is relevant to refer to the Tribunal's concluding comments in Tyquin's case when it said:

"It is always a matter of fact and degree in each case when an activity ceases to being ancillary to residential use of land and then converts to something separate to domestic or residential use, but it is my opinion that the keeping of only three pet pigs as pets has not crossed the border from ancillary use to a separate use requiring planning permission."

51. As the Tribunal noted in the above extract in _Tyquin'_s case and in Dewez v Shire of Healesville (13AATR 67):

"...it is always a question of degree in each case as to whether a proposed use constitutes an activity normally associated with a residence."

52. Could therefore the keeping of 12 dogs on the land be considered as being ancillary to the use of the land for a dwelling? It is not unusual for one or two dogs to be kept as family pets. The Council's local law contemplates that a property owner may, without a permit, keep up to 2 dogs when the land is located in a residential area whilst up to 6 dogs may be kept in farming areas. Permits can be issued under the local law for more than the maximum specified.

53. Whilst there could be some debate as to whether the land is located within a residential or a rural area, 12 dogs is a significant number and goes beyond the number that could reasonably be expected to be associated with a residential use. This conclusion is reached for a number of reasons.

54. First, 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 involved is high and considerably more than the number contemplated on an "as of right basis" by the local law. Second, the keeping of this many dogs requires substantial space and facilities to keep them in a healthy and humane environment. The land in question provides such space. Third, the concentration of this many dogs on one property of this size raises the potential for amenity impacts with respect to such matters as noise, odours and littering, which are beyond those which could be reasonably anticipated as being associated with the keeping of a more modest number as pets.

55. 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. It is a use which, because of the number of animals involved may fit into the definition of "agriculture" which includes land used to, inter alia, "......keep, breed, board, or train animals, including livestock and birds". When considered either as falling within the definition of "agriculture" or being some form of unspecified use, discretion exists under the land use table at clause 35.03 for such a permit to be granted for such use.

56. In light of the above, we now turn to the consideration of the merits of the proposal.

57. In this regard it seemed to us that there are two key concerns with this proposal. The first is that the use of the land as proposed is somewhat unstructured. As Mr Doyle pointed out, the dogs are not currently provided with individual kennels or enclosures and we note that Ms Peterson does not intend to provide any such accommodation. The dogs have what appears to be the run of much of the northern half of the subject land, including Ms Peterson's dwelling. By practical necessity Ms Peterson will not be on the land at all times and we were not advised of any arrangements for some other person to supervise the dogs when she is absent.

58. The other key concern is that the dogs will cause unreasonable detriment to surrounding amenity due to noise and odour. Mrs Heard and Mrs Young were particularly concerned about this. Mrs Heard's evidence was that her enjoyment of her property is substantially diminished due to noise associated with dogs barking when they see her venturing into her backyard area. Mrs Young expressed similar concerns. Concerns were also raised about odours. Mr Rachinger, who lives about 275 metres away, conceded that he would not be affected by noise or odours but expressed general concerns about the impact on the rural amenity of the area.

59. On hearing the submissions and evidence, it seemed to us that the main area of concern is the adverse impact on amenity due to noise from barking dogs. To assist our consideration of this issue, we had the benefit of inspecting the subject land from various points and the opportunity to listen to noise generated by the dogs. During the course of our inspection, we were accompanied by all of the parties. There were many people moving around both immediately outside the subject land and within the open space areas of Mrs Heard's and the Young's respective properties. We instructed Ms Peterson not to venture onto her land or to communicate with the dogs.

60. We must say that based on our observations, we did not experience significant noise from barking dogs. This was despite many people, some of which would be unknown to the dogs, walking around the outside of the subject land thus providing a stimulus for dogs to commence barking given the unusual level of activity. This is not to say that we heard no barking, rather, that the amount of barking was not something which we found to be disturbing or unreasonable either from the adjacent road or nearby properties.

61. In his evidence, Mr Parmenter said that when he approached the subject land the dogs began to bark and "the noise is reasonable from the direction of the road". He also observed that the dogs "will quieten down when told to by the owner". Our observations with respect to the noise from barking are consistent with those of Mr Parmenter.

62. Whilst it could be anticipated that the congregation of 12 dogs would result in substantial potential for noise, in our view, there are a number factors that apply specifically to this case which assist in explaining our observations. The first is that the dogs in question are small breeds and relatively old. Second, the have been with each other for some time and are familiar with each other. Third, the dogs effectively live on the land and have become familiar with their surroundings. Fourth, the dogs live with their owner who provides them with care.

63. There is in our view, a considerable difference between the way these dogs have been kept on the land compared to a similar number being kept within boarding kennels where they can be from various age groups and of varying breeds and sizes. In addition, dogs attending kennels are placed in a new environment for a short period of time, away from their owners and in proximity to dogs with whom they are unfamiliar. In these circumstances it would seem likely that dogs would have a greater propensity to bark and generate considerable noise. More structured accommodation and management would be required to alleviate these problems.

64. The upshot of the above is that we would have concerns about the operation of "a retired canine adoption centre" on the land given that such use would inevitably involve the introduction of new dogs onto the land. The potential for new dogs to be introduced onto the land needs to be considered in light of the 300-400 dogs a year that passed through the Seddon centre. This represents substantial change in the dog population on the land, a level of change more akin to boarding kennels. Given the unstructured nature of what is being proposed by Ms Peterson, in terms of both management and lack of facilities such as kennels and enclosures, and that the land is located within a 'rural living' area, we would not regard the operation of 'a retired canine adoption centre' as being appropriate. The potential for land use conflict and adverse amenity impacts is too great and inappropriate.

65. We do not, however, hold the same view with respect to the proposition that Ms Peterson simply keep the 12 dogs that are currently in her ownership on the land. In particular, on the evidence and our observations, we have not been able to come to the view that such an activity would be inappropriate.

66. The land is within a "Rural Living" zone, the purpose of which includes to provide for "residential use in rural environment". We would not regard the keeping of these dogs and the noise which they generate as being incompatible with a rural environment. There are many activities associated with rural land use which may at times cause some conflict with residential amenity. Odours associated with the use of fertilizers and sprays, emissions from farm machinery, commercial vehicle traffic and noise from animals such as the squawking of the geese which we heard during our inspection are all part and parcel of a normal "rural environment" and the amenity which ought to be expected. All of these have the potential to upset residential amenity, however, they must be reasonably tolerated given that the land is located in a zone which provides for residential use in a rural environment.

67. We do not regard the amenity impacts associated with the keeping of these 12 dogs to be incompatible with a rural environment. The noise was not unreasonable, there was no evidence of unreasonable odours or health impacts. Furthermore, the land is large and quite clearly capable of supporting the level of activity that is proposed and there is no adverse impact on its appearance. There are no environmental issues, such as the management of waste, that cannot be managed by way of permit conditions.

68. In light of the above, our conclusion is that it would not be appropriate to grant a permit for the operation of at least part of the activities associated with a retired canine adoption centre on the land as proposed by Ms Peterson in the application.

69. However, in light of the statements made by Ms Peterson and our assessment of the proposal, we consider that a permit which would allow Ms Peterson to keep the 12 dogs that are in her ownership on the land to be acceptable. This use is more constrained than the total ambit of the permission originally sought.

70. The permit will however, contain a number of conditions which are specifically directed towards maintaining the use at its current level including the number of dogs.

71. Given that Ms Peterson has said that she does not want to take in any more dogs, the permit conditions will require that the dogs kept on the land be those registered with the Council at the time these applications were heard. The conditions will however, contain the flexibility for the Council to consent to a new dog being allowed on the land provided that the overall number remains at 12.

72. During the hearing Ms Peterson offered to put a low screen along the bottom of the fence which divides the northern and southern halves of the land. This is a sensible requirement which will reduce the potential for dogs to observe Mrs Heard in her back yard causing them to bark.

73. We also consider that this is one of those circumstances when it is appropriate that a permit be issued on the basis that the use will be conducted by the applicant. This is particularly so when the applicant is integral to the management of the use. We have included a condition whereby the permit will expire when Ms Peterson ceases to be a resident on the land.

74. We have reviewed the draft conditions prepared by Mr Doyle and included those which we consider appropriate.

75. Given our conclusion with respect to the permit application, we will dismiss the application for the enforcement order. For the reasons outlined earlier, we do not accept that Ms Peterson commenced to run "a retired canine adoption centre" from the subject land. We cannot find that the breach of the planning scheme as alleged in the application for enforcement order occurred.

76. Ms Peterson did commence to keep 12 dogs on the land, 12 dogs which she owns and the Council was willing to register. Ms Peterson has been successful in obtaining a permit to keep the 12 dogs which she owns. This permit is subject to conditions. Ms Peterson will be required to comply with the permission and conditions granted. If a breach is detected in the future, then this can be the subject of a new application.

77. In relation to the issue of costs, we have considered Mr Doyle's submissions. The normal rule which applies is that set out in s 109 (1) of the VCAT Act, that is, that the parties bear their own costs. This is particularly so with merits reviews. Given that we have not found that the breach which was alleged occurred and dismissed the application for enforcement order we do not propose to award costs. Each party to bear their own costs.

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