The decision of the Responsible Authority is varied. Pursuant to Section 85(1)(a) of the Planning and Environment Act 1987, the Responsible Authority is directed to issue a permit for the keeping of 15 dogs and associated breeding and training on the land at No. 113 Whalans Track, Lancefield, subject to the conditions set out in the Notice of Decision dated 26 July 2001, with the following variations:

1. Before the use starts, a report to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. The report must detail works required to the shed (kennels) to ensure compliance with State Environment Protection Policy (Control of Noise from Commerce, Industry and Trade) No. N-1. That may include appropriate cladding and any necessary temperature control mechanisms. When approved by the Responsible Authority the works must be completed before the use can commence.

s Conditions 1 to 10 are renumbered as 2 to 11 inclusive.

s After the words "shall be bred" in Condition 4, the following words are added: "or pups under the age of six months from that litter".

s Condition 10 is amended to refer to "Mr H and/or Mrs D Cordani".

12. Noise originating from the premises must comply with State Environment Protection Policy (Control of Noise from Commerce, Industry and Trade) No. N-1.

13. The feeding of dogs is restricted to between 7am and 6pm on any day and the exercise of dogs may only be performed between 9am and 5pm on any day.

14. At no time is any dog be allowed to run free outside of the exercise yards unless under the control and supervision of an adult.

Mr M Townsend of Counsel appeared (by direct brief) on behalf of the Applicant for Review. He called Mr R Burton of the Burton Acoustic Group to give evidence.

Mr J Maslen, Senior Planner, appeared on behalf of the Responsible Authority.

Mr H Cordani appeared on his own behalf as the Respondent/permit applicant.

The parties presented both written and verbal submissions and a number of plans, photographs and other documents were tendered to the Tribunal. A video was shown by Mr Cordani. The witness was made available for cross-examination. All of the material presented to the Tribunal is retained on file and has been taken into consideration.

1. This is an Application under Section 82 of the Planning and Environment Act 1987 brought by G & S Reynolds to review a decision made by the Macedon Ranges Shire Council ("the Council") to grant a permit in application no. P201-0328. A Notice of Decision was issued by the Council on 26 July 2001 with 10 conditions.

2. An Application for Review was lodged on 15 August 2001. Grounds were set out in the application, including a "failure to follow planning guidelines, inappropriate decision given status of intended property use, and no consideration of interference with neighbours".

3. Mr Maslen explained that in March 2001, a planning permit application was lodged with the Council for the keeping of 15 dogs and the construction of a shed (kennel) on the subject site. The Council determined that a permit was not required for the keeping of dogs as it was regarded as a use that was ancillary to the existing use. A planning permit was then issued (without advertising) for the construction of a shed (P201-0132) and an application was made under the relevant Local Law for the keeping of dogs. The application under the Local Law was advertised and four objections received. One submission questioned why a planning permit was not required. That led the Council to obtain legal advice. The advice was that a planning permit was required for the keeping of the dogs. The Local Law application was withdrawn and a planning permit application for the use (not development) was lodged.

4. The subject site is known as Crown Allotment 23, Parish of Cobaw, and is some 4.5 kilometres north-west of Lancefield. It has frontage to Whalans Track (east) and Ashworths Road (north). The land has an area of 39 hectares and is currently used for cattle grazing. An existing dwelling is located on the property. There is an existing stand of native vegetation remaining.

5. The surrounding properties are mainly cleared and used for grazing and crop raising. The area was described by the Council as being developed for rural and rural living purposes. It is gently undulating in form with some stands of trees.

6. The closest dwelling is approximately 280-300 metres to the north of the subject site, opposite Ashworths Road. The next closest dwelling is around 400-430 metres to the south (that property is owned by the Applicants for Review).

7. The Cobaw Forest is approximately 400 metres to the west of the subject site.

8. It is proposed to use and develop the land for the housing and breeding of up to 15 Siberian Huskies while maintaining cattle grazing as the primary land use.

9. The permit that has been issued for a shed on the land shows the structure to be of corrugated sheet metal with wire mesh to part of the northern and southern elevations and the whole of the eastern elevation. It is 18 metres by 9 metres with a concrete floor. Kennels would be constructed within it.

10. The proposal involves the construction of an exercise yard, with dimensions of 150 metres by 50 metres. The yard is proposed to be surrounded by a 2 metre high, 17 strand, "deer fencing" with an electric fence along the lower perimeter.

11. It is understood that it is intended to breed an occasional litter of pups. This is estimated to be around once every two years with the purpose of maintaining the size of the group. Any surplus pups would be sold.

12. Siberian Huskies are involved in a recreational activity called "mushing". This involves harnessing the dogs to a mobile sled. The proposal involves minimal training on the site and instead, mushing will occur at other off-site locations, possibly including local roads or within parks where such activity is allowed. I understand that there are a number of clubs involved in sled dog racing.

13. The use is for private purposes only, that is, the use would not operate on a commercial basis for the boarding of dogs.

14. The subject site is zoned Environmental Rural under Clause 35.02 of the Macedon Ranges Planning Scheme ("the Scheme"). The purpose of the Zone is:

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

s To give effect to the environmental outcome specified in the schedule to this zone.

s To conserve and permanently maintain flora and fauna species, soil and water quality and areas of historic, archaeological and scientific interest and areas of natural scenic beauty or importance so that the viability of natural eco-systems and the natural and historic environment is enhanced.

s To encourage development and the use of the land which is in accordance with sound management and land capability practices, and which takes into account the environmental sensitivity and the bio-diversity of the locality.

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

15. The environmental outcome sought in the Environmental Rural Zone (Schedule 1) is:

s To ensure that land use within water supply catchments, most particularly proclaimed catchments, will not compromise water quality.

s To minimise the intensity of use and development and to control works, soil disturbance and vegetation removal in proclaimed catchments, forested and elevated areas.

s To protect the unique flora, fauna and landscapes that are fundamental to the character and biodiversity of the area from inappropriate land use and development.

s To protect the conservation and landscape values of adjoining public land.

16. The minimum subdivision size within the Zone (Schedule 1) is 40 hectares.

17. A planning permit is required to use and develop the land for the purpose of "animal keeping" involving more than two animals. This definition is nested with "animal husbandry" and "agriculture". It is noted that "animal boarding" is a prohibited use within the Zone.

18. The decision guidelines of Clause 35.02 require consideration of the provisions of Clause 65, as well as a range of matters that can be summarised as including:

s General issues including the State Planning Policy Framework, the Local Planning Policy Framework including the Municipal Strategic Statement and local planning policies.

s Rural issues including whether the use or development is compatible with adjoining and nearby farming and other land uses, and whether it would have an adverse impact on surrounding land uses.

s Environmental issues including any impact on soil and water quality and by the emission of noise, dust and odours and the impact on flora, fauna and landscape features.

s Design and Siting issues including the impact of any buildings and works with respect to the natural environment, major roads and vistas, and the location and design of existing and proposed roads and their impact on the landscape and whether the use or development will cause any significant traffic generation which will require additional traffic management programs to be initiated.

19. The land is affected by a Significant Landscape Overlay (Schedule 1) and a Wildfire Management Overlay. Whalans Track and Ashworths Road are affected by Vegetation Protection Overlays (Schedule 2 - Roadside Vegetation and Schedule 6 - Wildlife Corridors).

20. Other relevant provisions include Clause 22.01 (local policy relating to the Macedon Ranges and Surrounds), Clause 22.03 (Catchment Management and Water Quality Protection) and Clause 22.12 (Subdivisions and Buildings in Non-Urban Areas). Clause 15 of the Scheme addresses noise abatement.

21. The key issues in this Application relate to the potential impact of the proposed use on the amenity of adjoining residents and the nearby Cobaw National Park. Mr Townsend also referred to some matters which he submitted have yet to be fully resolved, such as the extent of training and breeding activities. I refer briefly to the policy framework that is relevant to this Application before turning to the key issues raised in submissions.

22. The State Planning Policy Framework and Local Planning Policy Framework provide policy direction in relation to this Application. The policy framework recognises the importance of both agricultural activities and environmental values within the Shire. While development is allowed, it is apparent that the environmental values within the Environmental Rural Zone are important and that the development and use of the land must be in accordance with sound management and land capability practices, and take into account the environmental sensitivity and the bio-diversity of the locality. The protection of land for agricultural activities is a further objective, maintaining the productive use of the land.

23. The subject site is within an Environmental Rural Zone, not a Rural Living Zone where residential use in a rural environment is provided for. The Environmental Rural Zone places particular emphasis on environmental values and specifies an environmental outcome that is sought. I have set that out in paragraph 15 above. While the locality has some features of a rural living area (given that a number of dwellings are sited relatively close to one another and as many nearby lots appear smaller than the minimum lot size in the Zone), amenity expectations must be considered in the context of the purpose of the Zone and the policy intent that emphasise rural activities while protecting flora, fauna and landscape values. The intent of the Significant Landscape Overlay reinforces the intent to conserve and enhance the character of significant landscapes.

24. There is nothing before me to suggest that the proposal will undermine the viability of the land for productive agricultural use or should be rejected for that reason.

25. I go first to some details of the proposal that Mr Townsend submitted remained uncertain. Mr Townsend submitted that the dogs may be trained around the perimeter fence of the subject site, within 130 metres of the Reynolds' residence. Mr Townsend also questioned the legality of training dogs on local roads.

26. Mr Cordani submitted that the dogs would be exercised in the proposed yard and that training or mushing around the land would not occur. Mr Cordani said that when dogs are individually trained to become "leaders", they are taken by leash to a road intersection to learn commands. As the Siberian Husky is an endurance dog, Mr Cordani indicated that mushing training would occur at locations external to the site, such as national parks or local roads where longer distances are available without the need to, for example, stop and start to open and close gates. Mr Cordani submitted that dogs can be taken into State Forests near to the subject site, as stated in correspondence from the Department of Natural Resources and Environment (a copy of which was tendered).

27. Mr Cordani submitted that at no time would any dog be allowed to run free outside of the exercise yards unless under adult control and supervision.

28. Mr Cordani explained that he intends to breed a litter once every two years.

29. Based on Mr Cordani's submission, I am satisfied that the proposed use is for animal keeping and that training and breeding are ancillary uses to the keeping of the 15 dogs on the property. This is not a Siberian Husky training track or a full breeding operation. However, it would be appropriate to limit training activities beyond the exercise yards by way of conditions. The issue of driving of dogs on public roads is a matter dealt with under other legislation.

30. The most significant issue in this Application is the potential for noise emissions. Mr Townsend referred to the Environment Protection Authority's Technical Guideline TG302/92 that addresses noise originating from dog kennels. The Guideline recommends a number of requirements for the development of kennels including, inter alia, that:

s dog kennels should be at least 500 metres away from residential areas, although problems can be caused by perpetual barking at distances greater than 500 metres. Calming measures should be employed.

s some fully enclosed or acoustically baffled kennels should be available to house particularly noisy dogs at a ratio of 1:15.

s electronic masking noise devices should be provided.

s the feeding of dogs should be restricted to 7am - 6pm and the exercise of dogs restricted to 9am - 5pm.

s a responsible person must be available on the site 24 hours a day.

s the kennels should be constructed of material that provide an appropriate reduction in the emission of noise (eg. masonry and cement sheeting).

s kennels should be positioned to utilise the topography to reduce noise.

31. Mr Townsend was critical of the lack of any acoustic treatment to the shed and submitted that the above criteria have not been met. He submitted that the absence of this information was crucial and should cause a permit to be denied.

32. Evidence in relation to acoustic impacts was provided by Mr Burton on behalf of the Applicants. He had measured existing background noise levels and utilised a number of examples of noise levels for dogs barking collected from three acoustic consultants (given that data specific to Siberian Huskies could not be obtained). Based on his analysis taking into account distance, ground attenuation, atmospheric absorption and winds, Mr Burton projected that noise levels to the nearest residences would well exceed the noise limits permitted under State Environment Protection Policy (Control of Noise from Commerce, Industry and Trade) No. N-1 (if it was to be applied) and a revised draft of Noise from Industry in Regional Victoria. The maximum levels were also said to be significantly above recommended sleep arousal thresholds. Mr Burton was critical of the lack of attention to the criteria in the Environment Protection Authority's Technical Guideline TG302/92.

33. I was provided with various information by Mr Townsend concerning the breed of Siberian Huskies. That primarily related to the extent to which the dogs bark, "woo", or howl.

34. In response, the submission by the Council was that the proposed use is sufficiently distant from existing dwellings to not cause unreasonable noise and that the Respondent has demonstrated a good understanding of the management and training of dogs to give comfort that the use will be well managed. The Council had contacted some of the referees provided by Mr Cordani.

35. Mr Cordani submitted that he currently holds 9 Siberian Huskies within a residential area in Sydney without complaint to himself or the local Council. He referred to the quiet nature of the breed and that the dogs will howl if lonely or not exercised. Mr Cordani submitted that his dogs are well looked after, frequently exercised, have little propensity to make noise and generally do not howl. He described the nosiest times as feeding and when the dogs are being let out of their kennels for regular exercise (that occurs several times a day). Mr Cordani also explained his involvement in peak groups, public education, charities and recreational mushing.

36. The Applicant's submissions were on the basis of standards for "dog kennels" whereas Mr Cordani submitted that the proposal is for his own animals and not commercial purposes. He submitted that the animals would be quieter as they are used to one another and the setting, in contrast to a boarding facility where animals come into contact with an unfamiliar environment and different breeds.

37. I now turn to my consideration of the submissions and evidence. I state first that I consider there is an obligation to ensure that surrounding land uses are not unreasonably prejudiced by noise, but that such consideration must have regard to the rural nature of the locality where noise associated with agricultural activities is common-place.

38. The proposal is for the keeping of 15 dogs which is a relatively small number when compared with boarding facilities (which would be prohibited in this Zone). While one can distinguish the proposal from a commercial kennel where dogs do not know one another and find themselves in a foreign environment, I find it important to ensure that the potential for excessive noise emissions is minimised or reduced to reasonable levels in the context of this site.

39. I give weight to the fact that the Environment Protection Authority's Technical Guideline TG302/92 refers to "dog kennels" and does not distinguish between commercial facilities and a large number of dogs kept for domestic or private use/purposes.

40. The nearest dwelling is within 280 metres (north) of the exercise yard and 330 metres of the kennel structure. The next closest dwelling is to the south and is within 410 metres of the kennel structure and 430 metres of the exercise yard. I am concerned that these distances are significantly less than the 500 metres upon which the Guidelines rely to ensure noise is attenuated by distance alone. The unchallenged evidence of Mr Burton is that noise levels that could be generated by the proposed use are well in excess of standards frequently used to control such a use as described in the Guideline. This is persuasive evidence.

41. My main concern is the lack of acoustic (and climatic) treatment to the approved shed. However, the permit for the shed has already been issued and there are no proceedings before me seeking to modify the shed or amend that permit. Having said that, I can readily envisage that with some appropriate measures in place, noise from the proposed use could be properly addressed and noise levels contained to what could be described as an appropriate level and to within the standards of SEPPN-1. This could be undertaken by way of proper sound absorption techniques and materials. The proposal is clearly inadequate in defining such works to be undertaken in association with the intended use.

42. I consider the feeding and exercising times should be restricted to accord with the EPA Guidelines and that can be addressed by permit conditions.

43. Mr Townsend submitted that there is the potential for dogs to escape and negatively impact on the nearby Cobaw National Park or livestock. He submitted that the breed has predatory instincts and is known to escape. In response, Mr Cordani submitted that dogs are allowed within National Parks and that the security proposed around the exercise yard and shed will ensure that escape is prevented. In addition, he noted the intent to maintain the property for ongoing commercial grazing activities and therefore he has a personal interest in ensuring that dogs do not harm livestock.

44. I accept that the measures proposed will enable the dogs to be maintained with the designated area without risk of escape (excluding human intervention or error).

45. No issues were raised in relation to the ability of effluent to be satisfactorily disposed.

46. The proposal does not require the removal of any native vegetation and some new planting as a visual screen is proposed. This is a positive element of the proposal in terms of the objectives of the relevant Zone and Overlay.

47. There are no visual impacts that should cause the proposal to be rejected, given that the shed is already approved and the exercise yard is some 200 metres from the nearest site boundary and will be screened.

48. I have no proceedings before me relating to the permit issued for the shed. However, I can require that the use must not commence until appropriate acoustic measures are detailed, approved by the Council, and the necessary works constructed. If the works require a separate planning permit, then that will be required to be submitted to the Council and considered in the usual manner. If the works are not approved by the Council or any required permit to alter the shed is not issued then the use can not commence.

49. In addition, I can impose a condition that noise emissions must not exceed standards set out in SEPPN-1.

50. Mr Cordani submitted that a number of modifications should be made to the conditions set out in the Notice of Decision. While I understand that some seek to clarify the conditions set out, the only variations I consider necessary are varying Condition 3 to refer to pups under the age of six months being kept on the site and varying Condition 9 to refer to Mr H and/or Mrs D Cordani. These changes were not opposed by any party.

For the above reasons, the Application for Review is allowed in part, and I will order that a permit issue in accordance with the Notice of Decision with some variations.