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For the Objectors: Mr B Jacobs, Bryan Tyquin and Julie Tyquin appeared in person.

1. This was an application under section 82 of the Planning and Environment Act 1987 to review a decision by the Shire of Macedon Ranges to grant a permit in Application No. P201/0205 for the land at 45 Fersfield Road, Gisborne be used for the purpose of the keeping of one pig, in addition to its current use for a dwelling.

2. The site is regular in shape and has a frontage of 65.24 metres, a depth of 186 metres and an area of 1,214 square metres. The site is currently occupied by a dwelling.

3. The Parks' formerly kept a variety of animals on their land but in the face of opposition from neighbours due to odour emission from the chicken shed have limited their pets to three pigs. There was a debate between advice given to Council from the Department of Infrastructure (which suggested no planning permission was required) and the Responsible Authority's own interpretation of the planning scheme which led them to form the opinion that as the pigs were not your ordinary domestic animal, such as a dog or a cat, a permit would be needed to keep more than two of them pursuant to the section 1 land use of animal keeping. The Parks initially applied to keep three pigs but amended their planning application for the keeping of one pig, having been advised by the Responsible Authority that they could keep two pigs without any planning permission.

4. What the Parks really want is to keep three pigs on the subject land. The Council agrees with the Parks that these pigs are being kept as pets of the Parks, they are neither being boarded nor bred by the Parks. As Mrs Park explained:

"I will begin by firstly, and perhaps most importantly, stating that our pigs are our family and pets only. As we do not have children, both my husband and myself lavish our care and money on the keeping of these animals. They are an intrinsic part of our household and we could not imagine our lives without them. Our pets are all house trained and occupy a room situated next to our main bedroom during the sleep times."

5. After the Parks amended their application to the keeping of one pig, the Responsible Authority issued a Notice of Decision to grant a permit for "the keeping of one pig". Conditions attached to the permit included:

1. This permit shall expire if the land is not owned or occupied by Neil and Maggie Park.

2. The pig shall be confined to the property by means of appropriate fencing in accordance with attached endorsed plan and housed in accordance with the endorsed plan.

3. All waste associated with the keeping of the pig shall be collected daily and placed in sealed containers and disposed of off-site to the satisfaction of the Responsible Authority.

4. All grain associated with the keeping of the pig, shall be kept in sealed containers to the satisfaction of the Responsible Authority.

5. The site shall be so ordered and maintained as not to prejudicially affect the amenity of the locality by reason of appearance.

6. Should any condition of this permit not be compiled with, the Responsible Authority will seek cancellation of the permit pursuant to Division 3 of the Planning and Environment Act 1987.

6. The Parks have not appealed against any of these conditions.

7. The inclusion of a condition personal to the Parks is a somewhat unusual one in the planning process where permits, as a general rule, run with the land. This indicates housekeeping and management issues concerning the pigs (at least in Council's mind) which are clearly a level above normal permit conditions which run with the land.

8. The Parks submitted the following information with their application for planning permit:

Pigs are extremely clean animals. The "stigma" surrounding them and their "smell" or dirtiness relates solely to those animals kept in commercial situations such as intensive piggeries. As you may be aware, often the animals are kept grouped together in rather small enclosures and the animals are forced to defecate in a designed space. It is obvious that any animals kept in such conditions would collectively smell. Pigs in fact, have no body odour unlike dogs or most other types of livestock. Whilst it is true that they enjoy a dirt bath, this is a function used only to cool their body temperatures during the summer.

Collecting of manure is done on a daily basis, sometimes as often as twice daily. Again, as opposed to a piggery situation, if left to their own devices and allowed to "free range" as our do, pigs generally choose a particular area where they typically defecate and urinate. Unlike horses or livestock, a pig will go to his place of choice and defecate/urinate in that area. Therefore, it is extremely easy to clean up after them. (It should also be noted that the dog faeces is also collected at this time). On weekends we remove all manure to the Bullengarook Tip. It is stored in airtight bins until that time and therefore has no escaping odour.

We have no intention of breeding with our pigs. Of the three, there are two females and one male. Both the male and one of the females are desexed and we have still one female to neuter. All pigs have been vaccinated (documentation of this can be obtained) and they are wormed regularly. We most definitely do not intend to add any more than three pigs to our property. It should also be noted that our pigs have "bred down" - by this they are not full size such as a large white. Accordingly they are each approximately half that size.

We feed the pigs only the very best. They (in accordance with swine laws) are never fed foods containing meat of any description. Fresh or cooked vegetables, lots of fresh fruits, pig pellets; bread and other healthy foods are fed daily. As well, they are able to graze at will when grass is available. All food is kept in our shed in airtight containers and hay is stacked in this area.

Pigs are naturally very lazy animals. The fourth most lazy of all animals in fact. Consequently, they spend the large majority of their day sleeping. I have observed that they spend something like 45 minutes close to their shed eating lucerne hay in the mornings and then typically retire to their beds for the best part of the day. Around 5 to 6pm they again rouse themselves and forage and walk around for a further hour or so. When we arrive home from work around 6pm, we feed them and let them out to our grassy area for a pick of grass, They are supervised during this time.

PLANNING CONTROLS AND CONSIDERATION OF THE DEFINITIONS

9. The land is zoned Residential 1 under the Victoria Planning Provisions (VPP) format Macedon Ranges Planning Scheme. Within this zone no permit is required for uses ancillary to use of land for a dwelling or residential purposes, which is the use to which the Parks put the land. A Development Plan Overlay attaches to the land, but is irrelevant as no development is proposed here - only land use.

10. A permit is also not required for use for the purpose of animal keeping which term is especially defined in the Scheme, provided no more than two animals are kept on the land.

Section 1 - Permit Not Required

11. It was the Responsible Authority's opinion that two animals were automatically permitted under this section that persuaded them to grant a permit for "the keeping of one pig" (being the third pig in question).

12. A_nimal boarding_ is specifically excepted from animal keeping in this zone. Animal keeping (other than animal boarding) of no more than five animals requires planning permission pursuant to Section 2 of the Residential 1 zone. Animal boarding and animal training are prohibited Section 3 uses, as are horse stables and intensive animal husbandry. A_griculture_ and animal husbandry (which is included in the a_griculture_ definition) are permit-required section 2 uses.

13. The question this raises is "does the keeping of three pet pigs fall within the definition of animal keeping"?

14. Animal keeping is defined in clause 74 of the Scheme as_:_

15. Pursuant to clause 74, a term listed in the first column, under the heading "Land Use Term" has the meaning set out beside that term in the second column, under the heading "Definition", so that one must apply that definition as opposed to what might be considered its ordinary English meaning.

16. In the Macquarie Dictionary breed is defined as producing offspring or propagating whereas board is defined as the supply of [food and] lodging at an agreed price. The Council was clear that the Parks' neither bred pigs nor boarded them, but instead just kept them as their pets. I agree with the Responsible Authority that the Parks' are neither breeding nor boarding their pigs, but are keeping them as pets.

17. Cats and dogs are common pets. It is just that pigs and tortoises and carpet snakes are less common as pets, though they may or may not be pets.

18. A pig is not what is normally considered a domestic pet, such as a cat, dog or budgie. It is a farmyard animal. Because the definition of animal keeping in clause 74:

(i) incorporates the element of domestic pets (except in the specific case of racing dogs);

(ii) incorporates elements of breeding or boarding;

(iii) does not incorporate an element of merely keeping except in the specific case of racing dogs

I am of the opinion that what the Parks are doing does not fall within the definition of animal keeping.

19. Pursuant to Section 2, Clause 32.01-1 a permit is required for agriculture (other than animal keeping, animal training, apiculture, horse stables and intensive animal husbandry) Animal husbandry is included in the definition of agriculture in the definition section of the planning scheme.

20. The second question raised is whether what the Parks do, if it does not fall within animal keeping, falls within agriculture thus needing a permit. Do they require a permit under the much broader catch-all or phrase of animal husbandry which is included in the definition of agriculture. Agriculture is defined in the planning scheme as:

"Land used to keep_, breed, board, or train_ animals_, including livestock, and birds ....."_

"Land used to keep_, breed, board, or train_ animals_, including birds"._

21. The difference between animal keeping which deals with domestic pets or racing dogs and breeding and boarding on the one hand, and animal husbandry which addresses any and all animals, whether domestic animals, farm animals or wild animals, and includes the element of merely keeping on the other hand, is however, notable.

22. It is also interesting to note that animal husbandry includes within its nesting definition both extensive animal husbandry and intensive animal husbandry, both of which latter definitions are "the keeping or breeding of farm animals" at varying intensities depending on the definition. However, one would not normally associate the keeping of three pet pigs with the term animal husbandry. It would be absurd to do so and would certainly be very contrary to the ordinary English meaning of the expression.

23. Although the Parks' use of their land appears to fall within the broad catch-all term of animal husbandry, if that were a separate use of the land it would require planning permission, pursuant to clause 64 which reads:

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

24. The essential point is that the Parks keep their pigs as pets. As such, they are an ancillary aspect of the use of their land as a dwelling. It comes into the same category as stamp collecting or a flower garden. No permit is needed for a dwelling. Therefore there is no need for planning permission for ancillary aspects of the use of the land as a dwelling. Because it is an ancillary use of their land, I consider a permit cannot be granted. There may be other laws that could relate to the activity - Local Laws, Health Act, law of nuisance - but that is beyond planning law.

25. The Shire of Macedon Ranges has an animal control local law - Local Law No. 1. Pursuant to that local law, Clause 5.6 reads:

(1) No person shall without a permit keep any pigs on land or in any premises in a township area.

(2) No person shall without a permit keep any pigs on land or in any premises in a gazetted water catchment.

(3) No person shall without a permit keep more than two pigs on land or in any premises unless the land area exceeds 40ha.

(4) No person shall without a permit keep more than four pigs on any land or in any premises.

Note: "The Macedon Ranges Planning Scheme may require a permit or prohibit the keeping of any pigs within defined areas of the Municipal district"

26. Ms Coral Young, Planning Officer for the Shire of Macedon advised that the subject land is in a township area for the purpose of the Local Law.

27. Therefore a Local Laws Permit is required, irrespective for the need for any planning permission, for the keeping of even one pig. However, that is a matter that is quite separate from the planning laws.

28. Whereas the neighbours, the Tyquin's, strenuously opposed any planning permission being given for the keeping of any pigs on the land, the neighbours on their other side, the Jacobs, were not so opposed provided there were two particular conditions added to the permit, namely the relocation of the pig pen and pooing area away from their side and the construction of an open drain along the western boundary of more than half of the Parks' abuttal with the Jacobs.

29. I discussed with the Responsible Authority, and confirmed, the latter's ability to impose such permit conditions on a Local Laws Permit that would need to issue under the Shire's local law. Mr Jacobs prepared a transparency indicating a more appropriate position for the pig pen and pooing area closer to the Parks' house rather than its current location abutting the Jacobs fence and closer to the Jacobs' house. That transparency, which is identified by Mr Jacobs' firm, Jacobs Pty Ltd Building Designer, is a reasonable response to the issues that could be implemented by the Council when it comes to implementing its local laws powers. The transparency remains on the Tribunal file and can be referenced by the Council when imposing local laws permit conditions.

30. The Parks are not breeding their pigs, nor keeping them for breeding purposes. Nor are they `boarding' their 3 pigs for other owners. They are merely `keeping' them as their pets. That being the cases, and the pigs not being racing dogs, they slip out of the "animal keeping" definition. Nor do they fall in the "animal husbandry" definition because theirs is an ancillary domestic residential land use.

31. 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, but it is my opinion that the keeping of only three pet pigs as pets has not crossed the border from an ancillary use, to a separate use requiring planning permission. For the sake of good neighbourliness the Parks should correct drainage problems on their land and keep the pigs penned in an area where they are able to manage and control the disposal of pig faeces which area should be adjacent to their own house and not that of their neighbours. If they do not do so, they may be liable under nuisance laws or the Council's local law.

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