Ward v Baw Baw SC & Ors [2010] VCAT 1533

1. Leave is granted to the Applicant to:
   1. Substitute for the permit application plans, the amended plans marked as Revision A.
   2. Amend the description of the proposal to be "Boundary realignment and animal keeping (keeping and breeding of up to 20 greyhounds)".
2. In permit application no. PLA0313/09, the decision of the Responsible Authority is affirmed. A permit is not granted and no permit is to be issued.

Mr R Dent and Mr J O'Flaherty in person. Mr O'Flaherty indicated he also represented J Warn.

Application under Section 77 of the Planning and Environment Act 1987.

Boundary re-alignment to create two lots - one of 6.51ha and one of 18.69ha. The smaller lot would contain the existing dwelling and activities and structures associated with the proposal to use and develop the land for animal keeping (keeping and breeding of up to 20 adult greyhounds). Three to four dog litters per year are expected. The larger lot would not be used as part of the animal keeping operation.

Farming Zone. Development Contribution Plan Overlay. Environment Significance Overlay (ESO1 High Quality Agricultural Land) affects part of the land. Main Neerim Road is a Road 1 Zone although no alteration to the current site access is proposed.

• Clause 35.07 for subdivision, use and development.
• Clause 42.01 for subdivision.

Clauses 11, 12, 14, 15.01, 15.04, 15.05, 17.02, 17.05, 21 and 65.

The review site is on the east side of Main Neerim Road. It comprises two lots with a total area of 25.205ha. One lot is 1.316ha and the other is 23.89ha. The land contains a dwelling and several kennels/dog runs that are concentrated in the north-western part of the land. Several greyhounds are currently kept on the site. The immediate vicinity of the site comprises mainly rural living properties with a range of lot sizes.

1. Ms Ward proposes to use and develop the review site for animal keeping (keeping and breeding of up to 20 greyhounds) and, in association with this proposal, to re-subdivide the land. The proposed use would be contained within the 6.51ha lot that would be created by re-subdivision.
2. A permit application was lodged with the Baw Baw Shire Council for these purposes. The Council determined to refuse the permit application, a decision Ms Ward has requested be reviewed by this Tribunal. The Council's decision is supported by a number of nearby property owners and residents. The grounds relied upon by those opposing the permit application, which are all challenged by the Applicant, require me to determine the following key questions:
   • Is the use of the land for greyhound keeping and breeding acceptable in principle?
   • Would the proposed use have unreasonable off-site adverse impacts?
   • Is the proposed boundary-re-alignment acceptable having regard to the purpose of the Farming Zone and applicable Scheme policies?

Is the use of the land for greyhound keeping and breeding acceptable in principle?

1. While the suitability of the proposed use in a Farming Zone was not disputed by the Council, a number of submissions referred to the proposal as an inappropriate commercial use that is not agricultural in nature and is not appropriate in this location as a matter of principle.
2. I do not accept those submissions. Animal keeping is nested in the Scheme's definition of agriculture. It is suitable in principle and can be likened to other enterprises such as horse studs. This has been recognised in many Tribunal decisions. For example, in Lockwood, the Tribunal said[2]:

Greyhound keeping and training is generally an appropriate use of land within a rural zone. Greyhound keeping, like intensive animal industries are perhaps not earth based like more traditional agricultural activities, but do require quite large site areas for their own purposes, and reasonable buffer distances from other sensitive uses such as dwellings. While for uses such as poultry farms and piggeries buffer distances are primarily required because of the emission of odour, in the case of greyhound keeping it is the emission of noise which leads to the need for a buffer. It is because of these characteristics that rural zones usually have the most suitable sites.

1. Part of the review site is within ESO1. That is identified as being high quality agricultural land. I make findings with respect to the proposed subdivision later but at this stage it is relevant to note that the proposed use would not be sited in the ESO1 area. It does not, therefore, alienate high quality agricultural land having regard to the area defined in the Overlay.
2. The suitability of the review site for the proposed use is determined by a range of physical considerations that represent opportunities and constraints. The critical consideration in the circumstances is the proximity of existing dwellings. The closest dwelling is less than 100 metres from the edge of the nearest proposed kennel with two other dwellings less than 100 metres from the existing shed that would be used to house racing greyhounds. Some seven dwellings (including one with three B&B units) appear to be within 200 metres. It was estimated by the parties that 15 or 16 dwellings would be within 500 meters. These residences surround the site to the north, west and south-west. Many properties have an appearance of rural living lots although they are in the Farming Zone; a Zone that seeks to control dwellings. Dwellings around and near the review site do not gain priority in an assessment given the purpose of the Farming Zone however, residents are entitled to a reasonable level of amenity. Decision guidelines in the Zone confirm that questions of a proposal's compatibility with adjoining land uses is a relevant matter. I address this next.

Would the proposed use have unreasonable off-site adverse impacts?

1. Three juvenile pens are proposed to be setback 10 metres from the site's main road frontage. Two rows of pens would be behind; they would be setback a minimum of 20 metres from the northern boundary. The main shed would be 25 metres from Main Neerim Road. A hand slipping facility and day yards would be further east on proposed Lot 1. The existing shed would be retained for up to four racing dogs.
2. Some dwellings in the immediate environs of the proposed greyhound establishment are within a line of sight of the proposed pens and sheds insofar as there is no intervening topography and they sit higher in the landform. Plantings on private land and along the roadside would variously mask the visibility of the proposed premise. That vegetation would not, however, attenuate noise although it would reduce visual stimuli that could excite dogs.
3. The proposed setbacks for the greyhound facility are considerably less than a figure of 500 metres "from residential areas" referred to in the Environment Protection Authority's Noise Control Guidelines. However, I do not consider it can fairly be said that the dwellings in the vicinity of the review site are a residential area in the terms usually applied in planning assessments particularly given the zoning that applies and the lot sizes.
4. Moreover, those Guidelines do not distinguish between kennels for different purposes (ie. general boarding kennels vs greyhound training), a point that has been the subject of discussion in some Tribunal decisions[3].
5. For these reasons, I do not, therefore, consider the proposal can fail because it does not comply with the Noise Control Guidelines in terms of the setback distance.
6. The proposal accords with setbacks for a category 2 facility included in the Code of Practice for the Greyhound Industry[4]. The Code's setbacks are intended to minimise noise impacts on adjoining properties. The Code states with respect to noise emissions (in part) that "All establishments must meet the relevant noise standards as set by the State Environment Protection Policy (N1)". There is no indication that the Code's setbacks are sufficient to achieve compliance with SEPPN-1 and it cannot be assumed to be the case. The EPA's publication N3/89 Interim Guidelines for Control of Noise from Industry in Country Victoria is included in Clause 15.05 of the Scheme and is another relevant consideration.
7. A decision as to whether SEPPN-1 and/or N3/89 are met requires an acoustic assessment to take into account the specific circumstances that include a large number of residences in relatively close proximity to the proposed greyhound facility. No assessment has been undertaken. When I asked about this at the hearing, Mr McCaffrey referred to the ability for permit conditions to require compliance with SEPPN-1. He said this would not be unusual for this type of land use. He said the kennels would be acoustically treated and, through the management of activities on the land such as feeding times, the necessary level of acoustic amenity to comply with SEPPN-1 could be achieved. Permit conditions would, in his submission, provide the basis for any nuisance to be addressed.
8. I am aware that this approach has been accepted in other situations, such as Evans[5], a case to which Mr McCaffrey referred. The circumstances were however different, including the isolated nature of a very small rural living enclave and the fact that the use was operating. My concern about adopting the approach advocated by Mr McCaffrey in the context of the fairly settled environs review site is that it is uncertain as to whether compliance can actually be achieved with SEPPN-1 and/or N-3. It is also uncertain as to what might be necessary to achieve compliance. For example, would there need to be greater separation between the kennels/pens and dwellings in other land holdings? Would any repositioning of kennels/pens impact on land within ESO1? Would the proposed boundary realignment need to be altered? Would there need to be any additional works to provide acoustic attenuation? Would there need to be more obligations imposed on a permit to provide for specific operational and management practices?
9. I am not, therefore, persuaded to defer this matter to permit conditions. The decision guidelines in the Scheme require me to be satisfied that the use can be located on the land in a manner that is sufficiently compatible with adjoining and nearby land uses and that it can be managed in an orderly and practical manner. I have not been satisfied on either point based on the information available to me. While I accept that the kennels and shed can be acoustically treated, it is relevant to my conclusion that a significant amount of activity associated with the breeding and keeping facility will be external to the kennels in yards that are close to the site's boundaries.

1. The built facilities required for the proposed use would be located relatively close to the north-west portion of proposed Lot 1, near to property boundaries and the main road. There is a walking trail abutting the main road.
2. The presence of the shed and kennels would be obvious even with the existing roadside planting but I do not consider this to be fatal to the permit application. These types of structures are not out of character with the surrounding farming or rural living setting. I do not consider that they would be unreasonably intrusive having regard to additional boundary planting that is proposed in the permit application. While the Council was concerned that the visual screening would add to the rural residential presence I do not think the proposal can fail for that reason. I agree, however, that a deeper setback for the shed and pens would be beneficial.

1. The potential for odours to affect the amenity of neighbouring properties was a further concern raised. I am not inclined to accept this will be a problem provided the facility is kept clean and managed in accordance with the Code and other relevant standards such as the Code of Practice for the Operation of Greyhound Establishments by the Department of Primary Industries. This matter could be dealt with by conditions.

Is the proposed boundary-re-alignment acceptable having regard to the purpose of the Farming Zone and applicable Scheme policies?

1. Mr McCaffrey explained that the boundary realignment is required to facilitate the establishment of the proposed agricultural activity. He submitted the use would not remove land from agricultural production, would not diminish the viability of the balance lot and would not affect the use of adjacent sites for primary production.
2. The Council and Objectors disagreed. They submitted the proposal would reduce the size of the balance lot and thereby limit its potential to be used for sustainable farming production.
3. Ms Tyson submitted the benefits of realigning boundaries to create a larger rural living lot and the greyhound facility do not outweigh the negative impacts of reducing the larger lot.
4. The State and local policies are strongly focused on maintaining the integrity of the agricultural land resource. Local policy emphasises that the Shire has some of Australia's most fertile and productive rural land. The review site comprises land that has been identified as having high agricultural quality as recognised through the application of ESO1. The proposed greyhound facility appears to be outside this Overlay area. What is unacceptable in my view is the reduction in the size of the balance lot which is mostly within ESO1. The lot is already well below the minimum of 40ha that is intended by the Overlay and local policy to protect the precious resource of high quality agricultural land. The proposal would reduce that size further without strategic justification and with the probable consequence of the lot being increasingly likely to become a lifestyle lot. This is directly at odds with the environmental objectives to be achieved in ESO1, State and local policy.

Do any other matters warrant rejection of the permit application?

1. Several other matters were raised in opposition to the proposal such as concerns about the safety of Main Neerim Road with vehicles turning into the site, waste management, dog escape, potential non compliance with permit conditions, the ability to enforce conditions and impacts on property values. Given my earlier findings, I do not intend addressing these in detail. It will suffice to summarise my conclusions that none of these concerns cause the permit application to fail. Some matters could have been addressed by permit conditions although I record that I do not consider any extensive road works would have been necessary with respect to access into and egress from the review site.

1. For the above reasons, I will affirm the decision made by the Responsible Authority and direct no permit be issued. I do not consider the proposed re-subdivision of the land is acceptable having regard to the purpose of the Farming Zone and ESO1. In addition, I have not been persuaded on the information available to me that the noise impacts arising from the proposed use would be acceptable based on the applicable guidelines referred to in the Baw Baw Planning Scheme.

[1] In reaching a decision I have considered all submissions and all material tendered and filed by the parties. I do not, however, recite all of that material in these reasons.

[2] Lockwood v Macedon Ranges SC [2001] VCAT 2149 at paragraph 4.

[3] For example, Hollands v Welllington [sic] SC [2006] VCAT 1998 and Frigo v Macedon Ranges SC [2006] VCAT 2080.

[4] March 2008 by Greyhound Racing Victoria. This is not incorporated into the Planning Scheme.

[5] Evans v Strathbogie SC [2008] VCAT 1209.