2. Once the development has started it must be continued and completed to the satisfaction of the Responsible Authority. Should the use not commence or the use cease for a period of more than two years, all buildings and works approved by this permit shall be removed from the site at the written direction of the Responsible Authority.

3. The amenity of the area must not be detrimentally affected by the use or development through the:

(a) Transport of materials, goods or commodities to and from the land.

(b) Appearance of any building, works or materials.

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

4. This permit allows the use of the land only by Rodney George Simmons of 2 Walsh Court, Mill Park. If Rodney George Simmons ceases to use the land, this permit will expire.

5. All feed must be contained in metal containers to the satisfaction of the Responsible Authority.

6. All diseased birds must be immediately removed from the lofts and disposed of to the satisfaction of the Responsible Authority.

7. All lofts must be maintained in a clean and tidy state free of pigeon feathers and droppings. The racing loft must be cleaned daily and the stock loft cleaned at least twice a week, to the satisfaction of the Responsible Authority.

8. Waste material shall be stored and/or removed to an approved site to the requirements of the Responsible Authority.

9. Not more than 120 pigeons (40 stock pigeons and 80 racing pigeons) must be kept on the land.

10. On cessation of active racing the pigeons shall not be released in the local vicinity for any reason whatsoever.

11. The pigeons shall not be released for local flying for more than two (2) hours per day.

12. Vermin baits shall be laid at three monthly intervals and at intervening times if required by an officer of the Responsible Authority.

13. This permit will expire if one of the following circumstances applies:

* The development and use is not started within two years of the date of this permit.

* The development is not completed within two years of the date of this permit.

The Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires or within three months afterwards.

The use and development must comply with the Responsible Authority's General Local Laws (Pigeon Keeping) to the satisfaction of the Responsible Authority.

_______________________ _________________________

Mr Roger Sucic, Town Planner, represented the Responsible Authority.

Mr Tom Callander, Solicitor of Rigby Cooke Lawyers, appeared for the Applicant for Permit/Applicant for Review, Mr Rodney Simmons. Mr Simmons gave sworn evidence. Mr Callander also called Mr John Share to give evidence.

The written submissions of the parties, the witness statements, together with numerous photographs, plans, policy documents and other material tendered at the hearing, have been retained on the Tribunal's file.

1. Enforcement Order Application No. 1999/47374 is an application under s. 114 of the Planning and Environment Act 1987 brought by the City of Whittlesea ("the Council") for an enforcement order against Mr Rodney Simmons, in relation to the unauthorised breeding and keeping of pigeons at 2 Walsh Court, Mill Park ("the property"). The Application came before us on 15 November 1999 and on 22 November 1999 we made an enforcement order requiring Mr Simmons to cease keeping more than 40 pigeons on the property. At the same time the Application was adjourned to 28 February 2000 to allow time for the Council to consider Mr Simmons' application for a permit to keep and race 140 pigeons (Application for Permit No. 70555).

2. Application for Review No. 1999/38611 is an application by Mr Simmons, under Section 77 of the Planning and Environment Act 1987, to review the decision by the City of Whittlesea to refuse to grant a permit in Application for Permit No. 70555.

3. At the commencement of the hearing and pursuant to Clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998, Mr Callander, who appeared for Mr Simmons requested the Tribunal to amend Application for Permit No. 70555 so that permission was sought for "the keeping and breeding of up to 120 pigeons (up to 40 stock pigeons and 80 racing pigeons)", rather than 140 pigeons. This request had been foreshadowed in a letter, dated 24 February 2000, sent to the Registrar and the Responsible Authority.

4. The Council offered no objection to this amendment and we made the amendment in the manner requested.

5. Mr Callander also submitted that if the Tribunal determined that a permit was required for the outbuildings associated with the proposed use, Application for Permit No. 70555 would need to be further amended so that permission was sought for the construction of these outbuildings. In our view it is appropriate to amend the application for permit to include the construction of and placement of two outbuildings (two lofts and a feed shed) for those purposes.

6. Mr Callander's letter of 24 February 2000 also gave notice of legal contentions to be relied upon by Mr Simmons regarding the need for a planning permit. At the commencement of the hearing Mr Callander contended that a permit was not required and that the Tribunal should make a declaration to that effect. In this regard he contended that the keeping and breeding of pigeons was a concomitant hobby component of the "dwelling" use or at the very least ancillary to the dominant purpose of dwelling and the lesser purpose was thus legitimised. He relied on a decision of the Supreme Court in Cascone v City of Whittlesea (1993) 11 AATR 175. In that case Ashley J summarised the principles governing whether a proposed use was or was not ancillary to another dominant use. It is apparent from his Honour's decision that where a particular use was only ancillary in planning terms there was but one purpose, the dominant purpose.

7. In the present case, it was argued by Mr Callander that if the keeping of pigeons was purely an ancillary use to a dwelling, a permit was not required for the use. In this regard the subject site is situated in a Residential 1 Zone. The second stated purpose of the Residential 1 Zone in Clause 32.01 is:

To provide for residential development at a range of densities with a variety of dwellings to meet the household needs of all households.

Dwelling is a permit not required Section 1 use in the table to Clause 32.01-2. Dwelling is defined in the land use terms in Clause 74 and it includes "outbuildings and works normal to a dwelling".

8. We are unable to accept that the keeping of pigeons is merely ancillary to a dwelling in the circumstances that pertain here. The activity proposed by Mr Simmons is of substantial scale and intensity. It is apparent from his evidence that the activity requires considerable maintenance of the lofts to keep the pigeons in clean and hygienic conditions. Lofts are cleaned out each day and waste is put into used feed bags and then into waste garbage bins and taken off the site. The pigeons are exercised twice daily for about an hour at a time when they fly out of the lofts and they are trained to return to the loft immediately for feeding or watering. Swabs of the pigeons are regularly sent to a vet for checking and the birds are fed vitamins and general medical supplements. During the racing season (between March and May for younger birds and June to November for the main races) Mr Simmons races a maximum of 30 birds, once a week on weekends. He takes the pigeons to a collection point and then they are taken to a release point. He times the pigeons' return by taking a band off their leg and clocking it on a chronometer.

9. It was submitted by Mr Callander that the hobby of racing pigeons is no different to the hobby of, for example, carpentry or pottery and that hobbies have always been part of the use of land for dwelling or residential purposes. In our view it is not to the point that pigeon keeping is a hobby. It is the nature of the activity just described, including the number of birds involved, which persuades us that the keeping of pigeons in the circumstances that pertain here is not ancillary to a dwelling.

10. Mr Callander referred us to two decisions of the Tribunal_, Schreiber v City of Berwick_ (P87/1848) and Gal v City of Berwick (P87/2179) in which the Tribunal found that no planning permit was necessary for the keeping of pigeons for racing purposes as a hobby. In Schreiber's case it was found that the activity was a hobby and that a pigeon loft for that purpose was an appurtenance of the dwelling. In Gal's case the Tribunal found that the use was incidental and ancillary to the residential use of the premises and as such did not require a permit under the then operative planning controls. It is not clear what evidence was before the Tribunal in each of those cases as to the nature of the activity proposed. It would appear however that Schreiber's case involved a loft for 60 racing pigeons and that Gal's case was concerned with the proposal for 50 pigeons. On that basis alone we consider that the present case, involving as it does 120 pigeons, is not on all fours with those cases. In these circumstances and having regard to our findings it is our view that the proposed use requires a permit.

11. A hearing of Enforcement Order Application No. 1999/47374 was first held on 15 November 1999. The reasons for the enforcement order made by the Tribunal, on 22 November 1999, form a background and should be read in conjunction with these reasons. In particular, the earlier reasons set out the history of the use of the site for the keeping of pigeons and detailed an earlier attempt by Mr Simmons to obtain a planning permit to race and keep 250 pigeons.

12. The subject site is located in the bowl of Walsh Court, Mill Park. It is irregular in shape and has an area of 714m2. It is developed with a single storey detached dwelling.

13. The site is within a residential precinct first developed in the mid to late 1980s. Boundaries are shared with Nos. 1 and 3 Walsh Court and three properties to the north which have frontages to Scullin Street.

14. It is proposed to accommodate up to 120 pigeons in two lofts (a race loft and a stock loft). The lofts are erected in the north-east corner of the site.

15. The race loft measures 2.4m by 5m and has a height of approximately 2.4m. It is constructed of wood and galvanised iron and sits on bricks, raising it slightly above the ground. Wastes are directed to trays under the floor which are cleaned from outside. The loft is situated approximately 4m from the rear of the dwelling and 2m from the rear fence. Up to eighty racing birds would be accommodated. The number would vary over the year. Racing birds would be let out twice a day for exercise.

16. The stock loft measures 4m by 2.4m and has a height of approximately 2.4m. It is constructed of a colourbond material and wire. Up to forty breeding birds would be permanently contained in the loft.

17. A feed shed is located in the north-west apex of the site.

18. The subject site is zoned Residential 1 under the provisions of the Victoria Planning Provisions format Whittlesea Planning Scheme. The purpose of the Residential 1 Zone in Clause 32.01 is as follows:

* 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 development at a range of densities with a variety of dwellings to meet the housing needs of all households.

* In appropriate locations, to allow educational, recreational, religious, community and a limited range of other non-residential uses to serve local community needs.

19. The Council maintains its contention, first put at the hearing on 15 November 1999, that the keeping of pigeons falls within the Agriculture Group of definitions shown in the nesting diagram at Clause 75 of the Planning Scheme. The proposed use falls within the land use term "Agriculture" or within "Animal Husbandry" (which is included in "Agriculture).

20. The definition of "Agriculture" in Clause 74 of the Planning Scheme includes:

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

Alternatively, the land use term "Animal Husbandry" has the definition:

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

21. Pursuant to the Table of Uses in Clause 32.01-1 of the Planning Scheme within the Residential 1 Zone the use of land for "Agriculture" or "Animal Husbandry" is a Section 2 use requiring a planning permit.

22. This characterisation was the basis of the Tribunal's order of 22 November 1999 that the Respondent is in breach of Clause 32.01-1 pursuant to which pigeons fall within the definition of "Animal Husbandry" and/or "Agriculture" in that he keeps pigeons without a planning permit.

23. Clause 65 of the Planning Scheme sets out the decision guidelines which apply. These include the State and Local Planning Policy Frameworks, the matters set out at Section 60 of the Planning and Environment Act 1987 and any effect on the amenity of the area.

24. Mr Sucic highlighted relevant provisions of the State Planning Policy Framework as :-

Clause 13 - principles of land use and development.

25. The Local Planning Policy Framework incorporates the Council's Municipal Strategic Statement ("MSS") at Clause 21 of the Planning Scheme. Mr Sucic highlighted that the MSS states that urban areas should:

Allow the establishment of a range of activities within residential areas only where the activities serve a local function, do not cause a detrimental impact on residential amenity and do not increase the potential for inappropriate encroachment of commercial activities into defined residential areas.

Council's Consideration of Application for Permit No. 70555.

26. The Application for Permit was lodged with Council on 11 November 1999, seeking permission for the accommodation of up to 140 pigeons in two lofts.

27. Notification of the application was given by the erection of a sign on the site and directly to adjoining property owners. As a result, four notices of objection were received. Mr Sucic summarised the grounds of objection as follows:

2. Excessive pigeon droppings in neighbouring backyards, roofs, clotheslines, footpaths, etc.

8. Residents are restricted from using their private open space areas.

9. Keeping 140 pigeons is inappropriate in an intensively developed residential area/reduced amenity.

28. Objections from Mr R McHugh (2 Scullin Court) and Michael Pinto (3 Scullin Court) were subsequently withdrawn.

29. At its meeting on 21 December 1999 the Council resolved to refuse the application on the following grounds:-

1. The proposal is contrary to the purpose and intent of the Residential 1 Zone which encourages non-residential uses which do not cause loss of amenity to residents of the surrounding area.

2. The proposal has the potential to have a detrimental impact on the surrounding area by generating noise, creating offensive odours and attracting flies and vermin.

3. The use is more appropriate in a rural/semi-rural area.

30. Mr Simmons' application for review, dated 30 December 1999, states the following grounds:-

1. The proposed use is in accordance with the provisions of the Planning Scheme.

2. The proposed use is a normal and reasonable use ancillary to a residential use.

3. The proposed use does not cause any or sufficient detriment to the amenity of the area to justify the refusal.

4. Insufficient evidence has been submitted to support the grounds of refusal.

5. The Responsible Authority has adequate powers to ensure that no nuisance or health risk is created by the undertaking of the proposed use.

31. Two basic issues arise: Whether the proposed use and development is appropriate in a suburban environment and whether the use will result in unreasonable amenity impacts.

32. It was not argued that the buildings associated with the use are inappropriate. Although the lofts are visible from the Court, vegetation largely screens them from neighbouring properties.

33. Mr Simmons breeds and races pigeons as a hobby and currently resides at the subject site. Given the daily maintenance involved in the activity, the location of the lofts is no doubt convenient for the Applicant.

34. The Council argued that the proposed use is contrary to the purpose and intent of the Residential 1 Zone. It was argued that the use is likely to cause detriment to an intensely developed, high quality residential area. The Council considers that it would be more appropriate in a rural or semi-rural area where the potential to cause detriment would be minimised.

35. The parties referred to a number of "pigeon cases" which have been decided by the Tribunal and its predecessors over the years. In particular, the Council referred to Carlton D'Souza v Shire of Moorabool (Appeal No. 1995/17768). In that case Mr Gould determined that a permit should not issue for the keeping of 150 pigeons on a 1260m2 residential property at Bacchus Marsh.

36. The configuration of the allotments and dwellings and the strong objection of a neighbour were important factors.

37. Amongst the cases referred to by Mr Callander was Allan v Shire of Melton 21 APAD 385. In that case Mr Kinder directed the issue of a permit for the keeping of 80 racing pigeons in a residential zone. He held that the use would not constitute a health risk, it was unlikely that the extent of bird droppings would constitute a nuisance, noise would be minimal and the use could be conducted without detriment to the neighbours' amenity.

38. Ultimately, we do not consider that the earlier cases greatly assist us in deciding the matter before us. The Residential 1 Zone provides for non-residential uses which do not cause a loss of amenity to the residents of the surrounding area. An assessment needs to be made of the specific proposal in these terms.

39. A list of potential amenity impacts was put forward by the Council. Many of these had been identified by the Objectors as impacts experienced as a result of Mr Simmons' unauthorised use since late 1998. Others were described as impacts "normally associated" with such a use.

40. The Applicant relied on his own evidence, and that of Mr Share, to counter the Council's arguments. Mr Share is a Police Sergeant with extensive professional experience with animals. He has also engaged in the hobby of pigeon flying for many years, including numerous executive roles in the sport. He was an impressive witness who was able to provide detailed information on the keeping of pigeons and the overall pigeon racing scene and we accept his evidence before us.

41. We accept the Applicant's submission that the use will not result in an undesirable level of noise. As noted by Mr Share, pigeons do not cause noise when roaming across the sky. The birds sleep at night and their "flutter" in the lofts during the day would be hardly noticeable. Mr Share conceded that cocks may "coo softly" during the breeding season. However, his evidence was that the cocks and hens are separated near the racing season. The aim is for the birds to quieten and reserve their energy for racing.

42. Mr Simmons and Mr Share did not directly address the issue of the noise associated with birds returning to the lofts, from exercise flights or races. We understand that exercise flights en masse are conducted twice a day. Weekend races involve pigeons returning individually. Given the frequency of these activities we do not consider that any associated noise would be unreasonable.

43. The Council submitted that the use could lead to the attraction of vermin and flies, due to wet manure and the presence of spilled seed below the lofts. On this matter we accept the evidence of Mr Share and Mr Simmons. Pigeon manure is dry and does not attract vermin and flies. Racing pigeon behaviour is controlled by diet and care is taken to measure out small amounts of feed. The small meals are eaten quickly and fully digested. Pigeons do not feed by de-husking seed. As the feed is expensive, owners cannot afford to allow it to become contaminated. Mr Simmons advised that feed is kept in sealed containers.

44. The Council submitted that details of an adequate procedure for waste removal had not been provided with the application. On this matter Mr Simmons advised that it is his practice to thoroughly clean the racing loft at least once a day. Every time he enters the loft he scrapes any waste into the trays below. The stock loft is cleaned twice a week as he does not want to disturb the breeding birds too frequently. According to Mr Simmons waste is placed in empty feed bags, put into a garbage bin and taken off site. A permit condition requiring waste removal to the satisfaction of the Responsible Authority would be appropriate.

45. Given the evidence about the nature of pigeon manure we do not accept the Council's submission that the manure will give off odour when drying. We also accept that the cleaning regime carried out by Mr Simmons will not result in any offensive odours.

46. The Council submitted that the use could result in the potential for disease transmission and allergic reactions. On this matter Mr Share advised that properly cared for pigeons do not present a health risk to any person. Mr Simmons gave evidence concerning the veterinary care he ensures. We accept that as an experienced pigeon racer Mr Simmons is likely to keep the lofts and the pigeons in a clean and healthy state. Mr Simmons has a vested interest in the health of his pigeons.

47. Mr Sucic referred to the claim by Objectors that there were bird droppings on clotheslines, cars, pergolas and footpaths in the neighbourhood. During inspections of the subject site Council officers had observed bird droppings near the lofts - on fence lines and roofs.

48. In the light of the evidence of Mr Share we do not consider that these droppings are likely to be caused by the pigeons. The white droppings on local fences are more likely to be from wild birds (Indian Minors or Starlings). We accept Mr Share's evidence that it is unusual for pigeons to excrete during flight. After exercise flights the pigeons are trained to immediately return to the loft for feeding. This response is required for successful racing. Furthermore, sections of trellis have been erected on the ridge of the loft roof as a disincentive for the birds to land on the roof.

49. Although Mr Simmons' use of the subject site has generated complaints during the past we note that there was only one objector (Mr Hammett) who had not withdrawn his objection or offered conditional support. It is significant that Mr Hammett has chosen not to be a party to these proceedings. We also note that his property (No. 5 Scullin Court) is removed from the lofts by a distance of approximately 30m.

50. Lastly, we note that the number of pigeons proposed to be kept is minimal for a viable racing operation. On this matter Mr Share gave evidence that the "average chap in the backyard" has 140-150 pigeons and 80 racers is a minimum number to be competitive. We acknowledge that the racing of pigeons involves considerable losses over the season (due to predators, the weather and obstacles). Inevitable losses will mean that a diminishing number of pigeons will be accommodated on the site over the year.

51. We consider that with stringent permit conditions the amenity of the neighbourhood will not be detrimentally affected by the proposed use and development. Accordingly, we will make the appropriate order in relation to Application for Review No. 1999/106207.

52. Many of the permit conditions we impose are based on suggested conditions tendered at the hearing by Mr Sucic. Others are based on conditions suggested by two objectors, Mr and Mrs Scibilia who indicated to the Council by letter dated 17 December 1999 that they did not object to the keeping of 140 beds subject to appropriate conditions. Although it is unusual for a planning permit to be personal, in this instance we consider that it is important that Mr Simmons be specified as the operator. He is an experienced and committed pigeon racer and the objectors have particular expectations about how he will conduct the use.

53. We have been advised by the Council that Mr Simmons has complied with the enforcement order which has been in place. The enforcement order is no longer appropriate and it should be cancelled.

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