VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P1405/2022
Permit Application no.PLN/2021/34 	
CATCHWORDS	
Section 80 of the Planning and Environment Act 1987 (Vic): Macedon Ranges Planning Scheme; General Residential Zone; Design and Development Overlay; conditions review; domestic animal husbandry; recreational dog breeders; limits on keeping numbers of animals; amenity and land use compatibility.	

ApplicantS	Paul Wallworth & Bryan Mangelsdorf	

Responsible Authority	Macedon Ranges Shire Council	

SUBJECT LAND	9 Newnham Drive
ROMSEY VIC 3434	

HEARING TYPE	Hearing	

DATE OF HEARING	12 May 2023	

DATE OF ORDER	23 May 2023	

CITATION	Wallworth v Macedon Ranges SC [2023] VCAT 574	

Order
1	The decision of the responsible authority is varied.  
2	The Tribunal directs that planning permit PLN/2021/34 must contain the conditions set out in planning permit PLN/2021/34 issued by the responsible authority on 6 September 2022 with the following modifications:
(a)	Conditions 4(e), 4(f) and 4(h) are amended to read:
e)	Hours and management of feeding times to occur between 7:00am and 6.00pm during non-daylight saving time periods (April to September) and between 7.00am and 7.30pm during daylight saving time periods (October to March) in accordance with Conditions 6 part (e).
f)	Anticipated exercise regime to occur between 9.00am and 5.00pm during non-daylight saving time periods (April to September) and between 9.00am and 9.00pm during daylight saving time periods (October to March) in accordance with Condition 6 part (e).
h)	Continuous attendance of the permit holder or a nominated responsible person is required for the night time period defined under the Noise limit and assessment protocol for the control of noise from commercial, industrial and trade premises and entertainment venues, (Publication 1826.4, Environment Protection Authority, May 2021).
(b)	Condition 6(e) is amended to read:
e)		Unless with the prior written consent of the Responsible Authority, feeding of the dogs must only occur within the hours of 7:00am to 6:00pm during non-daylight saving time periods (April to September) and between 7.00am and 7.30pm during daylight saving time periods (October to March) and exercise or training of the dogs must only occur between the hours of 9.00am and 5.00pm during non-daylight saving time periods (April to September) and between 9.00am and 9.00pm during daylight saving time periods (October to March), unless in unforeseen circumstances whereby the dogs would otherwise go unfed or exercised, to the satisfaction of the Responsible Authority. The permit holder or nominated responsible person must document any such unforeseen circumstances in writing, with times, dates and reasons;
(c)	Condition 10 is amended to read:
10		All solid waste associated with the keeping of the dogs must be collected, stored, treated and disposed of to the satisfaction of the Responsible Authority.  This includes the collection of waste from the kennels on a daily basis and disposal via Council’s Food Organics Garden Organics (FOGO) collection system or acceptable alternative means to the satisfaction of the Responsible Authority. The dog pens and surrounding area must be kept in a clean and hygienic state, to the satisfaction of the Responsible Authority.
(d)	Condition 11 is amended to read:
11		At all times the use must comply with Noise limit and assessment protocol for the control of noise from commercial, industrial and trade premises and entertainment venues, (Publication 1826.4, Environment Protection Authority, May 2021) as amended from time to time, to the satisfaction of the Responsible Authority
(e)	A new condition is included as follows:
19	Except with the written consent of the Responsible Authority, this permit allows the use of the land only while the land is in the ownership of Paul Gordon Wallworth and Bryan Charles Mangelsdorf and/or the use is operated and managed personally by Paul Gordon Wallworth or Bryan Charles Mangelsdorf, otherwise the permit will expire.
(f)	Conditions in the planning permit are renumbered accordingly.

3	The responsible authority is directed to issue a modified planning permit in accordance with this order. 

Christopher Harty
Member			

Appearances
For Paul Wallworth and Bryan Mangelsdorf	Both in person	
For Macedon Ranges Shire Council	Mr Callum Bryant, town planner from SongBowden Planning Pty Ltd	

Information
Description of proposal	Domestic animal husbandry involving the keeping for recreational breeding of 5 dogs	
Nature of proceeding	Application under section 80 of the Planning and Environment Act 1987 (Vic) – to review the conditions contained in the permit	
Planning scheme	Macedon Ranges Planning Scheme	
Zone and overlays	General Residential Zone Schedule 1 – Macedon Ranges General Residential Area (GRZ1)
Design and Development Overlay Schedule 18 – Romsey Township Character – Precinct 3 – Established Area A (DDO18)
Development Contributions Plan Overlay Schedule 1 – Romsey Development Contributions Plan (DCPO1)	
Permit requirements	Clause 32.09-2 use of land for domestic animal husbandry with a condition must be no more than 5 animals
Clause 32.09-9 to construct a building or construct or carry out works for a section 2 permit required use
Clause 43.02-2 to construct a building or to construct or carry works 	
Land description	The subject land is located on the south side of Newnham Drive in Romsey.  It is irregular in shape with a frontage width of 30 metres and depths ranging from 122.02 metres (north) and 126.02 metres (south) with an overall area of 6,355 square metres.  The subject land is a large residential allotment currently containing a single storey dwelling situated to the front of the land with three fenced yards located behind the dwelling which are used as dog runs with an associated dog kennel.  The use is currently operating.
The surrounding area is residential.  A single storey dwelling abuts the land to the north-east which is also currently being used under existing use rights for domestic animal husbandry while four single storey dwellings occupy the adjoining land to the south-west.  Newer smaller lot residential development has occurred behind the subject land to south.  Despite being residential, the area around the subject land exhibits a semi-rural character with open frontages, informal road reserves with soft road verges and mixed vegetation.  	
Tribunal inspection	A site inspection was not necessary since the key issue in this proceeding relates to conditions with the merits of the land use having already been determined by Macedon Ranges Shire Council in granting Planning Permit No. PLN/2021/34.  The Tribunal was provided with photographs, site plans and other material provided by the parties by way of submission. 	

  Reasons
What is this proceeding about?
1	This is an application made to the Tribunal by Paul Wallworth and Bryan Mangelsdorf (applicants) to review conditions imposed by Macedon Ranges Shire Council (Council) on permit PLN/2021/34 issued on 6 September 2022 for the use and development of land at 9 Newnham Drive, Romsey (site) for domestic animal husbandry (the keeping and breeding of 5 dogs).
2	The conditions in dispute are summarised as:
•	Condition 1(a) requiring an amended acoustic report including the dwelling at 7 Newnham Drive as part of the assessment, and accordingly recommending noise mitigation measures.
•	Condition 1(b) requiring screen planting along the western boundary of the site to a minimum of 3 metres height with screen planting species and plant densities to the satisfaction of Council.
•	Condition 1(c) requiring a Domestic Animal Husbandry Management Plan in accordance with Condition 4 of the permit.
•	Condition 1(d) requiring amended plans to reflect any required changes resulting from Conditions 1(a) and 1(b).
•	Condition 3 requiring the landscaping works to be completed within six months of the date of the permit, unless otherwise agreed with Council and thereafter maintained to the satisfaction of Council.
•	Condition 4 requiring within three months from the date of the permit, the preparation of a Domestic Animal Husbandry Management Plan which is to be approved by Council and requiring matters including hours of feeding and exercising and management arrangements of the dogs.
•	Condition 5 limiting the number of dogs, other than puppy litters, to be kept on the land.
•	Condition 6 specifying management requirements for the operation of the land use to the satisfaction of Council. 
•	Condition 10 specifying waste management arrangements.
•	Condition 11 requiring compliance with the EPA Noise Limit and Assessment Protocol for the Control of Noise from Commercial, Industrial and Trade Premises and Entertainment Venues Publication 1826.2, March 2021 (Noise Protocol).
Background and physical and policy contexts
3	I have been provided with a detailed description of the site and its environs, the immediate neighbourhood, and the broader area around the site.  I have also been provided with a detailed description of the proposal and the planning scheme provisions and applicable policies.  It is not necessary for me to repeat that material other than to record that:
•	The permit application made by the applicants to Council seeks retrospective approval of the use and development of the site for the keeping, breeding, and training of dogs.  
•	The applicants have been showing and breeding basset hounds for over 30 years.  They described how they moved to the site in 2010 because of the larger sized residential lot, built a dwelling and in 2016 had taken care of the dogs from a family member.
•	The applicants had been obtaining local law permits for keeping 6 dogs on the site until commencing the permit application process in 2020.
•	Council issued the permit on 6 September 2022 containing 19 conditions.  The applicants consider some of these conditions are excessive and overly onerous and create uncertainty and are unreasonable given what they do with the dogs and how they operate with what they say is defined under section 3 of the Domestic Animal Act 1994 (Vic) as ‘recreational breeders’ and not conducting a commercial or business breeding operation from the site.
•	The site is located on the south side of Newnham Drive in Romsey.  It is large for a residential area and irregular in shape with a frontage width of 30 metres and depths ranging from 122.02 metres (north) and 126.02 metres (south) with an overall area of 6,355 square metres.  
•	The site currently contains a single storey dwelling situated to the front of the allotment and orientated to Newnham Drive.  The dwelling has an attached garage and driveway access located centrally within the frontage.  The north-east side of the dwelling and part of the rear setback (near the north-east boundary) contains three fenced yards utilised as dog runs.  There is an existing kennel in the middle run situated on the north-east boundary.  The site contains established screen planting along the north-east boundary.
•	The surrounding area is residential.  A single storey dwelling abuts the land to the north-east (7 Newnham Drive) which is also currently being used for domestic animal husbandry under existing use rights while four dwellings occupy the adjoining land to the south-west.  More recent residential development comprising smaller lot sizes has occurred behind the site to south.  
•	Despite being residential, the area around the site exhibits a semi-rural character with open frontages, informal road reserves with soft road verges and mixed vegetation.  
•	The use of the site which involves the keeping, breeding, and training/exercising of the basset hounds, under the Macedon Ranges Planning Scheme (planning scheme), comes under domestic animal husbandry.  The applicants say their breeding is a hobby rather than a commercial venture and that the dogs are their pets who share their hobby.  They say ‘our dogs are out pets’.   
•	The site is in the General Residential Zone Schedule 1 – Macedon Ranges Residential Area (GRZ1).  A permit requirement is triggered under the GRZ1 for both the use and development of the site for domestic animal husbandry.  Under Clause 71.03-2 of the planning scheme, a use in section 2 requiring a permit must also meet any condition opposite that use.  Domestic animal husbandry in section 2 of the GRZ1 includes the condition ‘must be no more 5 animals’.  Under Clause 71.03-2 if the condition is not met, the use is prohibited. 
•	The site is affected by the Design and Development Overlay Schedule 18 – Romsey Township Character – Precinct 3 – Established Area A (DDO18).  A permit requirement is triggered for buildings and works.
•	The site is also affected by the Development Contributions Plan Overlay Schedule 1 – Romsey Development Contributions Plan (DCPO1), however no permit requirement is triggered under this overlay for the proposal.
Tribunal’s findings
4	I have had the benefit of submissions from Mr Bryant for Council, Mr Wallworth and Mr Mangelsdorf as the applicants and have given consideration to them.
5	The matter in this proceeding is one where the planning merits of the proposal have already been determined by Council granting a permit.  Council has included conditions on the permit.  Some of these conditions are now disputed by the applicants.  It is not my role to review the merits or otherwise of the proposal and the granting of the permit.  It is my role to review the application to review the conditions that are in dispute.
6	With this matter, I must decide whether the contested conditions will produce an acceptable outcome having regard to the relevant policies and provisions in the planning scheme.  Net community benefit is central in reaching a conclusion.  Clause 71.02-3 - 'Integrated Decision Making' of the planning scheme requires the decision-maker to integrate the range of policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit and sustainable development for the benefit of present and future generations.
7	I must decide whether the disputed conditions should be deleted, retained or amended.  
8	Having considered the submissions presented with regards to the applicable policies and provisions of the planning scheme, I find I am generally in agreeance with Council.  
9	The conditions are to be retained with amendment to a few about feeding and exercising times and waste management and an additional condition linking the use of the land to the owners of the land.  The conditions support the balance between allowing the recreational breeding activity of the applicants against the ongoing protection of amenity of a residential area in Romsey.  My reasons follow.
Basis of Decision
10	Council accepts that the site can accommodate a domestic animal husbandry use.  Domestic animal husbandry is defined under Clause 73.03 – ‘Land Use Terms’ of the planning scheme as:
Land used to keep, breed, board or train domestic animals.
11	Council says the conditions that have been included in the permit are necessary to ensure that the use of the site for domestic animal husbandry is responsive to the surrounding sensitive residential area and should remain.
12	It says the conditions seek to ensure the domestic animal husbandry use is conducted in a manner that is consistent with the quiet residential amenity valued in the area.  Council says the conditions are framed with ensuring that any changes in the future either with land ownership or with the nature of the dog breeding will not result in detrimental impacts on residential amenity.  I note the conditions should be capable of responding to any changes in the surrounding area whether new residents move in or more intensive residential development occurs.
13	The applicants say the conditions are onerous and not applicable to a recreational breeding activity that they conduct on the site.  They say their breeding is intermittent with the primary purpose of bringing a puppy into their show team and to sustain bloodlines.  
14	The applicants are registered breeders or members of Dogs Victoria which is an organisation approved under the Domestic Animals Act 1994 (Vic) and are defined as recreational breeders because they have no more than 10 fertile female dogs.  As such, they are required to comply with the code of practice of Dogs Victoria.  The applicants consider this establishes the appropriate requirements that they need to follow apart from matters that the code of practice does not address which are noise and waste management.
15	They say the fact that there have been no complaints concerning their operation since having the dogs on the site (since 2016) and the absence of any objections to the permit application demonstrates that there is no detrimental impacts on residential amenity.  I note there was one submission in support of the proposal.
16	The applicants also submit that they have six dogs one of which is an eight-year-old de-sexed female dog that is kept in the dwelling as a household pet, which they would like to keep, in addition to the 5 breeding dogs.  They say the dwelling and house dog do not form part of the domestic animal husbandry use and accordingly, should not be counted in the limit of 5 animals associated with the use.      
17	Having considered the submissions, I find I am generally in agreeance with Council.
18	The site is in a residential zone.  It is a zoning that reflects a certain level of expectation that living in such areas will have a high level of amenity and the expectation that such amenity will be maintained and protected.  A use and development of land in such an area under the GRZ1 that has potential to cause an upset to that amenity does require a level of management to ensure that such impacts are appropriately managed and addressed.
19	Accordingly, I find that the contested conditions should remain.  However, I also find that they could be improved with some minor variations.
20	Domestic animal husbandry is a discretionary use under the GRZ1 but limited to no more than 5 animals that includes dogs of any description or condition.  This means it does not matter whether the dogs are small or large or desexed or not.  The condition limiting the number of animals tied to the land use merely refers to numbers of animals.  I consider this reflects the drafting of this provision of the planning scheme to reflect the effects that larger numbers of animals including dogs can have on residential amenity, which in the case of dogs is from noise and wastes.
21	The definition of domestic animal husbandry includes reference to land used to keep, breed or train domestic animals.  These activities are separate from one another and relate to land used for these types of activities.  The land is the planning unit, which is described as 9 Newnham Drive, Romsey.  There is no distinction between the dwelling, outdoor areas, dog runs or the kennel on the land that is used in the land use definition.  Under the GRZ1, the planning scheme simply establishes a limit on the number of animals. 
22	I also note that what may or may not be happening on other properties is not before me.  If there are other properties in the area that operate similar types of uses with dog keeping or breeding, these are matters for Council to address if required.  They have no relevance with respect to fairness or precedence.  I am required to consider what effects the use and development on the site may have on other properties.  It is comforting that it appears the use currently does not detrimentally impact on residential amenity.  However, as this is a residential area and not a farming or rural area, closer living for human habitation requires a higher threshold to be considered in terms of residential amenity and how the use and development approved by Council will operate to mitigate any detrimental effects. 
23	Decision guidelines under the GRZ1 for non-residential use and development include reference to compatibility with residential use and the scale and intensity of the use and development and appearance of buildings and works.  These matters are relevant to considering the appropriateness of the contested conditions.  Similarly, Clause 65.01 of the planning scheme contains general decision guidelines that require consideration of orderly planning and the effects on the environment, human health, and amenity of the area.  These provisions highlight the requirement to consider the effects of the use and development and that the conditions imposed on the permit arising from Council’s decision go to these effects and how they are to be managed.
24	Policy under the planning scheme at Clause 13.07-1S relating to ‘Land use compatibility’ is relevant because it aims to protect community amenity and human health while facilitating uses with potential off-site impacts.  Clause 13.05-1S relating ‘Noise management’ is also relevant as it aims to assist the management of noise effects on sensitive land uses which includes dwellings.
25	I also note that both parties referred me to previous Tribunal decisions.  Although helpful, I acknowledge that they all have different contexts and none of them were in a residential area or zone.  They were either in the Rural Living Zone, Green Wedge Zone or the Farming Zone.  In terms of animal numbers, these rural based zones are less restrictive and bear little relationship to the amenity issues associated with domestic animal husbandry and the keeping and breeding of dogs in a residential context.
26	I now address the contested conditions individually.     
Condition 1
27	Condition 1 states:
Within three (3) months from the date of this permit, fully dimensioned and drawn to scale amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority.  When approved, the plans will be endorsed and will then form part of this permit.  The plans must be generally in accordance with the plans submitted with the application but modified to show:
a)	An amended acoustic report including the dwelling at 7 Newnham Drive as part of the assessment, and accordingly recommending noise mitigation measures.
b)	Screen planting along the western boundary to a minimum of 3m height with proper screen planting species and plant densities to the satisfaction of the Responsible Authority. 
c)	Domestic Animal Husbandry Management Plan in accordance with Condition 4 of this permit.
d)	Amended plans reflecting any required changes resulting from Condition 1 (a) and (b) as detailed above. 
All to the satisfaction of the Responsible Authority.
28	Regarding Condition 1(a), Council says it is necessary because the use of the site for domestic animal husbandry will produce amenity impacts beyond that expected from a standard residential property.  It says the acoustic report prepared in support of the permit application referred to the impacts of the indoor dog kennel and outdoor dog play areas in respect to the neighbouring properties, except for the nearest neighbour at 7 Newnham Drive to the north-east of the site.
29	The acoustic report’s assumption that 7 Newnham Drive should not be considered as a noise sensitive receiver (NSR) due to it also operating a domestic animal husbandry use on the site is considered by Council to be misguided.  This property may in future be purchased or tenanted for the sole purpose of human occupancy.  Council says it is relevant to include consideration of this property because Clause 11.03-6S – ‘Regional and local places’ of the planning scheme seeks to consider the distinctive characteristics and needs of regional and local places in planning for future land use and development.  Hence, Council has included the condition requiring an amended acoustic report that includes consideration of the effects of the proposal on 7 Newnham Drive.
30	The applicants disagree with Council saying the condition requiring an amended acoustic report should have been sought before a decision was made on the permit application.  It creates uncertainty for the applicants because they do not know what further recommended actions or requirements an amended acoustic report may make. 
31	Whilst I agree with the applicants, that this is a matter that Council should have taken up with the applicants before deciding on the permit application, it is now evident that the adjoining property at 7 Newnham Drive should be included in noise impacts from the use and make recommendations accordingly to ensure amenity is reasonably protected.
32	I find Condition 1(a) is reasonable because an amended acoustic report is necessary to ensure that amenity for the occupants of 7 Newnham Drive is considered and protected.  Despite the authors of the acoustic report considering that a noise impact assessment was not warranted for the dwelling at 7 Newnham Drive because it also operates domestic animal husbandry with 8 dogs under existing use rights, I consider it is important to assess the effects the use may have to ensure that noise effects and any undue impacts can be identified, and measures put in place or available to be applied to mitigate any impacts on amenity.
33	I note that the applicants say there have been no complaints since they commenced keeping the dogs of the site.  This is comforting.  However, change can occur.  
34	One of the purposes of the GRZ1 is to encourage a diversity of housing types and housing growth, particularly in location offering good access to services and transport.  The site, and surrounding properties, consist of large areas and as Romsey grows, as evident by the newer residential development to the south, it would not be unexpected that in future increased residential development or infill re-development may occur.  
35	Given these considerations, I consider Condition 1(a) supports the protection of the amenity of this residential area now and in the future. 
36	Regarding the remaining parts of Condition 1, I consider they are relevant in reflecting up to date plans and landscaping treatments to ensure amenity is appropriately managed.  I note that the applicants did not pursue concerns regarding Condition 1(b) and that they appeared prepared to undertake additional landscaping works.
Condition 3
37	Condition 3 states:
Unless with the prior written consent of the Responsible Authority, within six (6) months of the date of this permit, the landscaping works shown on the endorsed plans must be carried out, completed and thereafter maintained to the satisfaction of the Responsible Authority.
38	Condition 3 is a standard form of condition for landscaping to be undertaken within a time frame and has appropriate flexibility built into it that allows the applicants to seek additional time from Council if required.        
Conditions 4
39	Condition 4 States:
Within three (3) months from the date of this permit, a Domestic Animal Husbandry Management Plan must be prepared, submitted and approved by the Responsible Authority. When approved, the plan will be endorsed and will then form part of the permit. The plan must detail:
a)	Waste management of both solid and liquid waste produced by the dogs and during the wash down and cleaning of kennels and other dog areas in compliance with the nuisance provisions of the Public Health and Wellbeing Act; 
b)	Proposed drainage measures such as swale drains, associated with the washing and cleaning of the facilities; 
c)	A regular cleaning schedule in accordance with Condition 6 part (g).
d)	Management of odour and dust on the site and measures to be implemented; 
e)	Hours and management of feeding times to occur between 7:00am and 6:00pm in accordance with Conditions 6 part (e).
f)	Anticipated exercise regime to occur between 9:00am and 5:00pm in accordance with Condition 6 part (e).
g)	Identification of a nominated responsible person who will reside on the subject land and will be reasonably available 24 hours per day when dogs are present on the subject land;
h)	Continuous attendance of the permit holder or a nominated responsible person is required for the Noise from Commercial, Industrial and Trade Premises and Entertainment Venues (Publication 1826.2, Environment Protection Authority, March 2021) defined night period;
i)	Management measures regarding biosecurity, disease and animal welfare in accordance with relevant legislation and best practice standards including details of veterinary practitioner;
j)	Measures of dealing with particularly noisy dogs as necessary. This can include separating the noisy dogs in a fully enclosed and acoustically baffled room or kennel. 
k)	Material and food storage areas and management.
l)	Arrangement for martial deliveries and waste pickup.
m)	Animal health arrangement and book keeping methods.
n)	An Emergency Management Plan which details the proposed response to any emergency, including but not limited to flooding or fire:
I.	Details of short term emergency accommodation of dogs on-site due to temporary, limited loss of facilities;
II.	Plans for the longer term evacuation of the site including dog destinations, off-site evacuation facilities, means of transportation and dog welfare concerns;
III.	Measures to address complaints including: 
•	Names and telephone numbers for out of hours contact;
•	A complaint resolution mechanism so that any concerns raised by the local community can be appropriately addressed.
All details of the Management Plan must be to the satisfaction of the Responsible Authority and when approved the Management Plan will be endorsed to form part of the permit. The recommendations of the plan are to be implemented to the satisfaction of the Responsible Authority. 
40	Condition 4 relates to a Domestic Animal Husbandry Management Plan.  The applicants contest Conditions 4(e), 4(f), 4(g), 4(h) and 4(j).  
41	Council says these conditions have been applied to ensure that the use operates in a manner that is complementary to the residential zone.  They say relevant considerations need to be made to ensure that the keeping and breeding of dogs on the site is responsive to the sensitive nature of the area.
42	Council considers that as the site is in proximity to 9 other dwellings, the condition is required to respond to land compatibility and avoid an outcome where there would be no requirements with respect to managing amenity impacts relating to waste, vermin and noise.
43	The applicants say the need for a Domestic Animal Husbandry Management Plan is not necessary.  They consider their membership with Dogs Victoria, which is an applicable organisation approved by the Minister for Agriculture under the Domestic Animals Act 1994 (Vic) and the obligation to adhere to Dogs Victoria’s code of practice will effectively address concerns regarding management of the dogs.  
44	The applicants circulated a Model Health Management Plan, which is a template from Dogs Victoria.  They say this presents the form of management plan that would suffice in managing their dogs.
45	Council’s response was that the Model Health Management Plan was appropriate in terms of animal welfare but would be considered a subset of a broader Domestic Animal Husbandry Management Plan sought under Condition 4, which addresses issues not covered under the Dogs Victoria code of practice.
46	I agree with Council.  The Domestic Animal Husbandry Management Plan addresses matters beyond management of the welfare of the dogs.  It addresses matters that are generally identified as warranting some form of detail and understanding as to how the dogs will be managed and looked after as part of the operation of the land use.  
47	Apart from providing some flexibility in Conditions 4(e) and 4(f) with feeding time and exercising times in the evening during daylight saving times by extending the time for feeding from 6.00pm to 7.30pm to encourage quieter dogs at night and for exercise from 5.00pm to 9.00pm during daylight saving time periods to account for additional daylight, I consider the condition and its contested parts acceptable.  
48	Condition 4(g) refers to someone being reasonably available to ensure the dogs are managed.  This is not overbearing.  The applicants are required under Condition 4(h) to be in attendance during night time periods, which is reasonable and should not interfere with the applicants work situation.  For completeness, I have amended Condition 4(h) to refer in a more realistic manner to the current Noise Protocol. 
49	Condition 4(j) is reasonable and ensures any noisy dogs are appropriately managed.
Condition 5
50	Condition 5 states:
Not more than a total of five (5) adult dogs (including adults and puppies over twelve (12) weeks of age) may be kept on the land at any one time with the following additional details:
a)	Not more than two (2) litters (up to twelve (12) weeks of age); and
b)	Pet/companion dogs (even if de-sexed) are included in the total number of dogs permitted.
c)	All dogs three (3) months of age or older must be registered with Macedon Ranges Shire Council.
51	I have addressed the issue of the number of dogs earlier in my reasons.  Condition 5 relates to the numbers of dogs and cannot be increased above 5 otherwise a permit cannot be granted because the use becomes prohibited under the GRZ1.
Condition 6
52	Condition 6 states:
At all times during the operation of the Dog husbandry use hereby approved, the following requirements, to the satisfaction of the Responsible Authority, must be met: 
a)	Access to dogs must be restricted solely to the permit holder, a veterinary surgeon, a member of the permit holder's family, a person over the age of 18 years entrusted with the care or effective control of the dogs ("a nominated responsible person", a current list of whom must be provided by the permit holder to the Responsible Authority, if the latter so requests), a person (which may be a member of the public) accompanied by the permit holder or a nominated responsible person, a person acting in an emergency, or a Council officer or other person on official business associated with the dogs;
b)	The dogs must not be allowed within the subject land outside the enclosures shown on the endorsed plans unless on a leash or under the effective control of the permit holder or a nominated responsible person;
c)	If any dogs escape, the permit holder or nominated responsible person must ensure that they are brought back to the subject land as soon as possible once the escape is known; 
d)	The permit holder or nominated responsible person must ensure that the dogs do not leave the subject land unless on a leash and/or in a vehicle from which they are unable to escape; 
e)	Unless with the prior written consent of the Responsible Authority, feeding of the dogs must only occur within the day time hours of 7:00 am to 6:00 pm and exercise or training of the dogs must only occur between the hours of 9.00 am and 5.00 pm, unless in unforeseen circumstances whereby the dogs would otherwise go unfed or exercised, to the satisfaction of the Responsible Authority. The permit holder or nominated responsible person must document any such unforeseen circumstances in writing, with times, dates and reasons; 
f)	The dog husbandry use with associated buildings and works herby approved, must be maintained so that dogs are enclosed at all times and so that the use continues to visually screen stimuli such as other dogs, animals, traffic or passers-by;  
g)	All pens, cages and modules used to house dogs must be cleaned out at least once per day (or more often as required) by hosing or other appropriate means. Dog housing areas must not be allowed to remain wet if the dog is returned to the area. All faeces, used bedding, used litter and uneaten food must be removed prior to cleaning. Used litter and uneaten food must be placed in a waste disposal device. Waste disposal must be in accordance with the requirements of the appropriate statutory authority;
h)	Exercise areas must be securely fenced and designed to prevent the escape of the dogs and the dogs must be monitored to ensure the dogs are not in danger of attack or other injury;
i)	Dog housing areas and holding facilities must not have gaps in the design that would allow a dog to protrude its head outside the housing area.
53	The applicants contest Conditions 6(a), 6(b), 6(e) and 6(f).
54	Council says the condition is required to manage limiting noise, waste, odour and vermin impacts and is the operational aspect to support the Domestic Animal Husbandry Management Plan.
55	Condition 6 has many attributes to that of the Dogs Victoria code of practice.  The permit needs to specify these requirements and I find this condition does that subject to amendment of Condition 6(e) relating to feeding time and exercising times in the evening during daylight saving times by extending the time for feeding from 6.00pm to 7.30pm to allow more quiet dogs at night and for exercise from 5.00pm to 9.00pm during daylight saving time periods to account for additional daylight, I consider the condition and its contested parts acceptable.   
Condition 10
56	Condition 10 states:
All solid waste associated with the keeping of the dogs must be collected, stored, treated and disposed of to the satisfaction of the Responsible Authority.  This includes the collection of waste from the kennels on a daily basis and disposal via an industrial Cleanaway bin (or similar) at least on a fortnightly basis. The dog pens and surrounding area must be kept in a clean and hygienic state, to the satisfaction of the Responsible Authority.
57	The applicants consider reference to an industrial Cleanaway bin excessive for a recreational breeding operation with a limit of 5 dogs.  I agree and have amended this condition to refer to Council’s Food Organics Garden Organics (FOGO) collection system or acceptable alternative. 
Condition 11
58	Condition 11 states:
At all times the use must comply with Noise Limit and Assessment Protocol for the Control of Noise from Commercial, Industrial and Trade Premises and Entertainment Venues (Publication 1826.2, Environment Protection Authority, March 2021) as amended from time to time, to the satisfaction of the Responsible Authority.
59	Condition 11 is a standard condition relating to compliance with the Noise Protocol, which I have amended to update with the current version.
Other conditions
60	The applicants emphasised the desire to include a condition linking their membership with Dogs Victoria and to their code of practice.  I find this is not necessary as Conditions 16 and 18 collectively pick up similar requirements.
61	I note the applicants were supportive of a condition restricting the use to the applicants, meaning that the permit will expire if the land ceases to be owned or the use ceases to be operated by the applicants.  Although such a condition is unusual, I am prepared to include an additional condition requiring this outcome and consider it serves as a further reinforcement of the need to take a cautious approach with domestic animal husbandry uses in residential settings. 
Conclusion
62	I accept the reference to Dogs Victoria and the code of practice as applicable for the applicants as recreational breeders.  However, compliance with the planning scheme is also equally required.  The conditions on the permit seek to achieve compliance and ensure that any impacts from keeping 5 dogs on the site are appropriately managed.  I find this is an acceptable outcome.
63	For the reasons given above, the decision of the responsible authority is varied.  A permit with amended conditions is granted.

Christopher Harty
Member