VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P438/2024
Permit Application no.PLA0186/23 	
CATCHWORDS	
Application under section 82 of the Planning and Environment Act 1987 (Vic) to review a Notice of Decision to Grant a Permit; Baw Baw Planning Scheme; Rural Activity Zone; domestic animal boarding; rural amenity; noise; waterway impacts; waste management and traffic.	

Applicant	Rohan Nancarrow, Corrine Nancarrow & Others	

Responsible Authority	Baw Baw Shire Council	
Respondent	Sally Darcy & Warren Darcy	

SUBJECT LAND	31 Mill Road
CROSSOVER VIC 3821	

HEARING TYPE	Hearing 	

DATE OF HEARING	28 January 2025	

DATE OF ORDER	12 February 2025	

CITATION	Nancarrow v Baw Baw SC [2025] VCAT 120	
Order
Amended permissions
1	Pursuant to clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), the permit application permissions are amended as follows:
•	Clause 35.08-1	Use the land for domestic animal boarding.
•	Clause 35.08-4	Construct or carry out a building or works associated with a section 2 use.
•	Construct or carry out a building within 100 metres of a waterway.
Permit granted
2	In application P438/2024 the decision of the responsible authority is varied. 
3	In planning permit application PLA0186/23 a permit is granted and directed to be issued for the land at 31 Mill Road Crossover VIC 3821 in accordance with the endorsed plans and the conditions set out in Appendix A.  The permit allows:

Planning scheme clause	Matter for which the permit has been granted	

Clause 35.08-1	Use the land for domestic animal boarding	
Clause 35.08-4	Construct or carry out a building or works associated with a section 2 use
Construct or carry out a building within 100 metres of a waterway	

Christopher Harty
Member			

Appearances
For Rohan and Corinne Nancarrow, Joanne Harris, Darren McDonnell, Paul and Draga Orwin	Mr Philip Walton, Town Planner from XWB Consulting	
For Baw Baw Shire Council	Ms India Brown, Town Planner	
For Sally and Warren Darcy	Mr Trent Blackmore, Town Planner from Spiire Australia Pty Ltd	

Information
Description of proposal	The use and development for domestic animal boarding for a maximum of 30 dogs. 	
Nature of proceeding	Application under section 82 of the Planning and Environment Act 1987 (Vic) – to review the decision to grant a permit.	
Planning scheme	Baw Baw Planning Scheme	
Zone and overlays	Rural Activity Zone (‘RAZ’)
Bushfire Management Overlay (‘BMO’)
Development Contributions Plan Overlay Schedule 1 – ‘Baw Baw Shire Development Contributions Plan’ (‘DCPO1’)	
Permit requirements	Clause 35.08-1 to use land for domestic animal boarding
Clause 35.08-4 to construct or carry out a building or works associated with a section 2 use and to construct or carry out a building within 100 metres of a waterway 	
Relevant scheme policies and provisions	Clauses 02, 11, 12, 13, 14, 35.08, 52.06, 65 and 71.02    	
Land description	The subject land is located on the western side of Mill Road in Crossover.  It is approximately 4.583 hectares in area and is an irregular shaped lot.  The land has steep slopes from 210 metres at the south-western corner to 180 metres at the north-eastern corner and is currently developed with a dwelling, cottage and outbuildings.
The surrounding area is rural in character with the land to the south vegetated in association with the Crossover Regional Park.  Land to the north, east and west is farming land with a scattering of dwellings. 	
Tribunal inspection	30 January 2025 unaccompanied   	

  Reasons
What is this proceeding about?
1	Baw Baw Shire Council ('Council') determined on 5 April 2024 to issue a Notice of Decision to Grant a Permit for domestic animal boarding on land at 31 Mill Road, Crossover (‘site’).  The proposal involves constructing four (4) kennel buildings comprising 20 indoor kennels and associated outdoor pens and four (4) communal exercise pens for boarding up to 30 dogs day and night.  The proposal will include an ancillary office, four (4) car parking spaces, a dog wash area and be serviced by a septic tank wastewater effluent treatment and disposal area (refer to Figures 1 and 2).  It is proposed to operate seven days a week with two (2) staff onsite at any one time accommodating a range of large, medium and small dogs.  Due to the slope of the land, it is proposed to construct three retaining walls.  

Figure 1: Site layout plan of the proposal.

Figure 2: North and west elevations of the proposed kennels.

2	The proposed development comprises:
•	A kennel area that includes the kennel buildings and individual and communal open dog runs set back 0.5 metres from a defined waterway to the north-west, 22 metres from an existing dwelling on the site to the south-east, 39 metres from the southern boundary, 114.6 metres from the western boundary, 83.7 metres from the northern boundary and 125 metres from the eastern boundary at its shortest distance.
•	The kennel area, including dog runs, has a total overall area of around 1,467 square metres.
•	The kennel building will be 3.195 metres in overall height with a classic cream and heritage red finish.
•	Access to the kennels is via an existing crossover and driveway from Mill Road with an area east of the existing dwelling set aside for car parking.
•	Due to the steepness of the land, an area of excavation of approximately 275 cubic metres, supported by retaining walls, is proposed along the southern elevation of the kennel buildings.  This results in the kennels being excavated into the hillslope.
•	No vegetation removal is proposed.
3	The review applicants, Rohan and Corinne Nancarrow, Joanne Harris and Darren McDonnell and Paula and Draga Orwin ('objectors') have lodged with the Tribunal a joint application to review Council's decision.  
4	Generally, they contend the proposal is inappropriate for the location given the quiet rural locality of the area as well as because of the slope of the land, the proximity to a waterway and forested public land associated with the Crossover Regional Park.  They consider the proposed use and development of the site for what is a proposal to board up to 30 dogs will result in detrimental impacts on their rural amenity by way of noise from dogs barking.  
5	They are also concerned about wastes entering nearby waterways, impacts on the serenity and biodiversity values of the adjacent Crossover Regional Park and have concerns over traffic safety associated with Mill Road which is a narrow gravel road.
6	In contrast, the permit applicants, Sally and Warren Darcy (‘respondents’) refute these concerns and consider the proposal is consistent with the purposes and decision guidelines of the Rural Activity Zone (‘RAZ’).  They say the proposal satisfies requirements regarding noise and wastewater management and has been sensitively designed and sited to minimise impacts on the area.  They consider the proposal achieves an acceptable outcome in accordance with the Baw Baw Planning Scheme (‘planning scheme’).
What are the key issues?
7	The issues raised within the context of the review relate to the proposal's impacts on the rural amenity of the area by way of noise emissions and on water quality and traffic safety.
8	Having heard the submissions and inspected the site and locality, the key issues arising from this proposal are:
•	Is the proposal and location supported by policy?
•	Are the environmental impacts acceptable?
•	Is traffic safety impaired?
9	I must decide whether the proposal 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.    
10	With the proposal I must decide whether a permit should be granted and, if so, what conditions should be applied.  Having considered all submissions presented with regards to the applicable policies and provisions of the planning scheme and from my inspection of the site and surrounds, I find the proposal achieves an acceptable outcome.  
11	I have decided to vary the decision of Council and order that a permit is granted subject to modified conditions.  The conditions are included in Appendix A.  My reasons follow.
Is the proposal and location supported by policy? 
12	The site is in a rural area with a diverse mix of moderate to steeply undulating open paddocks and forested and vegetated areas.  The site is located towards the end of a gravel road immediately north of the Crossover Regional Park.  The site is 4.583 hectares in area comprising open paddocks with scattered trees with a tributary of Red Hill Creek extending into the site with land falling steeply towards the valley of the tributary.  The tributary forms part of the headwaters of Red Hill Creek and hence, does not flow with water all year round.  At the time of my inspection, the waterway did not have flowing water, although I did notice water in the waterway further downstream on adjoining land to the east.
13	The geography of the site could be said to be relatively isolated and sandwiched in an area that lies between the Crossover Regional Park to the south and the Neerim State Forest to the north-east.
14	This area of rural land is settled with the following adjoining properties:
•	Bordering the site to the north and west is 41 Mill Road (located at the end of Mill Road) which has an area of around 8 hectares used for limited grazing purposes and containing a dwelling that is approximately 267 metres from the proposed boarding kennels.  I noticed this dwelling is excavated into the hillslope which separates it from the proposed boarding kennels. 
•	To the east is 32 Mill Road (the other side of Mill Road from the site), which has an area of around 28 hectares used for grazing purposes and containing two dwellings, one of which is the existing dwelling located around 295 metres east from the proposed kennels and the other, a dwelling under construction, around 490 metres to the north-east.
•	To the south-east is 100 Gunn Road (the other joint applicant objector to the south-east) with an area of around 7.34 hectares and used for grazing purposes with a dwelling around 493 metres south-east from the proposed kennels.  I note this dwelling is separated from the site by a vegetated hill that forms part of the Crossover Regional Park.
•	There are other dwellings located further to the east and to the west and south on the other side of the larger forested areas.   
15	The site and area that is in private ownership is located within the RAZ while the public forested land is in the Public Conservation and Resource Zone (‘PCRZ’).  
16	Apart from seeking to implement the Municipal Planning Strategy (‘MPS’) and the Planning Policy Framework (‘PPF’), the RAZ includes the following additional purposes:
To provide for the use of land for agriculture.
To provide for other uses and development, in appropriate locations, which are compatible with agriculture and the environmental and landscape characteristics of the area.
To ensure that use and development does not adversely affect surrounding land uses.
To provide for the use and development of land for the specific purposes identified in a schedule to this zone.
To protect and enhance natural resources and the biodiversity of the area.
To encourage use and development of land based on comprehensive and sustainable land management practices and infrastructure provision.  
17	In addition, the schedule to the RAZ also includes the purpose of supporting tourism uses and development which are compatible with agriculture and the environmental and landscape characteristics of the area.
18	Under the RAZ, a permit is required to use the site for domestic animal boarding.  Domestic animal boarding falls within the definition of domestic animal husbandry which in turn falls within the land use nesting of agriculture under the planning scheme.  A permit requirement is also triggered for development associated with the construction of buildings and works associated with the use and for buildings within 100 metres of a waterway.  The tributary that extends into the site runs in a roughly west to east direction including a couple of dams and low-lying area in the valley of the site.
19	Also relevant are decision guidelines under Clause 35.08-5 of the RAZ that address general, agricultural, environmental and design and siting issues.  The fundamental emphasis of these decision guidelines include land capability regarding disposal of effluent, impacts on agricultural production and soil quality, environmental impacts including on vegetation and fauna habitat values, built form impacts on landscape values and traffic management.   
20	The site is also affected by the Bushfire Management Overlay (‘BMO’) and the Development Contributions Plan Overlay (‘DCPO’).  Because the proposal does not involve accommodation, no planning permit requirements are triggered under the BMO.  Hence, bushfire issues are not before me.  Similarly, the DCPO does not trigger permit requirements and is not directly relevant to the nature of the proposal.
21	It appears the main feature of the RAZ is the flexibility that it provides for farming and other land uses to co-exist.  Farming is supported but the RAZ also provides the opportunity for other non-farming uses to be considered in appropriate locations.  These other uses include tourism, commercial and retail type activities and are subject to the proviso that they are compatible with surrounding land uses, especially agriculture.  
22	Council says the purposes of the RAZ are to support sustainable rural development by balancing agriculture with limited non-agricultural uses.  It appears relevant to note that the proposed boarding of dogs is considered by Council and the respondent as a form of agricultural activity.  
23	The strategic direction of the RAZ and policies of the planning scheme relevant to the proposal and location encourage land uses and development that do not have detrimental effects on agricultural activity, protect the environment and amenity and diversify the local economy.
24	Of interest, Clause 02.03-1 relating to ‘Settlement and Housing’ describes how Baw Baw Shire is a peri-urban municipality that offers attractive lifestyle choices in urban and rural settings.  However, it also recognises that in rural settlements such as Crossover, services are limited if at all, and due to environmental, agricultural and land slope conditions, opportunities for growth are restricted.
25	The above is perhaps reinforced by policy under Clause 02.03-3 relating to ‘Natural Resource Management’ which recognises the importance of agriculture in the Shire and includes a strategic direction to protect agricultural uses by minimising land use conflict between agricultural and sensitive uses.  
26	Council and the respondents acknowledge that land uses and developments, such as the proposal, need to be cognisant of their effects on the locality and to minimise land use conflicts.  They argue that boarding dogs is a land use that falls within the broader definitions of domestic animal husbandry and agriculture which, in the RAZ, finds itself as a land use, that is consistent with what could be expected in these types of rural areas.
27	Under Clause 02.03-5 relating to ‘Economic development’ the planning scheme also identifies a desire to facilitate diversification of the economy which Council and the respondents argue is what the boarding kennels do.
28	More specifically, regarding land use compatibility, Clause 13.07-1S seeks to protect community amenity, human health and safety while facilitating appropriate commercial, industrial, infrastructure or other uses with potential adverse off-site impacts.  Relevant strategies to support the objective include:
•	Ensuring that use or development of land is compatible with adjoining and nearby land uses.
•	Avoiding the location of incompatible uses in areas that may be impacted by adverse off-site impacts from commercial and other uses.
•	Avoiding or otherwise minimising adverse off-site impacts from commercial and other uses through land use separation, siting, building design and operational measures.
29	Clause 14.01-1S relating to ‘Protection of agricultural land’ seeks to protect the state’s agricultural base by preserving productive farmland.  
30	Specifically, in terms of domestic animal boarding, Clause 14.01-2S relating to ‘Sustainable Agricultural Land Use’ includes policy seeking to encourage sustainable agricultural land use and includes a strategy to ensure animal keeping is appropriately located and does not detrimentally impact the environment, the operation of surrounding land uses and the amenity of the surrounding area.
31	Council says the proposal has broad strategic support from the land use policy framework.  However, it does acknowledge that such support does not mean that its potential impacts are not to be considered.
32	I note that much of the objectors’ concerns relate to impacts on rural amenity and local biodiversity, rather than on agricultural uses.  I was advised by the parties that agricultural uses on the site and in the surrounding area are based on limited to moderate grazing activity.  Rural amenity appears to be based on the use of land in the area for rural lifestyle purposes.
33	I find that, generally, the proposal enjoys policy support for the use and development within the RAZ and in a rural area.  Any activity that provides for the keeping of animals in densely contained settings, like boarding kennels risks generating impacts from noise and other activity.  It is fair to say that these types of activities are often found in rural areas that have the greater opportunity to locate boarding kennels and the like because it is these areas that offer the greater distance against which to buffer the adverse impacts of boarding kennels and particularly the noise effects from dogs barking.
34	It would also be true to find that the kennels and dog runs have a relatively site specific and small take up of land leaving the remainder of the site available for other agricultural pursuits.  This does no harm to the ability to farm the balance of the site.
35	I also consider the proposal would not harm the ability to farm surrounding land and hence, not have detrimental effects on agricultural activity.   
36	Overall, I do not find that the proposed use and development will generate adverse impacts on agricultural activity either on the site or in the surrounding area.  The proposal can satisfactorily co-exist with agriculture.  
37	From a strategic policy perspective, the proposal and the location within a rural area in the RAZ where agricultural activity is not compromised is consistent with the intent of the planning scheme.  It is, of course dependent on how the proposal sits with the surrounding area in terms of environmental impacts.
Are the environmental impacts acceptable? 
38	Environmental impacts from the proposal to board dogs on the site relate to the effects of this activity with noise from dogs barking and with how wastes are to be managed.  This latter issue is linked with the proximity of the kennels and dog runs to a waterway and the steep slope of the land with respect to erosion and risks to water quality.
39	Additional concerns with the proposal relate to visual impacts on the local environment and impacts on local biodiversity given the proximity to the Crossover Regional Park and the location of the site within what the objectors consider is a wildlife corridor area with the links to the Neerim State Forest.
Noise impacts
40	The location of the site is within a quiet and relatively discrete rural area.  It is located near the end of a no-through road that services fundamentally three properties and their associated dwellings.  I note this local area is used in a moderate sense for agriculture comprising mainly grazing and for rural lifestyle purposes.
41	The objectors are concerned the proposal will impact on the quiet ambience and landscape character of the area and reduce their enjoyment of the sounds of wildlife and potentially impact local wildlife.   
42	The planning scheme includes policy under Clause 13.05-1S relating to ‘Noise management’ which seeks to assist the management of noise effects on sensitive land uses.  It includes strategies to ensure development is not prejudiced and community amenity is not adversely impacted by noise emissions and to minimise impacts on human health from noise exposure to occupants of residential use through separating land uses and suitable building siting and design as they are appropriate to the land use functions and character of the area.
43	The policy includes reference to policy guidelines that include the noise requirements of the Environment Protection Act 2017 (Vic) and its regulations.  Of relevance, policy documents referred to under this policy include the Noise Limit and Assessment Protocol for the Control of Noise from Commercial, Industrial and Trade Premises and Entertainment Venues, Publication 1826, Environment Protection Authority, May 2021 (‘Noise Protocol’).  
44	I also note the objectors’ reference to the Environment Protection Authority’s Noise Control Guidelines, Publication 1254.2 May 2021 (Noise Guidelines’) which indicate that dog kennels should be located at least 500 metres from residential areas.  The Noise Guidelines recognise that perpetual barking of dogs can cause problems at distances as far as 500 metres from the actual source.  
45	The objectors say that the surrounding existing dwellings are all within this distance to the proposed kennels.
46	I note the Noise Guidelines are primarily intended to be used by municipal officers to assist in the resolution of complaints or to avert a possible noise nuisance.  Many of the guidelines include suggested hours of operation which could be included in permit conditions and which if the nature of the activity occurs outside of such hours suggests it is sufficient to consider the activity unreasonable.
47	The respondents say the proposal has been assessed for noise emissions by an acoustic study undertaken by Enfield Acoustics Pty Ltd.  Mr Blackmore submitted that the acoustic assessment of the proposal has been conducted in accordance with the Noise Protocol and its results replace the more generic 500 metres buffer.  I accept this view because it is true that the acoustic assessment that has been undertaken is in accordance with the Noise Protocol which is referenced as a policy document under the planning scheme.  Its results are of value in considering noise effects from the proposal and in determining whether they are adverse or not.
48	I would add that the Noise Guidelines remain of value because they do provide some suggestions for ensuring the impacts of noise emissions from the proposal can be managed and minimised in accordance with the policy.
49	Regarding the acoustic assessment, the objectors were critical of the report because of its omission of the dwelling to the north at 41 Mill Road and its reliance on modelling to assess noise impacts.  The objectors say they already can hear the barking of the existing dogs on the site, particularly from the existing dwelling at 32 Mill Road.  
50	They say the valley topography of the site forms an amphitheatre shape that funnels noise towards the east and to the existing dwelling at 32 Mill Road. 
51	The acoustic assessment identified various residential receptors around the site missing the closest dwelling to the north at 41 Mill Road.  I note this oversight, however, from my questions of Council and the respondent and my inspection, it was clear that a hill effectively separates the dwelling from the proposed kennels.  It is known that if a clear line of sight is interrupted by topography and not available, the ability to hear noise is significantly disrupted and minimised.
52	The acoustic assessment has applied the requirement of the Noise Protocol for establishing the appropriate noise level criteria and timing for measuring noise emissions.  Sound power levels have been identified based on the experience of past work by Enfield Acoustic Pty Ltd together with a 5dB adjustment for the impulsive character of dogs barking and applied 3D topographic data to the modelling, all of which I consider standard practice and acceptable.
53	The results indicated that for day and evening periods the proposal would be compliant with the relevant noise criteria and that there would be non-compliance for nighttime periods for the two dwellings at 32 Mill Road by up to 4dB(A), which would impact on sleep.
54	The acoustic assessment identified that if all dogs are housed within their respective kennels between the hours of 10.00pm and 7.00am, the proposal would be compliant with the noise criteria established under the Noise Protocol.  The acoustic assessment therefore concluded with recommendations that:
Noise from the Subject Land is required to comply with EP Regulations 2021 and Publication 1826: Noise Limit and Assessment Protocol for the Control of Noise from Commercial, Industrial and Trade Premises and Entertainment Venues (Noise Protocol);
Dogs are to be boarded within their respective enclosures between 10pm to 7am on all days.  Dogs are not permitted to be within communal and/or outdoor pens during these hours. 
55	The acoustic assessment did not find it necessary to require specific acoustic treatment of the kennels and that the proposed construction of the kennels would be adequate for acoustic mitigation.
56	In this regard, I am satisfied with the findings of the acoustic assessment.
57	I note Council has proposed a condition requiring amended plans to show floor plan and elevations with acoustic treatment to the kennels.  I am satisfied this would be appropriate in further assisting to minimise adverse impacts with noise emissions from the proposal. 
58	Regarding noise impacts on wildlife, I am not aware of any guidance with respect to the effects of noise emissions on wildlife.  I acknowledge there are no impacts on native vegetation arising from the proposal and hence no adverse impacts on biodiversity and habitat values.
59	The Crossover Regional Park is to the south of the site and is separated from the proposed kennels by an existing shed building.  I also note the kennels are to be constructed on a slope with the kennels excavated into the hillside which effectively turns their back to the Crossover Regional Park.  
60	The combination of the buffering provided by the existing shed, the cutting into the hill of the kennels and lowering of their built form from view of the Crossover Regional Park and by effectively shielding the visual presence of the dogs from the Crossover Regional Park, I consider the effects on wildlife to not be significant.
61	During the day, the dogs within the runs will most likely be heard if they bark.  However, I am satisfied that noise from any dogs barking during the day will not be unacceptable.  I note the Noise Guidelines provide guidance on appropriate times for feeding restricted to daytime hours of 7.00am to 6.00pm and for exercising between the hours of 9.00am and 5.00pm.  I consider these hours more appropriate than what Council has included as conditions.  I will include these requirements as conditions.    
62	Having regard to the above, I find the proposal is an acceptable outcome regarding noise. 
Waste management, water quality and erosion risk
63	Waste management is linked to the siting of the proposed kennels and dog runs on land with a slope of what the objectors estimate to be around 20% and in proximity (within 30 metres) to a waterway with risks to water quality from erosion of the land in the dog runs, the extent of excavation for constructing the kennels and how wastes from the proposal will be retained and disposed of appropriately.
64	The decision guidelines of the RAZ include reference to any integrated land management plan prepared for the site.
65	Clause 13.04-2S relating to ‘Erosion and landslip’ seeks to protect areas prone to erosion.  However, the strategies supporting the objective focus attention on areas identified or prone to erosion or subject to erosion.
66	The objectors say no information or assessment has been undertaken regarding erosion risk on the site.   
67	Similarly, policies under Clause 14.02-2S relating to ‘Water quality’ and Clause 14.02-1S relating to ‘Catchment planning and management’ and Clause 12.03-1S relating to ‘River and riparian corridors, waterways, lakes, wetlands and billabongs’ seek to either protect water quality or assist the protection of waterways including river and riparian corridors. 
68	 Clause 14.02-2S includes strategies looking to ensure that land uses that can potentially discharge contaminated runoff or wastes to waterways are sited and managed to minimise such discharges and protect water quality of surface water and streams and that land uses should be discouraged where they cannot sustainably be managed to minimise impacts on downstream water quality.
69	The objectors highlighted under Clause 14.02-1S a strategy to retain natural drainage corridors with vegetated buffer zones at least 30 metres wide along each side of a waterway to:
•	Maintain the natural drainage function, stream habitat and wildlife corridors and landscape values,
•	Minimise erosion of stream banks and verges, and
•	Reduce polluted surface runoff from adjacent land uses. 
70	They also highlighted policy to minimise stormwater flows and filtration of runoff to the waterway.
71	Clause 12.03-1S includes protecting waterway geomorphology and habitat value and enhancing these values.  The policy includes policy guidelines to locate earthworks and development a minimum of 30 metres from a waterway.
72	Generally, much of the concern expressed by the objectors related to the lack of assessment in the proposal on wastes and the relationship of the proposal to land slope and the waterway.
73	The objectors say the proposal is sited in a sensitive location having regard to the character of the area and for site-specific constraints such as land slope, proximity to a waterway and to the Crossover Regional Park and the potential for impacts on biodiversity.  Given these elements, the objectors say the absence of an integrated land management plan is significant in failing to demonstrate how the proposal is based on sustainable management practices for issues such as:
•	Waterway protection and revegetation/management.
•	Biodiversity protection.
•	Waste management.
•	Agricultural activity on the remainder of the site.
74	The respondents rely on a Land Capability Assessment report prepared by AC Geotechnical Pty Ltd dated 22 November 2023 (‘LCA’).  They say the LCA identified the extent of wastes that would be produced by the proposal which included the location and level of treatment of liquid wastes via a septic tank system and wastewater effluent disposal area.
75	Of note the LCA recognises that design wastewater loads for boarding kennels are not covered by the Environment Protection Authority’s Code of Practice – onsite wastewater management, publication 891.4, 2016 (‘2016 Code of Practice’).  The LCA has used experience to determine a design wastewater load of 800 L/day for the proposed kennels.  Similarly, the 2016 Code of Practice does not cover organic loading from boarding kennels and an organic loading of 300 kg/day was adopted in the assessment.
76	I noted and questioned Council that the 2016 Code of Practice has been replaced by the Guideline for onsite wastewater management, May 2024 (‘2024 OWM Guideline’).  Council advised that the differences between the two documents is immaterial to the nature of the proposal.
77	The respondents say the LCA recommends secondary treatment of liquid wastes from the kennels with disposal via subsurface irrigation.  
78	I am satisfied that liquid wastes can be managed, captured and treated in a septic tank with appropriate wastewater disposal in accordance with the LCA recommendations.  I note Council’s Health officers did not object to the proposal and was advised that any septic tank proposal would require further consent from Council.  I consider issues around the design and operation of the septic tank treatment and effluent disposal system can be appropriately managed. 
79	The respondents propose to collect all organic wastes and store this material in bins for collection by a private waste contractor weekly.  I consider separating the organic waste load from the liquid waste stream appropriate.  It will lessen the waste stream load on the on-site waste treatment and disposal regime.   
80	Given the location of the septic and wastewater disposal area and the location of the bins near the proposed office and the distance of these areas from adjacent boundaries, I am satisfied waste management can be appropriately managed without adverse off-site impacts.  Weekly collection via bins by a private waste contractor is a reasonable outcome.  Nevertheless, Council has sought to include a condition requiring a waste management plan which I consider is appropriate.  The objectors have suggested embellishment of the condition to refer to the nature and quantity of waste and methods of disposal, which I accept. 
81	The kennels and associated dog runs are proposed to be sited on steeply sloping land.  The slope upon which the kennels are to be constructed, and dog runs sited is currently well covered by pasture grasses and does not show evidence of active erosion.  This is confirmed by the view of the LCA that the land is of minor erosion potential. 
82	The proposal includes significant earthworks for constructing the kennels due to the steep slope of the land.  The extent of earthworks is around 275 cubic metres over a length of around 45 metres and with 2.1 metre high retaining walls.  However, the extent of earthworks is restricted to the kennels, which are only just within a 30 metre setback at 29.1 metres from the designated waterway.
83	The dog runs are much closer to the waterway with the closest point associated with perimeter fencing around 0.5 metres.  Council submitted that fencing is exempt from a permit under Clause 62.02-2 given no permit is specifically required elsewhere under the controls affecting the site.  At any rate, I consider the impacts from fencing to be minor and relatively lightweight with little consequence in terms of erosion of water quality risks.
84	Operation of the dog runs may potentially impact on water quality due to continual use by dogs exercising with potential for loss of grass coverage and soil loss due to the prevailing steep land slopes.  Despite this risk, I consider they are low and can be managed through rotation of the dog runs if they begin to appear degraded with loss of vegetation coverage.  I will include a condition requiring the dog runs to be monitored and to be spelt from use if they show signs of lack of vegetation cover.
85	The waterway appears to be further from the dog runs than shown on the plans and I am persuaded that impacts on water quality from the use of the kennels and dog runs on the waterway will not be significant.  Maintenance of grass cover of the dog runs will be important and will also act as a filtration system for any runoff.  The waterway is ephemeral, well vegetated and forms part of the headwater of the broader Red Hill Creek system.  On this basis, I do not consider impacts from waste or on the waterway to be significant.
86	Regarding policy for a 30 metre buffer, this is in relation to ensuring detrimental effects are minimised and that the waterway function is not undermined.  I am satisfied these values will not be compromised by the proposal.  
87	The respondents say all excavated fill material will be taken off-site for appropriate disposal.
88	I noted from my inspection that other buildings including dwellings have been excavated into hillslopes with cut and fill techniques with battered slopes.  The area is steeply undulating country with much development in the way of roads and buildings.  The kennels are small, and the extent of excavation should be well supported by the proposed retaining walls.  Disposal of the excavated material will be important including ensuring it is stockpiled distant from the waterway.  I will include a condition to ensure excavated material is appropriately managed and disposed appropriately and that construction is managed to minimise soil erosion to protect the waterway from the risk of sedimentation.
89	Overall, I consider the risk from wastes, erosion and the steep slopes of the site are minor and capable of appropriate management.  
Stormwater management
90	With respect to stormwater, the respondents say all roofed areas will be drained and captured in water tanks and that any runoff within the dog runs will be adequately absorbed or filtered by the grassed coverage before any stormwater discharges into the waterway.
91	Although information about how this will be undertaken is lacking, I accept that stormwater runoff from hard surfaces can be captured and managed.  Other areas that remain permeable should be capable of absorbing and filtering stormwater given the area of land.
92	As a safeguard however, I will include a condition both for amended plans and requirements relating to stormwater management.  
Visual impacts
93	As I mentioned earlier, the kennels are proposed to be excavated into the hillside and constructed in muted tones.  The buildings are relatively small structures comprising four buildings with a combined floor area of approximately 210.16 square metres that will sit within a fenced compound.  
94	The site is in a valley with both scattered vegetation within the site and more extensive vegetation along the boundaries of the site, together with a building height of 3.195 metres, small size and lowered position in the hillside culminates in a built form that will not be a prominent feature in the overall landscape.  In my view, the proposed development results in an acceptable outcome.
 Biodiversity impacts
95	Regarding impacts on biodiversity, the objectors were concerned the proposal will impact on the movement of wildlife within broad corridors associated with the Crossover Regional Park and Neerim State Park.  I understand that the presence of dogs may disturb local wildlife.  However, the visual presence of the dogs should be minimal given they will be housed within kennels and contained within a defined and fenced compound.
96	I do not consider the proposal will lead to significant disruption to local wildlife.
Is traffic safety impaired?
97	The use of Mill Road and the broader road network by the proposal was raised as a concern by the objectors.  Related to this are the requirements for car parking. 
98	Clause 52.06 addresses car parking requirements under the planning scheme.  The clause does not specify a car parking ratio for the proposed use and requires that car parking must be provided to the satisfaction of Council.  The proposal provides for four car parking spaces.  They are to be located off the main driveway that leads to the existing dwelling to the east.  The kennels are proposed to be located to the west of the existing dwelling and a new gravel path is proposed to connect them with the proposed car parking spaces.
99	Council says the proposed car parking is sufficient.  It does not believe that the drop off and pick up times for 30 dogs would be expected to occur all at one time.  Council says given the nature of the proposal, it is likely that drop off and pick up times would be spread and occur at different times.  Council says the non-simultaneous nature and distributed pattern of customer arrivals provides flexibility which will both minimise risks to traffic safety and reduce strain on parking demand.
100	The objectors are concerned with the use of the narrow Mill Road, particularly sections of the road along cuttings through hillslopes which will make it difficult for two vehicles to pass one-another.  They say this reduces the functionality and safety of the road.
101	My view on this issue is the reverse.  I considered the narrow nature of Mill Road will aid in traffic safety as it will force vehicle movements along Mill Road to travel at slow speeds.  My view is reinforced by the short length of this road which, together with the relatively low expected numbers of trips and sporadic nature of use, should not have the effect of impairing traffic safety.
What conditions are appropriate?
102	I have had the benefit of a 'without prejudice' discussion of draft permit conditions circulated by Council.  
103	There was some discussion between parties as to what conditions should be imposed.  I have discussed some of them within my reasons.
104	The applicants were critical that the proposal lacked sufficient information in assessing the impacts of the proposal.  They were critical of the lack of a land management plan and have requested one be required as a condition of any approval.
105	I am not convinced a land management plan is required.  The respondents say much of what would be included in a land management plan has been provided with various responses with the proposal.  I agree and do not consider it necessary, in this instance, to require a land management plan given there are other conditions addressing waste and construction management.  I do not consider it necessary to require landscaping given the vegetated character and bushfire status of the site and its surrounds.
106	I have included conditions I consider appropriate for the proposal and the issues regarding the proposal.
Conclusion
107	For the reasons given above, the decision of the responsible authority is varied.  A permit is granted subject to modified conditions.

Christopher Harty
Member			

Appendix A – Permit DESCRIPTION AND Conditions
Permit No	PLA0186/23	
planning scheme	Baw Baw Planning Scheme	
responsible authority	Baw Baw Shire Council	
address of the land	31 Mill Road
CROSSOVER VIC 3821	
the permit allows:

Planning scheme clause	Matter for which the permit has been granted	

Clause 35.08-1	Use the land for domestic animal husbandry	
Clause 35.08-4	Construct or carry out a building or works associated with a section 2 use
Construct or carry out a building within 100 metres of a waterway	
Conditions to apply to the permit:
Amended plans required 
1	Before the development starts, 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 form part of the permit.  The plans must be drawn to scale with dimensions and a digital copy must be provided.  The plans must be generally in accordance with the plans submitted with the application (LaTrobe Valley Drafting dated 19 October 2023) but amended to show: 
(a)	Floor Plan and Elevations updated to show acoustic treatment to kennels.
(b)	Revised elevation plans to show the proposed buildings in a palette of muted green and grey tones. 
(c)	Corrected information in relation to the existing dwelling on 41 Mill Road, Crossover. 
(d)	Waste Management Plan in accordance with the requirements of Condition 3. 
(e)	Stormwater Management Plan and requirements and provision for stormwater management including stormwater runoff from both hard paved and permeable surfaces in accordance with the requirements of Condition 22.  
Layout not altered
2	The use and development as shown on the endorsed plans must not be altered or modified unless with the prior written consent of the responsible authority. 
Waste management plan 
3	Before the development starts, a Waste Management Plan must be prepared to the satisfaction of the responsible authority addressing waste disposal and collection and must be submitted to and approved by the responsible authority.  When approved, the plan will be endorsed and form part of the permit. The plan must include: 
(a)	Details of the nature and quantity of liquid and solid wastes to be collected and disposed including with reference to:
i	Liquid wastes collected, treated and disposed of on-site in accordance with an approved wastewater treatment and disposal system. 
ii	Collection of solid and organic wastes is to be undertaken by a private contractor. 
(b)	Description of methods of waste collection and disposal of waste and the equipment to be used for the handling of different waste streams. 
(c)	Bin quantity, size, dimensions, colour and labelling. 
(d)	Waste collection frequency and times: 
i	State that waste collection must be within operating hours. 
(e)	Details on the site plan showing location and area allocated for bin storage of garbage bins.  The bin storage area must have appropriate access. 
(f)	Details on the site plan showing waste collection point(s) in relation to the bin storage area. 
(g)	Details on the Clinical and Related/Hazardous Waste expected to be generated from the development and use of the site (e.g.) type of waste, estimate volumes, storage, collection, transporting and disposal practices. 
Number of dogs 
4	Unless with the prior written consent of the responsible authority, no more than thirty (30) dogs may be kept at the facility at any one time. 
Exercise times
5	Exercising of the dogs must not occur before 9.00am or after 5.00pm daily, unless with the prior written consent of the responsible authority. 
Feeding times
6	Feeding of the dogs must be restricted to the daytime hours of 7.00am and 6.00pm, unless with the prior written consent of the responsible authority.
Lock up of animals at night
7	All thirty (30) dogs must be kept locked inside during the night-time period between the hours of 8.00pm - 8.00am and confined to the nominated area on the endorsed plans other than for transporting off-site and/or the delivery for the primary purpose of health care, all to the satisfaction of the responsible authority. 
Management of dog runs
8	The dog runs must be monitored for vegetation cover and their use rotated and/or rested from use if they show signs of lack of vegetation cover.
Use conditions 
9	Unless with the prior written consent of the responsible authority, the hours of operation for customer activity including dog drop-offs and pick-ups are: 
(a)	7.00am to 5.00pm Monday to Friday.
(b)	7.00am to 3.00pm Saturday and Sunday.
10	Access to the kennels must be restricted to the permit holder or to persons authorised under the permit holder's direction and supervision, or with the permit holder's authority to the satisfaction of the responsible authority. 
11	No more than two (2) staff members which may include the land owners may be present onsite at any given time. 
12	The kennels must be constructed to visually screen stimuli and provide electronic masking noise devices to reduce audible stimuli to the dogs to the satisfaction of the responsible authority.
13	The use and development hereby permitted must be operated in accordance with the Code of Practice for the Operation of Boarding Establishments, Animal Welfare Victoria (as amended from time to time) to the satisfaction of the responsible authority.
General amenity
14	Unless otherwise authorised in writing by the responsible authority, dogs must not be accommodated, exercised or run outside the exercise yards and kennels provided.  Where permitted, dogs must be exercised outside the land only in accordance with the provisions of the Domestic Animals Act 1994 (Vic).
15	The site shall be operated and maintained so as not to prejudicially affect the amenity of the locality by reason of appearance. 
16	Animal waste on the property must be treated or disposed of in accordance with an approved Waste Management Plan (Condition 3) to the satisfaction of the responsible authority in such a manner to ensure that:
(a)	Offensive odours are not detected beyond the boundaries of the land. 
(b)	The wastes are not a nuisance as described in the Public Health and Wellbeing Act 2009 (Vic).
(c)	The wastes are contained within the property boundaries of the land. 
(d)	All waste arising from the use that cannot be retained and treated via the new on-site septic system must not be disposed of via Council Waste Collection. 
17	Noise created by animals on the premises must not cause unreasonable detriment to the amenity of adjoining properties to the satisfaction of the responsible authority. 
Public health conditions
18	Wastewater arising from the development must be treated and retained within the lot boundary by a septic tank system (or other approved system) in accordance with the requirements of the Environment Protection Act 2017, EPA Publication Guidelines for onsite wastewater management, 22 May 2024 (or as amended) and the responsible authority. 
19	Prior to commencement of associated works, an application to install a septic tank system must be approved in writing by the responsible authority.
Construction management plan
20	Before the development or any site works (including excavation) start, a Construction Management Plan must be approved and endorsed by the responsible authority.  The Construction Management Plan must:
(a)	Be prepared to the satisfaction of the responsible authority
(b)	Be prepared in accordance with the Civil construction building and demolition guide, Publication 1834.1 (EPA, 2023) and address the following risks:
i	Noise. 
ii	Erosion, sediment and dust.
iii	Management of excavated stockpiles.
iv	Contaminated stormwater runoff.
v	Chemicals.
vi	Waste.
(c)	Detail of how soil disturbance can be minimised to prevent soil erosion and where and how any excavated soil will be stockpiled and disposed.  Excavated soil must not be located within 30 metres of a waterway and is to be appropriately disposed off-site to an authorised location.  
Ongoing soil erosion control
21	All works must be undertaken in a manner that minimises soil erosion to greatest extent practicable, and any exposed areas of soil must be stabilised to prevent soil erosion, to the satisfaction of the responsible authority.
Stormwater Management Plan
22	Before the development starts, a stormwater management plan must be approved and endorsed by the responsible authority.  The stormwater management plan must:
(a)	Be prepared to the satisfaction of the responsible authority.
(b)	Include details of the proposed stormwater management system, including drainage works and retention, detention and discharges of stormwater to the drainage system.
(c)	Set out how the stormwater management system will be managed on an ongoing basis.
(d)	demonstrate how stormwater runoff will be managed to prevent degradation to the form and function of any waterway.
Stormwater management system – implementation and management
23	The stormwater management system approved by the responsible authority and included in the endorsed stormwater management plan must be constructed, managed and maintained to the satisfaction of the responsible authority.
24	The details of the stormwater management system must not be altered from the details in the endorsed stormwater management plan without the written consent of the responsible authority.
Expiry – Use and development
25	This permit will expire if one of the following circumstances applies:
(a)	The development is not started within two (2) years of the issued date of this permit.
(b)	The development is not completed within four (4) years of the issued date of this permit.
(c)	The use does not start within two (2) years of completion of the development.
In accordance with Section 69 of the Planning and Environment Act 1987 (Vic), an application may be submitted to the responsible authority for an extension of the periods referred to in this condition.
– End of conditions –