VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P202/2022
	
CATCHWORDS	
Characterisation of proposed use – Farming Zone – Animal husbandry – Domestic animal husbandry – meaning domestic animal – keeping foxhounds for hunting purposes	

Applicant	Melbourne Hunt Club Inc	

Responsible Authority	Wellington Shire Council	

SUBJECT LAND	970-994 Heyfield-Seaton Road
SEATON Vic 3858	

HEARING TYPE	Hearing	

DATE OF HEARING	21 September 2022	

DATE OF ORDER	22 December 2022	

CITATION	Melbourne Hunt Club Inc v Wellington SC [2022] VCAT 1470	

Order
1	Pursuant to section 124 of the Victorian Civil and Administrative Tribunal Act 1998, I declare that: 
The proposed use of the subject land by Melbourne Hunt Club Inc for keeping up to 30 foxhounds is characterised as Animal husbandry for the purpose of Clause 35.07 of the Wellington Planning Scheme.  

Dalia Cook
Member			

Appearances
For applicant	Graeme Peake of Counsel by direct brief
Mr Peake called Mr John Masterton, life committee member of the Hunt Club to give sworn lay evidence	
For responsible authority	Kate Kennedy, Solicitor, Planology	

Information
Description of proposal	Use and development of land for keeping foxhounds	
Nature of proceeding	Application under section 149A(1)(a) of the Planning and Environment Act 1987 – to make a declaration as to how to characterise the use	
Planning scheme	Wellington Planning Scheme 	
Zone and overlays	Farming Zone (33 hectares)
No overlay controls apply	
Permit requirement	Clause 35.07-4 (buildings and works)	
Tribunal inspection	A site inspection was not necessary since the key issue in this proceeding related to the proper characterisation of the use.  The Tribunal was provided with photographs, site plans and other material provided by the parties by way of submission.    	

Reasons
Introduction 
1	The Melbourne Hunt Club Inc (Hunt Club) acquired land it proposes to develop and use for keeping up to 30 foxhounds.  The foxhounds would be used in the Hunt Club’s hunting activities on other land.  
2	The Hunt Club applied to Wellington Shire Council (Council) for a planning permit to develop the land, since an uncontested permit trigger in the planning scheme is the development of land within 100 metres of a waterway. 
3	Council considered that planning permission was also required for the use of the land, since it should be properly characterised as Domestic animal husbandry.  
4	By contrast, the Hunt Club considered that the proposed use of the land should be characterised as Animal husbandry, which is a section 1 (as-of-right) use under the Farming Zone provisions. 
5	It applied to the Tribunal for a declaration to this effect under section 149A(1)(a) of the Planning and Environment Act 1987.  
6	Both parties requested the Tribunal to make a declaration to give effect to its findings as to how the use should be characterised.  
7	I accept that such a declaration would pertain to a live dispute and would assist the parties to manage the lawful use of the land moving forward. 
How should the proposed use be characterised? 
Planning scheme provisions and definitions
8	Both Animal husbandry and Domestic animal husbandry are sub-categories of land use within the term Agriculture.  
9	Relevantly, Agriculture is defined in Clause 73.03 of the planning scheme as including:
Land used to:
…
b) keep, breed, board or train animals including livestock, and birds…  
10	Animal husbandry is a sub-set of Agriculture and is defined as: 
Land used to keep, breed, board or train animals, including birds. 
11	Domestic animal husbandry is a further sub-set of Animal husbandry (by reference to the nesting diagram in Clause 73.04-2) defined as:
Land used to keep, breed, board or train domestic animals. 
12	The term ‘domestic animal’ as referred to in this definition is not defined in the planning scheme.  Its ordinary meaning should therefore be applied.
13	In this proceeding, the consequence of the differing land use characterisation between the parties is that Animal husbandry is a use that could be carried out on the subject land without a planning permit, whereas Domestic animal husbandry involving the keeping of more than five animals would require a planning permit.  
Approach to characterisation of use
14	Parties agreed on the current approach to statutory interpretation, whereby the principal role of the Tribunal is to ascertain the purposive meaning of the statutory provision in its context.  The structure, context and expression of the provision to be interpreted are highly relevant to establishing relevant meaning.  
15	These principles are invoked when applying land use definitions in the planning scheme, being subordinate legislation. 
16	Parties relied on seminal cases as to the approach required when characterising a land use for the purpose of the planning scheme. 
17	Essentially, the task involves considering relevant facts to ascertain the real and substantial purpose of the use of the land, as confirmed by Shire of Perth v O’Keefe. 
18	In Cascone & Mario Vella v Whittlesea CC, the Supreme Court articulated principles relevant to the ascertainment of the purpose of a use which I have applied in my analysis below. 
19	Another relevant consideration is the approach taken in National Lifestyle Villages Pty Ltd v Wyndham CC which confirmed that if a use comfortably or clearly falls within one or more specified land use term, the user is entitled to take advantage of the more favourable position, with the choice often giving preference to the more specific term.  However, it is not always appropriate to regard a use as falling within more than one specified land use term.
20	Parties agreed that related legislation, such as the Domestic Animals Act 1994 did not provide any relevant definition or assistance in the task before me.  
Key elements of the proposed use
21	The Hunt Club proposes to keep up to 30 pure bred foxhounds on the subject land.  The dogs would be housed as a pack in kennels and supporting infrastructure would include exercise runs. 
22	A kennel master would live on site in an existing dwelling immediately to the southwest of the proposed kennels and care for the dogs.  
23	The dogs would be microchipped, registered, tattooed and vaccinated.  
24	The dogs would be trained to recognise voice commands and work as a pack when hunting.  The dogs would be transported by vehicle off site when used in the Hunt Club’s hunting activities on other land.  
25	Breeding would be an ancillary activity which would be undertaken principally to maintain the Hunt Club’s pack, but not for commercial sale. 
26	Boarding would not be offered to other dog owners.  
27	Mr Masterton’s evidence confirms the legislation and various codes of practice that are intended to be complied within Hunt Club operations.
Outline of submissions for the parties
Applicant
28	The applicant submitted it was critical to consider the purpose for which the dogs were being kept.  Mr Peake explained that the sole purpose of keeping this pack of foxhounds is ‘to hunt foxes as a pack’.
29	In essence, the applicant considered that an animal could only be regarded as a domestic animal if it was in association with a home or household; used for domestic purposes.  Similarly, it suggested that the term ‘domestic’ was used in the planning scheme to distinguish animals kept primarily for comfort, companionship or security, as distinct from those kept for profit or utility.
30	Mr Peake submitted that:
For the purpose of the Planning Scheme, it is submitted that a distinction should be drawn between animals that are domesticated for human purpose, such as horses, cows, sheep, chickens and the like and animals that are domestic, in that they are kept primarily for their companionship purpose and live in a domestic, that is household, setting…
…A dog is usually considered a domestic animal. However dogs are kept for other purposes than domestic purposes. Dogs can be kept for drug detection, police work, rescue work, and stock handling. Dogs kept for such utility purposes are not domestic animals for the purpose of the planning scheme. In this case, a dog is not a domestic animal if it is one of a pack of 30 foxhounds kept in a dedicated foxhound kennel, for the purpose of hunting foxes and for no other purpose. 
31	The applicant also compared other instances where the word ‘domestic’ was used in the planning scheme, such as in the context of wastewater treatment.  It suggested that this evidenced an intention to associate the term domestic with a household, rather than commercial, industrial or agricultural purposes.  
32	Since the dogs were being kept for hunting purposes, they were not to be regarded as ‘domestic’ animals.  Other indicators that they were not domestic animals were that: 
•	they would not have any human interaction other than with the kennel master and when they are being used off site for an active hunt.
•	they would not undergo any form of assimilation or training as a companion type animal.  Any training is directed to enhancing the participation of each dog in the hunting pack. 
33	Mr Masterton’s evidence was that ‘the hounds are not domesticated.  They are bred and trained to hunt foxes, not bred, and trained to be domestic animals’.  He explained that ‘there is nothing “domestic” about the foxhounds that make up [Hunt Club’s] foxhound pack.  They live, feed, sleep, train and hunt as a pack’.  
Council
34	Council acknowledged that the applicant’s interpretation was open to the Tribunal.  However, it advised that it was ‘cautious about artificially applying a broad land use term to the proposal where another, more specific land use term is a better fit’.  
35	In summary, Council submitted that a dog (including a foxhound) is a type of domestic animal rather than a wild animal, and that keeping such an animal would therefore constitute Domestic animal husbandry. 
36	It considered this approach was valid for reasons including: 
•	the meaning of the definitions in the planning scheme; 
•	the structure of the planning scheme including the nesting diagrams, noting that Dog breeding is nested under Domestic animal husbandry.  It considered that the ultimate purpose of keeping the dogs was irrelevant to the land use term, since the dogs were still domestic animals; and 
•	the change in the planning scheme definitions over time, including the revision of land use terms nested under Agriculture by Amendment VC159 in 2019 – removing the reference to ‘domestic pet’ and replacing it with the term ‘domestic animal’, which was considered to have expanded this land use term to include other animals.   
37	Mr Wong submitted that:
In Council’s view, the purpose for which a foxhound is kept, whether it be to live with humans as a pet or for some other purpose, is not relevant to applying the land use term…
There are many examples of dogs being kept for purposes other than as a ‘pet’. Dogs might be engaged in farm work or police work, trained for obedience trials or as guide dogs or exhibited for show. Dogs might be used to guard livestock from external threats or repel predators.
The fact that dogs are involved in non-domestic activities or kept for non-domestic purposes does not mean they are something other than ‘domestic animals’.
38	Alternatively, Council submitted that the way in which the dogs were proposed to be kept on the land as part of this proposal, i.e. in kennels under the care and training of a kennel master to assist humans in hunting activities, meant that they should be regarded as domestic animals. 
Tribunal evaluation
39	On first blush, both interpretations of the land use terms appear valid in the circumstances. However, on closer consideration, I consider that the approach advocated for by the applicant is correct and preferable. 
40	As mentioned, the key task is to determine the real and substantial purpose of the use of the subject land.  
41	I find that this is a form of animal husbandry, more specifically, dog keeping. 
42	Clearly, dog keeping is a form of land use coming within the term Agriculture and would be encompassed by the sub-category Animal husbandry on a direct application of the definition in Clause 73. 
43	The determinative question, as highlighted by both parties, is whether it is appropriate to adopt the more specific land use term Domestic animal husbandry.  Given the wording of this definition (noting the singular change in wording compared with the broader definition), this depends on whether the dogs being kept would meet the definition of ‘domestic animals’ in for the purposes of this term in Clause 73. 
44	There appear to be two key ways that dictionary definitions define the term ‘domestic’.  The first is having to do with the home or living with humans.  The second, is relating to a tamed animal, not wild.   
45	I consider that the focus on the concept of a ‘domestic animal’ in the land use definition in the planning scheme is intended to be on the way in which the specific animal may relate to a household, rather than on the type of animal per se (being tame or wild).  This is for a number of reasons. 
46	The first is consistent with the nature of the real and substantial purpose enquiry – the proper enquiry for the purpose of characterisation is on how the land is proposed to be used, not necessarily on the individual characteristics or breed of the particular animal/s being kept. 
47	To take a different view would deflect the purpose of the use of the land to require a more forensic enquiry about whether each particular animal being kept is inherently ‘domestic’ or not. 
48	This exercise is potentially fraught without regard to the particular circumstances of the keeping of that animal, which I regard as the focus of the land use in question. 
49	I differ from Mr Masterton’s evidence in that I find that the foxhounds proposed to be kept are ‘domesticated’ even though they retain some ‘pack characteristics’.  Clearly, they are trained as companions and aids to humans in hunting expeditions. 
50	However, as Mr Peake highlighted, I consider this is a different analysis to the one required by the planning scheme; whether they are ‘domestic animals’.  
51	For example, a camel could be domesticated in that it can be trained to be helpful to humans.  For example, it could be trained to be saddled and ridden or housed but, unless its use was associated with a residential land use, in my view it would not be a domestic animal for the purposes of the planning scheme definition.  
52	Therefore, my view that the essence of a domestic animal in the planning scheme is not necessarily its breed or behaviour, but depends on an integral relationship with a domicile, or place of residence.  This is supported by binding case law in Burdett v Bowden & Anor. 
53	I acknowledge that the relevant planning scheme definition has changed since that decision, and now uses the term ‘domestic animal’ as opposed to the former term ‘domestic pet’.  Another change was to delete the separate defined use of Animal keeping.  
54	However, it is clear that the Court’s fundamental reasoning in that case has significant bearing on the application of the meaning of the term ‘domestic’.  
55	To the extent that it refers to a ‘pet’, the Court accepted that this element refers to ‘the keeping of any animal that is domesticated or tamed and kept as a favourite or treated with indulgence and fondness’.  
56	Relevantly for the purpose of the current proceeding, the Court concluded that:
I do not, however, accept that the grazing and keeping of horses for the purposes of riding and showing is itself the keeping of domestic pets. The notion of ‘domestic pets’ requires the keeping of the animals to be undertaken in conjunction with residence on land. It contemplates that the keeping of the animals is an adjunct to or incident of domestic life.
57	Similarly, I consider that the intent to keep foxhounds for the sole purpose of hunting is not of itself the keeping of domestic animals.  
58	Another contextual reason confirming the narrower view of a domestic animal is the use of the term ‘domestic’ elsewhere in the planning scheme, as pointed out by the applicant.  It appears that this is almost consistently used in reference to a relationship with a household.  
59	I acknowledge that the term Domestic animal boarding is defined as ‘land used to board domestic animals’ and specifically includes boarding kennels as an example.  However, in my view, this of itself does not justify a finding that the planning scheme intends to treat all dogs as domestic animals.  
60	Instead, the proposed use is for dog keeping, with ancillary training and/or breeding.  
61	If the land itself was used principally for fox hunting, this might be different, because it may be arguable that the use of the land is for recreation, conservation (pest control) or other purposes.  However, this was not put to me by the Hunt Club.  
62	I accept that there can be numerous meanings attributed to the term ‘domestic animals’ depending on the context.  
63	I accept that a foxhound may well be a domestic animal in other settings.  This was also borne out by the evidence of Mr Masterton who explained that foxhounds can be kept as domestic pets and that, in the past, dogs who have retired from the Hunt Club have been housed in members’ homes for the remainder of their lives.  In this way, if more than five were kept in association with a Dwelling and the use was not ancillary, it would come within the land use term Domestic animal husbandry. 
64	However, the critical context in this instance is the planning scheme, specifically the provisions of the Farming Zone.  The purposes of the Farming Zone include implementation of policy and, relevantly:
To provide for the use of land for agriculture.
To encourage the retention of productive agricultural land.
To ensure that non-agricultural uses, including dwellings, do not adversely affect the use of land for agriculture.
…
To encourage use and development of land based on comprehensive and sustainable land management practices and infrastructure provision…
65	In my opinion, it is not the category or breed of animal that is necessarily relevant in terms of its potential for impact on these zone purposes, it is the way in which the particular use will be carried out.  
66	The Farming Zone draws a clear distinction between dwellings and associated uses (requiring permission for land under 40 hectares such as this), compared with other agricultural activities (including animal keeping) that are as-of-right.  
67	Inherently, a policy decision has been made that uses directly associated with residential land use in the Farming Zone may have a greater capacity to impinge on the key zone purposes.  Other activities are afforded greater flexibility.  
68	The foxhounds would be kept as working dogs for the purpose of utility.  This excludes them from the characterisation of ‘domestic animal’ in the circumstances of this case.  
69	For completeness, I acknowledge that there is some component of habitation of the land by the kennel master, more in the nature of a caretaker’s residence, to care for the animals.  Even if this use was regarded as a Dwelling, I consider that the manner and purpose for which the dogs are proposed to be kept on behalf of the Hunt Club to facilitate its operations would mean that the dogs are not being kept as domestic animals in conjunction with a Dwelling.  
Further observations
70	I am not in a position to make any educated findings about the reason/s for planning scheme amendment VC159 changing the term ‘domestic pet’ to ‘domestic animal’.  
71	However, just as Council’s view is open, that this was intended to broaden the category of animal encompassed by this term, so too is the contrary view - it was borne out from earlier cases referred to by parties that an inappropriate focus was on determining whether a particular animal was being kept as a ‘pet’.  The change in the planning scheme has removed this uncertainty. 
72	I make a further observation about the practical consequences of my decision.  
73	It may be more desirable to take a broader view to include all dogs as domestic animals to activate a trigger for a planning permit.  This would enable consideration of the keeping of more than five dogs in the zone by way of the planning permit process.  
74	However, this is not how the Farming Zone is presently structured.  Dog keeping is a form of Agriculture that is granted similar allowances to other forms of agriculture, notwithstanding its potential for impacts on amenity or other agricultural activities.  
75	It follows that if no permission is required for a particular land use, its land use impacts and interactions cannot be regulated. 
76	This is a decision for the regulators of the planning scheme.  My task is to apply the planning scheme provisions as they stand. 
Conclusion 
77	I consider that the correct and preferable characterisation of the current proposal is for the use and development of the land for Animal husbandry.  
78	The proposal does not involve the keeping of domestic animals since they are being kept for the purposes of utility (hunting) rather than domestic purposes.  
79	Consequently, a planning permit would be required for only the development of the land. 

Dalia Cook
Member