GMW would now additionally recommend that the shed complex be completely bunded and the runoff from the significant roof area and land within the bund be stored in a separate storage to the normal overland flows.

1. The subject land is zoned Farm Zone Schedule 1 and is also subject to two flood overlay controls, however only one portion of the development falls within one of these overlays, namely the construction of the shed pad and part of two of the sheds in the Land Subject to Inundation Overlay. Planning permission under this overlay is exempted from third party objection and appeal rights, as acknowledged by Ms Hicks for the objectors. However matters about water quality and flood issues are also relevant consideration under the Broiler Code of Practice and general decision guidelines of Clause 65. We are satisfied Ms Hicks conducted her submissions within these confines of the relevant avenues available to the objector parties.
2. It was common ground that the particular part of the review site where the eight sheds would be located is not affected by the Floodway Overlay.
3. Various neighbours object to the proposed broiler farm. They raise concerns about the siting of the farm close to Murchison East and areas planned to accommodate the towns expansion and in an area where there is an expanding tourist activity associated with local wineries. In respect to the latter, the concerns are that odour and perceptions about the 'industrial' nature of the broiler farm will adversely impact tourism. Some of the local vineyard owners are concerned that the odours will taint their grapes and ultimately the quality of their wines. Other landholders are concerned that the odours will adversely affect the amenity of their homes, citing that they are already subject to some odours from current broiler and pig farming activities in the area. The local landholders are also variously concerned about drainage and the impact on groundwater quality, and increases in odour impacts from part of the farm becoming free range, which it is contended would be an 'as of right' change if the proposed broiler farm were to be approved.
4. The initial Delegate Report to Council supported the granting of a permit. However Council did not act on this recommendation and went on at a later meeting to issue a Notice of Refusal to Grant a Permit. In summary, Council's main concerns are that the proposed broiler farm would be in an inappropriate location, would have unacceptable impacts on nearby viticulture uses, and cause unreasonable amenity impacts (notably in relation to odours). Council has also highlighted what it sees as the 'overwhelming community response' that opposes the proposal.
5. The hearing of this matter came before us as a five day hearing over 3-7 February 2014. During this period we heard submissions from Mr Pridgeon on behalf of Council, from Ms Hicks on behalf of most of the objectors and from Mr Crawford for the Applicant. In addition Mr Martin made a brief submission in person and we received the expert and lay evidence that we have identified above. On the third 'hearing day' we carried out an all-day accompanied inspection of the review site and several objector properties. We also conducted an accompanied visit to a broiler farm in Nagambie operated by the principles of the permit applicant. We also drove past the 7-shed broiler farm to the east and noted the general location of the piggery.
6. During the hearing by consent we made rulings:
   • Clarifying that the 'Applicant' is 134th Larena Pty Ltd.
   • Removing crown allotment CA 164A from the application land.
   • Allowing the substituation of those plans listed in the TP Legal letter dated 16 December 2013.
   • Allowing the clarification of the description of the proposal, as part of the updating of the draft permit conditions.
7. Early in the hearing, Mr Crawford advised that an updated proposed Environmental Management Plan dated April 2013 had been prepared and given to him, yet inadvertently it was not circulated to the other parties prior to the hearing. After some discussion, Ms Hicks indicated that she was able to deal with this updated document in the course of the usual hearing process, bearing in mind the five scheduled hearing days. Mr Pridgeon sought an adjournment of the hearing, so as to have more time for the updated EMP to be referred back to relevant Council staff and the Councillors. After standing the hearing down, we returned and provided detailed oral reasons why we considered an adjournment inappropriate and unnecessary. However in the interests of procedural fairness, we required that the Applicant's expert planner Mr D'Amico, who relied on this updated EMP, present his evidence to the Tribunal no earlier than the morning of the fourth scheduled hearing day. In the final result, the updated EMP was duly tabled and in fact Mr D'Amico's evidence was received by the Tribunal on the fifth/final scheduled hearing day.
8. On the final hearing day, Mr Crawford tabled concept plans, showing a proposed updated location and size of the drainage retention dam, which would be to the north of the new sheds. This concept plan was tabled in response to certain drainage matter raised by the Tribunal at the beginning of the fourth hearing day. All other parties to the hearing were given the chance to comment on these concept plans. We are satisfied that there is no need for these concept plans to be circulated back to Goulburn Murray Water for comment, as we consider these plans to be within the scope of the abovementioned GMW email letter dated 16 January 2014.
9. We consider the key issues in this proceeding to be as follows:
   • The degree of strategic planning policy support for the proposal.
   • Whether the proposal would be too close to the Murchison township.
   • Whether the stormwater drainage aspects of the proposal are acceptable or present unacceptable risks to local water quality.
   • Whether the proposal would have unacceptable amenity impacts on the neighbouring properties, most notably in relation to odours.
   • Whether the proposal would present any credible risk of the 'tainting' of neighbouring vineyard products.
10. Our overall finding is that the proposal is acceptable, when assessed against each of these key factors. We consider there to be strong strategic planning support for the proposal in this location. While we acknowledge that Council and the objectors would prefer 'soil-based' farming activity for the review site, the reality is that both the planning framework and previous Tribunal decisions have accepted that broiler farms are a legitimate form of agricultural use per se on land zoned Farming Zone. This does not automatically bestow a right for such a use of course. Such use is subject to the right design and being in the right location to avoid a range of potential amenity impacts. We are persuaded that the concept plans tabled on the final hearing day demonstrate capacity to adequately address 'drainage' issues. We accept that the proposal will not have any unreasonable amenity impacts on the neighbouring properties because it has demonstrated full compliance with the Code of Practice requirements developed to address these issues. With respect to the issue about 'tainting' of the nearby vineyard products, we find that inadequate reliable evidence has been provided that would persuade us to refuse the proposal on this basis. In fact material presented for the applicant indicates that broiler farms and vineyards / wineries can co-exist.
11. Hence we have made orders directing that a permit issue, subject to the final version of the permit conditions set out in the Appendix to this decision. Our more detailed reasons follow.

Degree of strategic planning support for the proposal

1. By way of background, the subject land forms part of a larger area zoned Farming Zone Schedule 1. Some relevant purposes of this zone include "To provide for the use of land for agriculture' and "To encourage the retention of productive agricultural land". It was common ground that the subject land features fairly productive soils, as shown by the southern part of the subject land having until recently been used for tomato growing. Notwithstanding that a broiler farm is non soil-based form of farming:
   • we accept that it is still a legitimate form of farming per se; and
   • if the proposal goes ahead, the balance of the southern section of the review site plus the northern section will remain available for other forms of farming.

Hence we accept that the proposal is consistent with the general objectives of the Farming Zone. In the context of the major size of the whole review site, the combined area of the pad for the sheds and the drainage retention dam (at 8-10 hectares) is quite constrained. Remaining areas of the property can still be farmed, including graded areas where irrigation infrastructure remains.

1. We therefore do not agree that the broiler farm somehow causes a loss of agricultural land or agricultural activity on the subject property.
2. With respect to the State planning policy framework, similarly we consider the proposal consistent with the relevant policy provisions in Clause 14.01-1 (Protection of agricultural land) and Clause 14.01-2 (Sustainable agricultural land use). These State policies provide considerable policy support for the role of agriculture in the Victorian economy and community, of which the proposal would be one example. Where there was passing discussion during the hearing of other aspects of the SPPF, we do not see these other aspects as raising any particular concerns in our assessment of the proposal.
3. Pursuant to Clause 52.31 which provides a particular planning framework for the consideration of broiler farm proposals, applications are required to comply with the Victorian Code for Broiler Farms 2009 (the Broiler Farm Code).[5] All parties acknowledged this requirement. This Broiler Farm Code has the status of an Incorporated Document and thus forms part of the Shepparton Planning Scheme. It was put to us by the Applicant that the updated proposal does meet the requirements of the Code. Save for the issue about the EMP, this was not materially challenged by any other party.
4. Turning now to the local planning policy framework, we accept that it not only is very supportive of the role of agriculture in the municipality, but it also indicates that (where tension exists) agricultural activities should be given priority ahead of tourism activities in this type of location zoned Farm Zone Schedule 1.
5. Clause 21.01 (Municipal profile) of the scheme, under the sub-heading of 'Economy', emphasises the role of agriculture in the local economy in stating that:

The region has a strong and vigorous rural economy based on irrigated and dry land agriculture. A major strength of the economy is in the value-adding manufacturing and processing of agricultural produce. It has a supporting service industry base, notably Shepparton's role as a transport hub with a high level of freight movements and volume.

1. Clause 21.06-1 of the scheme sets out the economic and land use importance of agriculture to this municipality and its community. Irrigated agriculture underpins the economy and is of national importance. The region's workforce is heavily dependent on all forms of agricultural production. This clause of the MSS sets out a number of likely 'drivers of future successful agribusinesses'. These include the continuing trend for increased scale of production by expanding land areas and/or increasing the intensity of production, consolidation of businesses into contiguous properties, minimising the number of neighbours and avoiding inflated land prices due to the incursion of smaller lot, 'lifestyle' or 'hobby farms'. Fragmented land ownership and incursions of housing are identified as key threats to prospective investment in agriculture.
2. The MSS goes on to refer to the preparation of the Regional Rural Land Use Strategy 2008 co-prepared by this Council, Campaspe and Moira. It explains that this strategy provides for different categories of farming areas, being "Growth areas', Consolidation areas' and "Niche areas". Different subdivision and minimum lot sizes for dwellings are recommended for each of these areas as a response to encouraging the trends that will support future agriculture operations and avoid the threats of fragmented land ownership and interspersed housing in farming areas.
3. 'Growth' and 'consolidation' areas have minimum subdivision sizes of 40ha and a permit is required for a dwelling on all land less than 60ha in area. Within the scheme, these areas are identified by FZ-1. 'Niche' areas have a subdivision area of 40ha and a permit is required for a dwelling on all land less than 40ha in area. These areas are identified by FZ-2.
4. The objectives for agricultural land use planning are expressed (as one would expect) to support agriculture, as the major economic driver in the region, including 'the growth of existing farm businesses', new agricultural investment, as well as small scale specialised agriculture.
5. Strategies to achieve these objectives include (with our emphasis added):
   • Identify 'growth', 'consolidation' and 'niche' areas in the Farming Zone.
   • Encourage growth and expansion of existing farm businesses and new investment in 'growth' and 'consolidation' areas.
   • Encourage opportunities for smaller scale, specialised agriculture in 'niche' areas.
   • Discourage land uses and development in the Farming Zone, Schedule 1 that would compromise the future agricultural use of the land, including farm related tourism.
   • Encourage tourism in the Farm Zone, Schedule 2 that is carefully managed to prevent conflict and impact on agricultural operations.
   • Encourage value adding and new enterprises for the agricultural.
6. There was a debate regarding some ambiguity with the bullet point we have underlined above about farm related tourism, specifically whether the final words "...including farm related tourism" be read as something that is being discouraged in a Schedule 1 area as per the first section of this sentence, or something that forms part of the future agricultural use of the land as per the middle section?
7. Specific strategic planning policy about tourism is found under Clause 21.06-6 of the scheme. Strategically, the MSS recognises that tourism is 'another important industry' to the region and that regionally this is focussed on a small range of activities that includes retail of local agricultural produce and manufactured produce stemming from agriculture. Thus tourism is to be supported. However a very specific strategy is that the integration of tourist and agricultural activities will be encouraged but only where there are 'no adverse impacts on the operation of rural industries'.
8. When such strategic planning policy is considered along with the strategies for Farm Zone Schedule 1 and 2 strategies found in Clause 26.06-1 (which we have set out above) we consider that on balance, Mr Crawford's line of thinking to be the more persuasive, i.e. that 'farm related tourism' should not compromise future agricultural use of land in the FZ-1.
9. Using our preferred interpretation, we accept that these Clause 21.06 strategic policy provisions are:
   • giving a very high priority generally to encouraging agricultural uses in the municipality, a form of which is proposed here;
   • indicating that in Farming Zone 1 areas (as is the case here), where tension exists, agricultural uses are generally to be given priority over tourism uses, including those that may be farm related;
   • seeking to encourage tourist uses in Farming Zone 2 areas.
10. Where Council and the objectors sought to further their objections by reliance upon the 2008 Land Use Strategy document, we consider this line of thinking misguided. We say 'misguided' because this Strategy document does not actually contain any specific provisions overtly:
    • discouraging a use like a broiler farm in this location; or
    • encouraging and giving preference to a more tourist-related use in this location like cellar door sales or function activities at a vineyard or winery.
11. In fact, we find that strategically, the scheme seeks to encourage further investment in agriculture, especially in growth and consolidation areas, i.e. those in FZ-1, where large areas of land in one ownership are necessary to support agriculture.
12. Broiler farms are a form of agricultural with the potential for local amenity impacts, especially to air quality. As a result locating such enterprises on large properties and where housing is widely dispersed is one means of avoiding unreasonable impacts on neighbours. Minimising the number of neighbours would also assist a broiler farm's establishment. We see that such requirements fit neatly within the requirements identified under the Regional Rural Land Use Strategy and the MSS to support future agricultural investment. When considered in this light, we find that the proposed broiler farm is a sound fit with the strategic basis for and a consequence of establishing the FZ-1 in this area.
13. Further while also located on FZ-1 land, the viticultural and winery enterprises associated with Longleat Winery and Ancient River vineyard we find to be more akin to land uses within 'Niche Areas', i.e. FZ-2. While we recognise the importance of the cellar door sales and other activities at Longleat to this enterprise, and potentially those contemplated for Ancient River, strategically the Planning Scheme for this location places less importance on these activities and more importance on any agricultural enterprises being conducted on these properties and also those of the subject land.
14. Apart from the strategic aspects of land use and the potential for impact on cellar door and other tourism related activity in this locality, the objectors and Council have sought to rely on what they say is a real tension between the nearby viticultural uses and the potential amenity impacts of a broiler farm on the review site. They consider this tension justifies the refusal of the proposal. We acknowledge that some limited degree of tension is there, but:
    • do not accept (for the reasons discuss below) that any significant off-site amenity impacts will arise; and
    • agree with Mr Crawford that in fact the MSS as we have discussed above is supportive of resolving this tension in a Farming Zone 1 area generally in favour of the proposed agricultural use, rather than giving priority to a tourist-related use based around vineyard/winery activities.
15. In summary, we are satisfied that these various elements of the strategic planning framework in totality provide a strong degree of planning support for the proposal.

Would the proposal be too close to the Murchison township?

1. Pursuant to Clause 21.04-7 and the associated Murchison Framework Plan, Council expressed concern that the potential expansion of this township shown in the Framework Plan would bring it within:
   • 500 metres of the review site in relation to Murchison.
   • 800 metres of the review site with respect to Murchison East.
2. Similarly at Section 22 of Mr Pridgeon's written submission it was observed that the revised siting of the new sheds would place them within about 1800 metres of the existing land zoned Township Zone in Murchison and within 2100 metres of the existing land zoned TZ in East Murchison.
3. In relation to both the existing Township Zone area and the projected expansion areas, we find that the proposal would have no unreasonable implications in relation to its proximity to both Murchison and Murchison East. It is common ground that the updated position of the proposed sheds satisfies the 'buffer distance' requirements of the Broiler Farm Code. Even on Council's own information, the intervening distances in our view are substantial and are well in excess of the minimum buffer distances established under the code. These distances have been adopted to avoid or minimise adverse impacts on the amenity of sensitive uses, most particularly residential amenity.[6]

Would the proposal have any unacceptable external amenity impacts, notably in relation to 'odours'?

1. Mr Black, the Council and submissions for other objectors raise concerns about the impact of odours on the amenity of farm homes in the area. Their submissions highlight that there are ten farm houses within 680m and 1610m of the proposed sheds. Mr Black highlights that there are already some impacts, largely tolerable because of their low intensity and irregularity, from a nearby broiler farm and piggery. However he holds concerns that the cumulative impact of this proposal as well as a recently approved but yet to be built broiler farm to the east of his property with these other existing farms will impact his home and that of his mother's.
2. The Broiler Farm Code addresses the potential for odour and other air quality impacts from routine operations and upset conditions by the application of a separation distance. This is the distance from the nearest external edge of a new (or existing) broiler shed. The Code highlights that:

The greater the separation distance and the boundary setback, the lower the probability of offensive odour and dust adversely impacting the surrounding community.

1. The separation distance is also used to assess the classification of the farm and hence the level of assessment and risk that a new farm may pose.
2. This proposal, with a capacity for 320,000 birds, has a calculated separation distance requirement of 608m. Because of this size and because the separation distance is not fully contained within the boundary of the subject property, the broiler farm is a Class B farm. Applications for Class B farms are not required to perform an Odour Environmental Risk Assessment. Instead, odour and other air quality / amenity risks are to be assessed against the requirements of Element 1 of the six best practice elements set out under section 6 of the Broiler Farm Code. Each of these elements establishes an objective, standards that are required to meet the relevant objective and measures that are designed to achieve compliance with the relevant standards. If all measures are incorporated into the proposed design and operation of the broiler farm, then the proposal is deemed to have met the relevant standard. If all standards are met, the proposal is deemed to have met the relevant objective.
3. Mr Crawford submits that it is not the role of a Tribunal to look behind a measure, standard or objective. The Broiler Farm Code, having been incorporated into the scheme, sets the relevant parameters that a Responsible Authority and a Tribunal must apply in assessing a broiler farm application.
4. We agree that it is not our role to apply some different measure, standard or objective in this application, for the reasons expressed by Mr Crawford. In other words, it is inappropriate for the Tribunal to effectively 'double-guess' the process for applicants to satisfy the Code's requirements, as explained two paragraphs above.
5. The objectors and Council say that 134th Larena should conduct an odour ERA to properly assess and address odour risks. However if this proposal applies all relevant measures to meet the various amenity standards and all amenity standards are met, then it follows that the relevant amenity objective will be met and no Odour ERA is required.
6. Element 1 of the best practice elements deals with the size, location and siting of broiler farms. The objective is to ensure that all aspects of the farm's design and operation will, amongst other outcomes, minimise amenity risks from odour and other air quality impacts.
7. Standard E1 S1 addresses these amenity risks, with seven measures set out to achieve this standard if incorporated into the proposal. These measures establish various set back and separation distances for sensitive land uses from sheds, litter stockpiles, compost piles and litter spreading areas. While this proposal does not include litter composting and spreading it does include the composting of dead bird, which is conducted using some litter.
8. In respect to all proposed operations proposed by the Applicant here, we accept that all setback and separation measures are met.
9. Further, measure E1 M1.3 requires that prevailing meteorological conditions and topographical features are taken into account when determining the adequacy of separation distances to nearby sensitive uses as determined under the code. This measure is to address what are described as limited site specific circumstances where such conditions may mean the calculated separation distance is inadequate.
10. To address this measure, 134th Larena commissioned an assessment of prevailing meteorological conditions and topographic features by the firm GHD Pty Ltd. Mr Pollock was the author of this assessment and was called to give expert evidence about it.
11. From Mr Pollock's oral and written statement of evidence, we understand that the movement of odour (and other air quality parameters such as dust and noise) may be influenced by prevailing winds and air stability conditions. At the site, prevailing winds are influenced in turn by the passage of weather systems (i.e. high and low pressure cells, fronts etc), seasonal conditions and by the broad scale topography of the wider Goulburn River valley. These conditions combine to produce a trend for dominant winds from the south-southwest and south-west sectors (44% of the time) with a secondary trend for winds from the northeast and north-northeast sectors. These dominant winds essentially parallel the axis of the Goulburn valley, with the southerly sector winds reflecting air drainage patterns off the northern face of the Great Dividing Range. To a large extent, these prevailing winds also correspond to the light wind conditions under stable atmospheric conditions that are the least conducive to dispersion of odours. As such these winds present the greater risk for more distant movement of odour.
12. When these factors are taken into account in a numerical model, Mr Pollock in his evidence produces modified separation distances. Mr Pollock performed such calculations for the unmodified location of the broiler sheds. When plotted, these modified separation distances were found to achieve the same level of amenity protection as applying the separation distances calculated under Formula 1 of the Code for all but one dwelling. This dwelling was Mrs Black's which lies to the east of the broiler farm. As a result of this assessment, the proposed broiler farm sheds pad was moved 150m to the west, to provide the necessary separation distance. Hence the amended location of the sheds achieves the accepted level of protection from amenity risks required by the Broiler Farm Code.
13. A good deal of time was spent examining Mr Pollock's assessment, with a high level of scrutiny being applied by Ms Hick's cross examination about the influence of meteorological data and the influence of various topographic features. Mr Pollock's responses to this examination provides us with confidence that his assessment has taken into account the necessary topographical features and meteorological conditions that influence the migration and dispersion of odour (and other air quality parameters). We accept his evidence that minor variations in the river's course and topography (such as local depressions and the like) are micro features that do not influence the broad scale wind patterns and atmospheric stability that will drive air borne dispersion of odour.
14. We conclude from this evidence that the relocation of the sheds 150m to the west has been a well founded modification to the proposal. Importantly the amended scheme achieves the level or protection from the risks of odour impact sought under the Code for the neighbouring dwellings. As Mr Pollock's evidence also set out, this does not mean that odours will never be smelt at these locations, but that the strength and incidences will not amount to levels that will be intolerable or unreasonably disturbing to amenity.
15. It follows that in finding that the proposal has satisfactorily address all seven measures designed to address the standard for amenity protection, the risk of amenity impacts is satisfactorily minimised in accordance with Objective 1 of the Broiler Farm Code.

1. Four of the local landholders objecting to the proposal own/operate vineyards on properties relatively close to the subject land. One of these objectors, Mr Vazzoler gave evidence about his operations at Longleat, located approximately 1.2km to the west of the proposed broiler shed location. Mr Vazzoler sought advice about the risk of impacts to his vineyard and winery business from the Australian Wine Research Institute. This advice, prepared by a senior oenologist[7] draws on a number of case studies from overseas and Australia about the tainting of wine and impacts on grape vines from dust, bio-aerosols, bacteria, fungi and chemical compounds. This advice concludes that as:

...the sheds ....for the broiler farm will contain a large number of exhaust fans, it is likely that possible taint compounds and dust bioaerosols with the potential to negatively affect grape vines will be emitted from the broiler farm if the proposal goes ahead. Depending on the concentrations of the detremental [sic] components emitted and the prevailing atmospheric conditions, there could be potential for those compounds to aerially contaminate the vineyard which is only a few hundred metres away from the proposed broiler farm site.

1. Mr Vazzoler and others rely on this advice to support their concerns that the proposed broiler farm will adversely affect their agricultural enterprises.
2. Mr Vazzoler also expresses a concern that the industrial-like nature of the broiler farm will affect the perception of visitors and potential overseas traders looking for 'clean' produce. He maintains that the open, soil based agricultural activity and rural nature of the area contributes to a 'clean and green' image for his and other local produce.
3. While we understand the basis of these concerns, we are not persuaded that the risk or more precisely the perception of risks to vineyard operations from tainting of wines is sufficiently demonstrated for us to find against this proposal. The advice from the Wine Research Institute is largely one that draws general inferences from specific cases and provides somewhat qualified levels of risk. It also makes assumptions as to the proximity of the broiler sheds to the vineyards and wineries that is not correct.
4. We agree with Mr Crawford that the inability to further question, clarify and examine the advice received by Mr Vazzoler leaves some question as to the weight to be given to this advice. This is the more so given the qualified nature and assumptions on which the conclusion about risk are based.
5. In considering the level of risk, we note that the advice highlights that the risks are dependent in part on prevailing meteorological conditions. If we were to extend Mr Pollock's evidence to this issue and the influence of prevailing meteorological conditions, his assessment indicates that the winds and air drainage directs airflows away from the two nearest vineyards, being Mr Vazzoler's to the east and Ancient River to the immediate north. This must as a matter of course lessen any risk, if one exists, as would the fact that there will be a reasonable level of separation of more than a few hundred metres between the vineyards and the broiler farm sheds.
6. We do not dismiss altogether the risks and concerns expressed by Mr Vazzoler and Mr Martin. We understand, as was demonstrated in bushfire events in Victoria and as demonstrated by case histories in the advice of the Wine Research Institute, that wine can be tainted by extraneous chemical or bioaerosols.
7. That said, Mr Crawford's tabling of numerous examples from the Mornington Peninsula of broiler farms located far closer to vineyards and wineries than what is proposed here and a specific lack of examples of tainting from broiler farms in Victoria suggests to us that the two agricultural uses here can co-exist.
8. On balance, we find the case against this proposal on the basis of risks to the nearby vineyards and wineries has not be substantiated.
9. In terms of the impact on perceptions of visitors and buyers, we refer to our earlier reasons that as a land use, a broiler farm is a legitimate agricultural activity that can be carried out in a Farming Zone. We have found above that in this instance the proposal is an activity that fits strategically with the objectives of Greater Shepparton's Schedule 1 of that zone and the Regional Rural Land Use study that underpins this Schedule. In any event we also consider that the objectors' concern about the proposal causing 'negative perceptions for visitors to this area' will be ameliorated by the proposed landscaping and the distances from the closest public view points, including from the highway which is the main transport corridor to the area. In relation to Mr Vazzoler's winery, we note that from his cellar sales centre, the intervening river landscape screens views of the where the new broiler farm would be located.

Are the 'water drainage' aspects of the proposal acceptable?

1. The objective of element 2 of the Broiler Farm Code is to ensure the design and construction of the farm minimises the risk of adverse amenity and environmental impacts. A number of standards are established to achieve this objective and address amongst other matters, the design and construction of the farm to minimise risks to water quality. These standards address leaching from shed floors and surrounding areas, avoiding adverse impacts to waterways by providing adequate separation of sheds and other operational areas (or by other approved measures) and managing stormwater to prevent contamination of surface water and groundwater.
2. The objectors are critical of the amended plans because the shed site is located over an area that was to form the drainage for the farm. A revised scheme under the amended plans saw a dam located within a former drainage line being proposed to contain stormwater. They are also critical of the plans because they fail to show bunding and other details of the proposed stormwater system, such as the dam capacity.
3. Concerns were also raised by the Tribunal following the site inspection about the proposed relocation of a stormwater detention dam to the south-west of the sheds, a proposal to avoid the location of the dam within a drainage line.
4. The applicant now puts forward a drainage scheme that would located the stormwater retention dam to the north of the sheds. Plans also show how the grades of the shed platform, stormwater swales and earth bunds will be used to collect and direct stormwater from within the farm shed pad into the dam, while diverting overland flow from other areas of the farm around the shed pad.
5. These features are consistent with the measures E2 M5.1, M5.2, M5.3and M5.6. In fact the dam is to be designed to contain the volume equivalent to a 1 in 100 year stormwater event, as opposed to the standard of M5.6 for a 1 in 10 year storm event.
6. We find that the system is satisfactory when having regard to the above measures and the proposed permit conditions of Goulburn Murray Water, the relevant referral authority.
7. We also observe that the shed floors, apron areas and the dam are all proposed to be lined either by clay or concrete, in the case of the shed floors and aprons. These features will minimise the risk of leaching and seepage to groundwater. Notwithstanding Mr Black's observations about the permeable nature of the soil in the area, the proponent will be required to comply with these design elements, including the sealing of the dam.
8. We are satisfied that the separation distances from the Goulburn River in combination with the design elements for stormwater collection and diversion meet the standards of the Broiler Farm Code and hence achieve the objective of avoiding environmental impacts, including those to water.

1. For the reasons set out above, we have made orders directing that a permit issue, subject to the final version of the permit conditions set out in Appendix A. For the removal of any doubt, it is appropriate that we make some closing comments about four final points.
2. First, we accept that the updated proposed Environment Management Plan is a substantial improvement on the original document and is acceptable. Whilst the situation where this updated document properly only came to light at the hearing was not ideal, we are satisfied that the hearing process still allowed all parties a reasonable opportunity to review and comment on the updated EMP.
3. Second, we note that the final Council grounds of refusal was "The overwhelming community response is opposed to the proposed broiler farm". This is in the context of the proposal attracting 21 objections[8].
4. On the one hand, we are mindful that the relevant statutory amendments introduced on 28 October 2013 have strengthened the level of consideration to be given to the social and economic impacts in the planning assessment of any proposal. Section 25 of the Council written submission usefully outlines same. Our findings set out above have been made taking this revised position into account.
5. On the other hand, turning to the facts in question here, there were (excluding the relevant petition) 21 objections to the proposal. This is in the context of the 2011 ABS data indicating that Murchison as at 2011 had an adult population of 951 persons[9]. It is clear that this level of opposition in this proceeding is nothing close to that which occasionally arises in particularly contentious planning proceedings before the Tribunal, where extremely large numbers of objectors who have lodged Statement of Grounds and are actively involved in the hearing process. In any case, we rely on:
   • the recent Supreme Court decision of Stonnington City Council v Lend Lease Apartments (Armadale) Pty Ltd [2013] VSC 505, which has clarified that (in the absence of more unusual circumstances) "...it is insufficient to merely assert that any particular number of objections must be taken into account on the question of significant social effects"[10]. Similarly at paragraph 45 the Court stated that "Mere evidence of opposition by a section of the public is not, in and of itself, evidence of social impact or social effect". The Court highlighted that objections have to point to some real and meaningful impact and the decision of the Council and / or Tribunal has to respond to the issues on their merit.
   • The fact that the proposal (assuming it goes ahead) will have the social and economic benefits of generating initial construction employment, then longer term 'supervision employment' and the flow-on demand for contracting and transport services. It seems reasonable to assume that this in turn will create some additional demand for the businesses operating in Murchison and Murchison East.
6. Third, during her main submissions, Ms Hicks in passing queried whether the buffer zone requirements of the 2009 Broiler Code should operate with respect to the individual titles of the neighbouring land. This was contested by Mr Crawford, who argued that it is now accepted case law that (where relevant neighbours own contiguous land titles) the 'buffer zone' requirements of the Code apply to the overall property holdings of the neighbours. This was conceded by Ms Hicks by the end of the hearing.
7. Finally, we confirm that the ultimate version of the permit conditions set out in the Appendix to this decision is based upon a hard copy of track-changed updated permit conditions provided to us on the final hearing day, together with further potential drafting changes to same that were discussed at the end of the hearing[11]. We are certain this is the case because each of us dated and hand-amended our hard copy of the track-changed permit conditions as part of this discussion at the very end of the hearing. When in the course of preparing this decision we asked for an electronic copy of the track-changed conditions discussed at the end of the hearing, we were surprised at the apparent confusion expressed by the advocates about which set of draft conditions we had requested[12]. This has resulted in considerable extra delay and drafting effort for the Tribunal - a situation we would not want to see repeated.

The use and development of the land for a 320,000 bird broiler farm and the alteration to an access onto a Road Zone 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 will then form part of the permit. The plans must be drawn to scale with dimensions and a minimum of two copies (or as specified) must be provided. Such plan must be generally in accordance with the revised plans provided under cover of the TP Legal letter to VCAT dated 16 December 2013 but modified to show:

1. A landscape buffer of at least 10m width around the sheds which must be no closer than 20 metres to the nearest shed;
2. A setback of at least 30 metres for the gate on the access road to the property (to ensure ample off-road standing for articulated vehicles);

1. The proposed chemical storage shed to have an impermeable concrete base and appropriate bunding to avoid contaminated runoff;

1. The location and orientation of floodlighting and/or security lighting;
2. An amended EMP in accordance with condition 7;
3. Bunding round the shed complex;
4. A stormwater retention basin to collect and retain water from within the bunded area of the complex, generally in accordance with the Revision E concept plan tabled on the final day of the VCAT P1881/2013 hearing and as may be amended to meet with the written satisfaction of Goulburn Murray Water and/or the Responsible Authority;
5. No change to the existing dam in the south-east corner of the site or the drainage channel leading to it, except any consequential changes associated with the bunded area and landscaping.
6. Details of the compost pad, including dimensioned plan and elevations, materials to be used to construct the pad and the stormwater drainage proposed for the pad.
7. Deletion of any references to CA 164A, Parish of Dargalong.

Before the development starts, a drainage plan with computations prepared by a suitably qualified person 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 the permit. The plans must be drawn to scale with dimensions and a minimum of two copies must be provided. The plans must show:

1. The capacity of the retention dam to retain run-off from a one-in-hundred-year storm.

Before the use begins all drainage works required by the drainage plan must completed to the satisfaction of the responsible authority

The use and/or development as shown on the endorsed plans must not be altered without the written consent of the responsible authority.

All activities associated with the construction of the development permitted by this permit must be carried out to the satisfaction of the Responsible Authority and all care must be taken to minimise the effect of such activities on the amenity of the locality, including:

1. Avoiding the transport of mud onto roads;
2. Minimising the generation of dust during earthworks or vehicles accessing site;

1. The retention of all silt and sediment on the site during the construction phase, in accordance with the sediment control principles outlined in 'Construction Techniques for Sediment Pollution Control (EPA, 1991)' and;

Before the use begins, Lot 1 on TP836805, Lot 1 on TP3925686 and CA113 must be consolidated into one lot.

1. Prior to the commencement of the 'use' permitted by this permit, an amended Environmental Management Plan (EMP) must be submitted to the Responsible Authority. This EMP must be generally in accordance with the EMP dated April 2013 prepared by Land Management Surveys to the satisfaction of, and approved by the Responsible Authority and once approved will then form part of the permit.
2. The EMP must be modified to show Compliance with the model EMP under the Code and Standard E6 S1 of the Code including but not limited to:
   • Daily collection of dead birds from the broiler sheds.
   • Details about dead bird composting including ameliorative actions to address any impacts arising from this activity; and
   • Storage and use of litter held on site for the purposes of dead bird composting.

7 Environmental Management Plan (EMP) - Audits and Reviews

1. Site performance inspections, site audits and reviews of the EMP must be undertaken in accordance with the Endorsed EMP. Any revision to the EMP must be submitted to and be to the satisfaction of the responsible authority. When approved, the revised EMP shall be endorsed and then form part of this permit.
2. The use must be undertaken in accordance with the most current version of the endorsed EMP.

1. Twelve months after the use hereby permitted has commenced, the Permit Holder must commission a suitably experienced accredited auditor to undertake a Total Farm Audit to assess compliance with the approved EMP and Permit Conditions. The permit holder must provide to the Responsible Authority the Total Farm Audit report within four weeks of its receipt together with an action plan that addresses any areas of non-compliance.

1. Within four weeks of receipt of a report on a Routine Audit conducted in accordance with Section 8 of the Code, the permit holder shall forward a copy of that report to the Responsible Authority. The report must be accompanied with an action plan that sets out how the operations and EMP will be modified to address any areas of non-compliance identified in the Routine Audit report. 2. Any corrective actions set out in an action plan must be implemented to the satisfaction of the Responsible Authority.

1. Spent litter and associated waste must be removed from the subject land in accordance with the endorsed EMP and may not be stockpiled, composted (except as provided for in the approved EMP) or distributed on or over the subject land.
2. Dead birds must not be incinerated or buried onsite, except in an emergency situation and with the approval of Council, the Environment Protection Agency and any other relevant authority including the Chief Veterinary Officer (Department of Primary Industries).

1. Chemicals must be stored inside at all times when not in use.

1. All goods and materials must be stored in accordance with the endorsed EMP and in all cases be out of view or stored to the satisfaction of the Responsible Authority so as not to be unsightly when viewed from nearby roads or land in other occupation.
2. The poultry sheds and all feed stores must be vermin and 'wild bird proof' to the satisfaction of the Responsible Authority.

Prior to the use of the land commencing the sheds use for the keeping of broilers, must be sealed with concrete floors to the satisfaction of the Responsible Authority.

The use and/or development of the land must not unreasonably adversely affect the amenity of the area, by way of:

1. processes carried on the land;
2. the transportation of materials, goods or commodities to or from the land;

1. the appearance of any buildings, works or materials;

1. the emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit, or oil; or
2. the presence of vermin.

If the Responsible Authority determines that the amenity of nearby residents is adversely affected by the emission of an unreasonable level of odour from the subject land, the permit holder must take such action as is required to prevent those emissions to the satisfaction of the Responsible Authority. This may include but is not limited to adjusting stocking density in the sheds, removing litter immediately, or any other actions reasonably required to rectify the emission of offensive odour.

Before occupation external lighting must be designed, baffled and located so as to prevent any unreasonable adverse effect on adjoining land to the satisfaction of the responsible authority.

Noise levels emanating from the premises must not exceed those required to be met under State Environment Protection Policy Noise from Industry in Regional Victoria (NIRV).

Before the use begins all internal access roads must be surfaced with crushed rock, formed, finished and drained to the satisfaction of the Responsible Authority.

Prior to the use of the land commencing (but subject to any extension of time permitted in writing by the responsible authority) all trees and shrubs included on the endorsed landscaping plan must be planted and must thereafter be maintained in a healthy condition to the satisfaction of the Responsible authority.

Any dead or diseased trees must be replaced to the satisfaction of the responsible authority.

Prior to the commencement of works for the proposed amenities block the owner shall lodge with the Council an application to Install a Septic Tank System in accordance with the Code of Practice - Onsite Wastewater Management, Publication 891.1, September 2008.

The application to install a Septic Tank System shall include:

1. The application form provided by the Council completed, signed and dated by the owner.
2. A site plan indicating the location of the effluent disposal area.

1. The design of the effluent disposal system including instructions for installation and working drawings.

(a) The proposed access from the subject land to the Goulburn Valley Highway shall be upgraded in accordance with the Guidelines for Truck Access To Rural Properties (Type B) as shown on the attached drawing (Drawing No. 720259A), including the provision of culvert and driveable endwalls, as per attached drawing SD 1991 A.

(b) Driveway must be maintained in a fit and proper state so as not to compromise the ability of vehicles to enter and exit the site in a safe manner or compromise operational efficiency of the road or public safety (eg. by spilling gravel onto the roadway).

(c) Prior to the commencement of the use hereby approved, the access lanes, driveways, crossovers and associated works must be provided and available for use and be:

(d) Formed to such levels and drained so that they can be used in accordance with the plan.

(e) Treated with an all-weather seal or some other durable surface.

(f) All works associated with the above requirements are to be completed at no cost to VicRoads and the road reserve must be left in a neat and tidy condition.

The crossover and driveway are to be constructed to the satisfaction of the Roads Corporation prior to the commencement of the use hereby approved.

1. Construction must follow sediment control principles outlined in 'Construction Techniques for Sediment Pollution Control' (EPA, 1991).
2. Buildings and sheds must be located at least 100 metres from any waterway.

1. Any effluent or chemical storage areas must be bunded following the principles and guidelines outlined in Bunding Guidelines (EPA Publication #347, 1992).

1. All catchment runoff must be diverted around the broiler shed sites and redirected to its natural flow path downstream of the site.
2. The shed complex must be bunded.
3. Clean stormwater collection areas must be separated from areas that may be affected by broiler farm wastes.
4. The stormwater retention basin must be appropriately sized through a water balance to cater for roof runoff, hardstand areas, average annual rainfall (based on Tatura or Murchison Bureau of Meteorology data) and 1 in 100 year rain events.
5. Any wastewater discharged to land must be located at least 100 metres from any waterway.
6. The wastewater disposal area must be located in accordance with the current EPA Code of Practice and the buffer distances contained therein.
7. The wastewater disposal area must be kept free of stock, buildings, driveways and service trenching and must be planted with appropriate vegetation to maximise its performance. Overland stormwater flow must be diverted around the disposal field. A reserve wastewater disposal field of equivalent size to the primary field must be provided for use in the event that the primary field requires resting or has failed.

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

1. The development is not started within two (2) years of the date of this permit;
2. The development is not completed within four (4) years of the date of this permit;

1. The use is not commenced within four (4) years of the date of this permit.

The Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires or otherwise in accordance with Section 69 of the Planning and Environment Act 1987.

[1] Section 2 of the Council written submission indicates that if CA 164A was included in the application land, its combined area is 176 hectares. However by consent the Tribunal ruled during the hearing that CA 164A was removed from the application land, noting that the proposal is a prohibited use in CA 164A. No updated 'total area' figure was provided to us.

[2] Although the Council written submission uses a higher figure for this maximum height, we prefer to utilise the relevant height nominated at section 3 of Mr D'Amico's planning report, which is consistent with the height figure actually discussed by the parties during the hearing.

[3] Although Mr Pridgeon initially submitted that this figure was much higher, by the end of the hearing he conceded this was a mistake and that 8-10 hectares was the likely total floor area.

[4] With the northern end of each shed off-set slightly further to the west.

[5] It is also a requirement of Clause 35.07-1. A broiler farm that does not comply with the Broiler Farm Code is Section 3 - Prohibited land use.

[6] See section 4 of the Broiler Farm Code of Practice, 2009 and the objective of Element 1 and associated standard E1 S1, Amenity Protection.

[7] An oneologist being a specialist in the science and study of winemaking and wine, excluding the growing and harvesting of vines and grapes.

[8] See paragraph 25.4 of the Council written submission. While we note Council's advice that there was an associated petition that attracted over 100 signatories, a petition is much more informal compared to a signed Statement of Grounds sent to the Council and the Tribunal, and hence we can give this petition little weight. We also note that no petition documentation was provided by Council at the hearing and that the Council presentation only referred to it in passing.

[9] See paragraph 101 of Mr Crawford's written submission.

[10] See paragraph 68 of that decision.

[11] Where certain draft permit conditions remained contentious at the end of this discussion, we have exercised our own discretion regarding same.

[12] We would normally have expected the advocates to have similarly hand-amended their hard copy of the updated permit conditions discussed at the end of the hearing.