Big Country Australia Pty Ltd and Shire of Serpentine-Jarrahdale [2006] WASAT 10 (20 January 2006)

Big Country Australia Pty Ltd and Shire of Serpentine-Jarrahdale [2006] WASAT 10 (20 January 2006) - WASAT 2006 case summary — Zoe

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1 Big Country Australia Pty Ltd sought review of the Shire of SerpentineJarrahdale's refusal of development approval for a 16 shed broiler poultry farm on rural land in Serpentine. The principal issues for consideration were odour, noise, location of the site outside the designated Poultry Farm Special Control Area and loss of native vegetation.

2 The Tribunal determined that the application warranted conditional approval. Although the development will have impacts on properties in the vicinity by reason of odour and noise generation, these impacts are reasonable in the context of the zoning and planning controls which regulate development of the site and of adjoining and adjacent properties and the pattern of land uses in the vicinity which include four poultry farms and a piggery.

3 Although the Tribunal was satisfied that the development will comply with noise regulations, it considered that the scale and intensity of the development and the requirement for night-time catching warranted additional noise mitigation. The Tribunal, therefore, imposed a condition which requires the construction of 4.0 metre high vegetated earthen bunds on the eastern and western sides of the sheds. It also required the construction of 4.0 metre high earthen bunds or windbreak walls to disperse odours from fans and annual monitoring of odour emissions and noise to ensure that the impacts of the operation are no greater than shown on the evidence. The annual monitoring will be conducted at appropriate times by suitably qualified engineers and their reports provided to the Shire and made publicly available.

4 Although the development is located adjacent to rather than within the Special Control Area, the Tribunal was satisfied that approval of the development is not contrary to orderly and proper planning of the locality. The planning scheme encourages poultry farm development within the Special Control Area, but does not discourage such development outside that area, subject to merit.

5 Finally, the Tribunal considered that the extent of clearing required for the development was acceptable and was compensated for by significant revegetation at site boundaries.

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6 These proceedings involve an application brought by Big Country Australia Pty Ltd pursuant to s 8A(1) of the Town Planning and Development Act 1928 (WA) (TPD Act) for review of the decision of the Shire of SerpentineJarrahdale (Shire) to refuse a development application for a broiler, that is meat production, poultry farm at lot 368 Henderson Road, Serpentine (site). The site is located approximately 48 kilometres south of the city of Perth and approximately 6 kilometres southwest of the town of Serpentine. It occupies a corner position and is bounded by Henderson Road to the south, Hopelands Road to the west and rural properties used for grazing to the north and east.

7 The proposed poultry farm would comprise 16 "controlled environment" growing sheds located in the northern part of the site, surrounded by a loop road accessed via a driveway from Hopelands Road, a caretaker's dwelling fronting Hopelands Road and service buildings including a sawdust storage shed, a biosecurity facility and a coolroom.

8 The development application was advertised and was the subject of 23 objections. At its meeting on 3 June 2005, the Shire considered a report from its senior planner recommending the grant of conditional approval to "stage 1" of the development comprising six poultry sheds and associated facilities. The Shire refused the application, essentially because it was not satisfied that the development would not have a detrimental impact on the amenity of the locality by reason of odour (including cumulative impact), noise and dust and because it would result in the clearing of remnant native vegetation.

9 In these reasons, the Tribunal will at first describe the site and locality, the proposed development and the statutory planning context. It will then identify and address the principal issues which arise for consideration in the review. Finally, the Tribunal will address certain disputed draft conditions of approval.

10 For reasons set out below, the Tribunal considers that the application warrants conditional approval. In particular, although the development will have impacts on properties in the vicinity in consequence of odour and noise generation, these impacts are reasonable in the context of the zoning and planning controls which regulate development of the site and of adjoining and adjacent properties and the pattern of surrounding land uses.

[14]

15 The 16 proposed poultry growing sheds would run east-west in the northern part of the site. The northernmost shed would be set back 246.76 metres from the northern boundary. The southernmost shed would be set back approximately 515 metres from the southern boundary. The sheds would be set back 185.35 metres from the western (Hopelands Road) boundary and 100 metres from the eastern boundary. The service buildings are proposed to be located to the west of the poultry sheds with a minimum setback to Hopelands Road of 125 metres. The caretaker's dwelling is also proposed in this area with a setback of 50 metres from Hopelands Road. Revegetation is proposed along the northern side of the drainage channel and adjoining or adjacent to the western, northern and eastern boundaries of the site north of the drainage channel as well as in a central part of the site between poultry sheds 1 8 and 9 16. The existing dwelling fronting Henderson Road is proposed to be retained.

16 The poultry sheds have dimensions of approximately 18 metres by 158 metres. Construction involves concrete floors, concrete walls 400 millimetres above floor level and colorbond insulated metal walls and roofing. Each shed would contain multiple fans at its eastern end and one fan at its western end. The western fan and one of the eastern fans are "duty" or minimum ventilation fans used in a pulsed mode when birds are less than 14 days old and at night when only low ventilation rates are required. When cooling is necessary to maintain optimal shed temperature, such as during daytime, warm nights (greater than 22 degrees Celsius) and when chickens are older and larger and hence generate their own heat, the sheds operate in "wind tunnel" mode. In this mode, air is drawn through a number of fans at the eastern end of the shed, thereby cooling the birds through increased wind velocity.

17 Each shed would have a computer controlled shed management system comprising automated ventilation system, gas heating, temperature, humidity and pressure sensors, controlled lighting and automatic feed and water supply systems.

18 Broiler growing is conducted in eight week cycles approximately six times per year. Prior to the placement of the chicks, the sheds are prepared by covering shed floors with a 100 150 millimetre layer of dry litter such as sawdust or wood shavings. Each shed would be stocked with approximately 60 700 dayold chicks. During the first four weeks of the cycle, birds grow from approximately 40 grams to approximately 1.3 kilograms. During this period, shed temperature is reduced from an initial 32 degrees Celsius to 21 degrees Celsius.

19 In the fifth week of the cycle, the first "break in" or harvest occurs. Chicken catchers remove approximately 50% of the largest birds for slaughter offsite.

20 During the next 3.5 weeks of the cycle, the remaining birds grow from approximately 1.3 kilograms to 2.7 kilograms while shed temperature is maintained at or near a constant 21 degrees Celsius. During the seventh and eighth weeks of the cycle, the remaining birds are harvested. Immediately following harvest, the sheds are cleaned out of litter material, washed and disinfected in preparation for the next batch. The litter is cleaned out by a bobcat or similar small loader. It is then removed from the site by covered trucks.

21 Although there was some discussion during the hearing as to whether the 16 sheds would be operated in different phases, Big Country ultimately accepted a proposed condition that there be no staggering of growth cycles at the farm. While it would be expected that a development of the scale proposed would not be stocked with day-old chicks in a single day, the applicant accepted that all 16 poultry sheds would operate in a single phase and that the harvest and cleanout at the end of each cycle would be completed in all 16 sheds within a single period of 72 hours.

22 At full production, a total of approximately 971 200 dayold chicks would be placed at the farm at the commencement of each cycle. The assumed mortality rate is 4.5%. Consequently, the farm would produce approximately 927 500 birds each cycle.

23 Poultry farming is an intensive form of rural production. Moreover, in contrast to most forms of rural production, harvesting of chickens takes place at night to minimise the chickens' distress.

24 At full production, the farm would generate approximately 316 truck trips to and from the site each cycle, including refrigerated trucks (delivering the chicks, one truck per shed), 20 tonne bulk gas trucks, 20 tonne feed delivery trucks, 8 tonne dead bird trucks, 20 tonne semi trucks (bird catching) and 40 tonne trucks and trailers (clean sawdust and removal of litter). However, approximately 54% of truck movements in any cycle would occur during the seventh and eighth weeks and approximately 10% would occur during the first week. Therefore, almost twothirds of all truck movements would occur during three of the eight weeks of a cycle.

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37 Mr Christopher Gwynne, an environmental engineer with experience in agricultural air quality impact assessment, undertook a detailed air quality assessment of the proposed development in relation to both odour and dust. Mr Troy Powell, who is also an environmental engineer with experience in air quality assessment, was commissioned by the Shire to review Mr Gwynne's report. At the Tribunal's direction, Mr Gwynne and Mr Powell conferred prior to the hearing and prepared a joint statement of matters agreed, matters not agreed and the reasons for disagreement.

38 The air quality experts agreed that the odour modelling results in Mr Gwynne's report are reliable and provide the Tribunal with a reliable basis for making findings as to the likely true odour impact of the development, provided that the whole development operates in a single phase, not giving consideration to cumulative impacts. However, the experts disagreed as to whether the stated odour impact on affected rural dwellings is acceptable.

39 The proviso to the experts' agreement that the modelling is accurate, namely that the development must operate in a single phase, has significance in terms of whether shed cleanout odours should be specifically modelled. Mr Gwynne stated in his report that although anecdotally shed cleanout activities are associated with potentially high odour emission rates, the modelling did not make specific provision for air emission during cleanout, because this would occur only six times a year for only a few hours at a time, the modelling is otherwise conservative and previous modelling by Pollock and Friebel has indicated that inclusion of an allowance for shed cleanout in modelling did not discernibly affect odour contours. Mr Powell was "reasonably satisfied" with the work of Pollock and Friebel. However, if the operator were to stagger growth cycles, there would be more than six cleanouts per year and the odour increase due to cleanout "may then cease to be negligible". As noted earlier, the applicant accepted a condition limiting the development, including full operation at 16 poultry sheds, to a single phase operation. Moreover, the applicant accepted a condition that all bird catching and poultry shed cleanout operations at the end of each growing cycle must take place within a single 72 hour period.

40 The odour modelling indicates the impact of the development on the nine closest rural dwellings. Modelling was conducted using the Department of Environment supplied meteorological files for an entire year at Caversham in 1994 and at Hope Valley in 1995. These files have been verified by the Department of Environment as suitable for screening modelling for inland locations on the Swan coastal plan (Caversham) and coastal locations (Hope Valley). The modelling results for Caversham are considered representative of odour dispersion during a "poor dispersion" year whereas the results for Hope Valley are considered representative of a "good dispersion" year. Average dispersion is likely to be somewhere in between. Mr Gwynne's odour modelling did not take into account the near-field dispersion effect of 4.0 metre high earthen bunds or windbreak walls which are the subject of an agreed condition. The results of his modelling are, therefore, likely to be conservative.

41 The Odour Methodology Guideline published by the Department of Environment categorises odour strength from "very weak" to "extremely strong" on the basis of bands of odour units. "Distinct" odour strength is within the band 7/7.8 odour units (OU) 19 OU and "strong" odour strength is within the band 19/20 OU 42 OU.

42 Of the nine closest rural dwellings, four are located within the SCA and five outside the SCA. The three worst affected dwellings as a result of odour generated by the development are located within the SCA. The modelling predicts that these dwellings are likely to be exposed to odour emissions from the development exceeding 7 OU, that is "distinct" poultry odour, for minimum three minute concentrations for 2.2% of the year (193 hours, Hope Valley data) to 2.6% of the year (227 hours, Caversham data), 1.3% of the year (114 hours, Hope Valley data) to 1.7% of the year (149 hours, Caversham data) and 1.0% of the year (88 hours, Hope Valley data) to 1.5% of the year (131 hours, Caversham data), respectively. The likely maximum odour concentration for these three dwellings during part of these periods is 22 OU (Hope Valley data) to 29 OU (Caversham data), 16 OU (Hope Valley data) to 26 OU (Caversham data) and 20 OU (Hope Valley data) to 24 OU (Caversham data), respectively. This means that for part of the exposure period, these dwellings would be subject to "strong" poultry odour from the development.

43 The fourth worst affected dwelling is that located on the property immediately to the east of the site. That property would be subject to exceedance of 7 OU, that is "distinct" poultry odour, for minimum three minute concentrations for 0.1% of the year (9 hours, Hope Valley data) to 0.9% of the year (79 hours, Caversham data) and to maximum odour concentrations of 7 OU (Hope Valley data) to 24 OU (Caversham data). This means that in a poor dispersion year, this dwelling would be subject to "strong" poultry odour from the development for part of the 79 hours.

44 The remaining five closest dwellings would be subject to exceedance of 7 OU, that is "distinct" poultry odour, from the development for minimum three minute concentrations for 0.3% of the year (26 hours, Hope Valley data) to 0.8% of the year (70 hours, Caversham data) (two dwellings), 0.6% of the year (53 hours, Hope Valley data) to 0.8% of the year (70 hours, Caversham data), 0.1% of the year (9 hours, Hope Valley data) to 0.4% of the year (35 hours, Caversham data) and 0.1% of the year (9 hours, Hope Valley data) to 0.5% of the year (43 hours, Caversham data), respectively. The maximum odour concentrations from the development for these rural dwellings is 13 OU (Hope Valley data) 17 OU (Caversham data), 12 OU (Hope Valley data) 19 OU (Caversham data), 14 OU (Hope Valley data) 20 OU (Caversham data), 4 OU (Hope Valley data) 13 OU (Caversham data) and 4 OU (Hope Valley data) 18 OU (Caversham data), respectively. These dwellings would, therefore, be subject to "distinct" poultry odours from the development for the periods referred to, although the maximum odour concentration for four of these dwellings applying the Caversham (poor dispersion) data set would be in the higher part of the "distinct" odour band.

45 Mr Gwynne considered that the highest odour intensities likely to be encountered at nearby dwellings "are not inconsistent with a rural location". Mr Powell disagreed. In Mr Powell's experience, complaints are common at 4 6 OU, while widespread community complaints generally occur when odour concentrations exceed 10 OU. He considered that the affected rural dwellings "should not be disadvantaged over land zoned 'Residential'".

46 The experts agreed that, while cumulative impact should be taken into account, it is impossible on the basis of current scientific knowledge to fairly assess cumulative impact quantitatively. Mr Gwynne considered that, although the odour footprints of the four existing poultry farms and the piggery are not known in detail, their presence suggests that additional impact of the proposed farm is likely to be less significant than the impacts from the existing facilities. In particular, he considered that the odour generation potential from piggeries during activities such as effluent pond desludging is significantly higher than for a force ventilated poultry shed as piggeries do not involve "at source" dilution of odours. He also considered that the proximity of the SCA means that there would be a reasonable expectation of some impact from poultry odours.

47 Mr Powell identified two types of "cumulative" impacts. First, a property located between two odour sources will suffer cumulative impact because there is an increased likelihood of odour impact at any given time. Second, a property might be subjected to cumulative odour from two different sources at the same time. Although it would be reasonable to expect that multiple odour sources of the same nature would be additive, in some circumstances an odour greater than the sum of the individual odourant impacts can occur.

48 Mr Loris (John) Mitchell owns and resides at a similarly sized property to the site one removed to the east. The dwelling on Mr Mitchell's property is located adjacent to Henderson Road and the area around the dwelling has been carefully and attractively landscaped. Mr Mitchell resides at the property with his wife and two children. They agist generally 25 to 26 horses.

49 Mr Mitchell gave evidence that a couple of years after he purchased his property, the Sandy Brook Poultry Farm was established on the property one removed to the east. He and his family rarely suffered from smell or shed noise from that development for the first seven years. However, after modifications to the sheds, apparently to convert them from naturally ventilated to controlled environment sheds, Mr Mitchell's property has been subject to poultry odours, particularly in the evenings on an easterly breeze for three to four hours. The intensity of the smell is dependent on the growing cycle. It is much worse from mature chickens. It is worse in the summer. Mr Mitchell described the smell in the following terms:

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50 Mr Mitchell is particularly concerned that the development would result in offensive odours in the late afternoon/early evening "at a time we as a family wind down to enjoy the sunset and have our evening meal". These odours would be additional to offensive odours from Sandy Brook Farm when the wind switches from east to west.

51 Mr MJ Hardy, counsel for Big Country, contended that the preservation of the amenity of the locality is a concept which must take account of the zoning of the land, the predominant pattern of land use and the permissible nature of the proposed development. Specifically in relation to Mr Mitchell's evidence, Mr Hardy submitted that Mr Mitchell is seeking to obtain a level of protection for his amenity which would be consistent with a rural residential locality, but is not consistent with a residence in a rural locality. He submitted that the issue of cumulative impact had been adequately assessed qualitatively and that as the odour impacts from the development are capable of management, they should be deemed acceptable.

52 Mr PL Wittkuhn, counsel for the Shire, contended that, on the assumption that the modelling is (as agreed by the experts) reliable, the predicted rate and frequency of odour impacts on affected residences should be found to be unacceptable in terms of the preservation of the amenity of the locality. Furthermore, the addition of the proposed farm would greatly increase the chances that, at any given time, there would be mature (higher emitting) birds on one of the farms within the locality. The proposed development would, particularly with regard to wind direction and behaviour, widen the pattern of exposure of residences to odour.

53 The Tribunal considers that the odour impacts which would be generated by the proposed development in the locality are reasonable in the context of the zoning and planning controls which regulate development on the site and adjoining and adjacent properties and the pattern of surrounding land uses.

54 As noted earlier, cl 6.4.2 of TPS 2 requires the Tribunal to have regard to the preservation of the amenity of the locality. As Mr Hardy submitted, the practical application of this consideration must be informed by the zoning and planning controls which regulate use of the site and affected properties, the predominant pattern of land use and the permissible nature of a proposed development. Plainly, a resident of a rural dwelling in a locality where poultry farming is permissible at discretion or permitted and where approved poultry farms already exist cannot reasonably have the same expectation of residential amenity as a resident of an urban residential area or even a ruralresidential area where such development is prohibited. This is recognised by SPP 4.3 which states that "new poultry farms should be located on rural zoned land" and then seeks to minimise the potential for conflict between such development and existing or proposed residential areas or ruralresidential areas. The Tribunal does not accept Mr Powell's assessment of the acceptability of the odour impact, because it is premised on his view that rural dwellings should not be "disadvantaged" over residentially zoned dwellings. This view is inconsistent with the statutory planning framework.

55 As noted earlier, the three dwellings which would be most significantly affected in terms of odour in consequence of the development are located within the SCA. Another affected dwelling is also within that area. The Tribunal accepts the evidence of Mr Henry Dykstra, a town planner called by Big Country, that the location of a dwelling within the SCA particularly affects the level of amenity that residents of the dwelling could reasonably expect. In this regard, as noted earlier, the Shire is required to treat an application for poultry farming in the SCA as a "P" use if it satisfies the stated criteria set out in Pt X which are referred to at [31] above, in which case "the use is permitted provided it complies with the relevant standards and requirements laid down in the Scheme": cl 3.2.2 TPS 2. There is, therefore, a reasonable expectation that rural residences within the SCA will be subject to intermittent poultry odours of the nature which would be generated by the proposal.

56 The odour impacts which would be generated by the development on the five closest rural residences outside the SCA are also reasonable. Each of these properties is located either across the road from or within the proximity of the SCA. That topographical reality bears heavily on the reasonable amenity expectations of the residences in question. In particular, the same development as that proposed, but located across the road where the Shire would be required to treat it is a "P" use if the stated criteria are satisfied, would generate a similar level of odour impact. The Tribunal would consider the same development across the road as satisfying the stated criteria. In this regard, satisfaction with "the impacts of the proposed development on the local environs" must take into consideration the general and specific objectives of the SCA (see [29] [30]) and the requirement that a poultry farm incorporate controlled environment, rather than naturally ventilated, sheds. The same development across the road would, therefore, be approved.

57 Furthermore, the evidence shows that intermittent poultry and piggery smells are an established characteristic of the locality of the affected rural residences. In making this observation, the Tribunal does not say that the area is so "blighted" by intensive agricultural developments that the Shire or it "cannot properly or fairly object to another": cf City of Swan v Taylor [2005] WASCA 88 at [74]. It is certainly conceivable that a development having a more significant odour impact than the proposal in terms of exposure period and/or maximum concentration would be unacceptable in its context. However, it is significant that the development would not introduce a type of odour which does not already exist in the immediate locality. Depending on the circumstances, a poultry development may be unacceptable in an area not proximate to a special control area and in which residences are not affected at all by such smells.

58 Finally, a degree of odour amenity impact is reasonably contemplated by the zoning of the site and the sites of the affected rural residences. Clause 6.4.2 of TPS 2 requires the Shire and the Tribunal, in determining an application for planning consent, to have regard to the purpose for which the site and land in the locality is zoned. As noted earlier, the stated purpose and intent of the "Rural" zone is to "allocate land to accommodate the full range of rural pursuits and associated activities conducted in the Scheme Area". It is apparent from the list of discretionary uses capable of approval in the zone, the approved piggery and poultry uses in the vicinity of the site, and the Shire's Rural Policy Area Strategy that poultry farming falls within the "full range of rural pursuits" contemplated by the zoning.

59 It was Mr Gwynne's unchallenged evidence that "it is not possible to undertake" a rural enterprise of this nature without causing odour. Some odour impact on rural residences is reasonably contemplated by the planning controls. Of course, as discussed earlier, a poultry farm may not be appropriate in a particular case, notwithstanding that contemplation. However, the Tribunal is satisfied that this is not such a case.

60 The Tribunal recognises that the establishment of the proposed farm would increase the chance that, at any given time, there would be mature birds on one of the farms within the locality. It recognises that it is likely that the three properties between the site and Sandy Brook Farm, including the Mitchell property, would be impacted by odours from one farm when not impacted by the other and vice versa. The Tribunal also recognises that there is potential for the odour from the site to exacerbate impacts of other sites in the locality. However, the Tribunal does not consider that such "cumulative" impacts warrant the refusal of the proposed development. Such "cumulative" impacts which would occur are within the reasonable contemplation of the "Rural" zoning and the planning controls which regulate development of the site and the affected properties. For reasons discussed, some odour impact from a poultry farm on rural residences is reasonably contemplated. Moreover, neither the Scheme nor SPP 4.3 prescribes separation distances between poultry farms or the maximum number of farms, sheds or birds in any area. The Environmental Code of Practice for Poultry Farms in Western Australia (2004) states that it is best practice to maintain a separation of 1000 metres "for biosecurity reasons" (p 11). The development complies with this practice.

61 Finally, the dust modelling undertaken by Mr Gwynne indicates that the dust generated by the development would not exceed the standards prescribed by the National Environmental Protection Measure Guidelines for Ambient Air Quality published by the National Environmental Protection Council at any of the nine closest rural residences. This standard is designed for the protection of urban communities and its application is, therefore, conservative. Mr Powell considered that the dust assessment undertaken by Mr Gwynne is satisfactory.

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62 Mr Daniel Lloyd, an acoustics engineer, undertook detailed noise modelling and assessment of the proposed development. He determined that, making the conservative assumption that all fans on the eastern side are operating simultaneously and worst case meteorological conditions, the noise generated at the poultry farm would comply at all times with the Environmental Protection (Noise) Regulations 1997 (WA) (Noise Regulations) provided that a 3.2 metre high earthen bund is constructed to the west of the sheds.

63 Mr Najac Ishac, who is also an acoustics engineer, was commissioned by the Shire to review Mr Lloyd's assessment. He agreed, with one qualification, that the development would comply with the Noise Regulations. The qualification is that Mr Lloyd's noise assessment does not include an LA10 prediction for concurrent operation of fans, forklift and trucks on the site. Mr Lloyd considered the trucks were not required to be included in the LA10 assessment, because they are likely to be operating for less than 10% of the representative time period. In his opinion, "it is unfair to take a small bite within that period".

64 The acoustics experts also agreed there is potential for higher noise emissions to occur on occasions due to air break relief or impact noise from trailers. They agreed that the impact noise from trailers could be reduced by ensuring that roads on the farm are smooth.

65 Mr Ishac suggested that the earthen bund proposed by Mr Lloyd on the western side of the sheds should be matched by an earthen bund on the eastern side. He considered that such a bund at 4.0 metres in height would reduce noise by 10 to 15 decibels. Mr Lloyd considered that a bund on the eastern side would reduce noise emission by about 12 decibels but would be unnecessary, because noise generated by the operation of the development, including catching of chickens at night, would in any case comply with the Noise Regulations. He conceded, however, that night-time activities "may be just audible" inside the closest rural residences. In his submissions, Mr Hardy relied on Mr Lloyd's evidence and contended that to require a bund on the eastern side would be to "overengineer" the site.

66 The Tribunal accepts Mr Lloyd's evidence that, as truck noise is likely to be present for less than 10% of the representative time period, it is not required to be included in the LA10 assessment. This is not to say, however, that trucks do not generate any noise at all. Moreover, although it is a rural use, poultry farming has some characteristics which are unusual in a rural context. Mr Mitchell gave the following evidence which was not challenged:

[56]

71 Mr Hardy neatly summarised this evidence in opening by saying that "the SCA created an encouragement in that area, but without a concomitant discouragement outside that area".

72 The Tribunal accepts Mr Dykstra's evidence and Mr Hardy's submission. When Pt X was inserted into TPS 2, poultry farming did not become a prohibited use or even a special category of use subject to particular prescriptive or performance criteria in the "Rural" zone outside the SCA. As Mr Hardy said, the amendments created an encouragement without a concomitant discouragement. In this regard, the Shire elected to take a different path from that advocated in cl 5.6.3 of SPP 4.3, namely that where new poultry farms are included in a separate Special Use zone, they should generally be prohibited in all other zones. When questioned by the Tribunal as to why the Shire decided to neither prohibit nor impose any special requirements to obtain approval for poultry farming outside the SCA, Cr Needham stated that it was to permit existing poultry farms in the vicinity of the site to expand. However, if poultry farming had become prohibited outside the SCA, an existing poultry farm would be a "nonconforming use". Clause 4.2 of TPS 2 permits a person to extend a nonconforming use or erect, alter or extend a building used in conjunction with a nonconforming use with planning consent.

73 The Tribunal rejects the Shire's submission that a "special case" needs to be made out as to why a poultry farm should be located outside the SCA. TPS 2 does not require a "special case". Rather, it requires the Shire (and the Tribunal on review) to consider the application under the terms of the planning instrument and particularly having regard to the matters identified in cl 6.4.2. The Tribunal is satisfied that the development is acceptable in its context and is consistent with orderly and proper planning in the locality. As noted earlier, poultry farming is one of the "range of rural pursuits" contemplated by the purpose and intent of the zone. As also discussed above, the amenity impacts of the development are acceptable. Furthermore, the development complies with the objectives and policy provisions for new poultry farms stated in SPP 4.3.

[60]

80 As discussed earlier, the Tribunal is satisfied that the air quality impacts of the development are acceptable in the context of the statutory planning controls and the locality on the basis of the odour emissions modelling in Mr Gwynne's report. It is essential, therefore, that the conditions of consent require compliance with the odour emissions assumed in that report; it is not sufficient that the odour emissions not be "significantly different" to those assumed.

81 Moreover, in light of the nature and scale of the development, it is appropriate for air quality testing (or, as the experts refer to it, "ground truthing") to occur annually during the lifetime of the development. Condition 34 in the annexure to these reasons gives effect to these considerations. It requires the testing to occur during summer in the final week of a growth cycle when the birds are largest. It was Mr Mitchell's evidence that odour from Sandy Brook is greatest at these times.

82 Mr Powell and Mr Gwynne jointly consider that another draft condition proposed by the Shire, which in essence requires that maximum shed temperature from day 30 of the growing cycle be limited to 23 degrees Celsius, is not appropriate. The experts consider that the relationship between shed temperature and shed odour emission rates is not scientifically welldefined. Although temperature is a significant variable, there are many other potential reasons for variance in shed odour. Furthermore, measured shed air temperature is different to the temperature felt by birds when a shed enters "wind tunnel" mode. The effect of evaporative cooling and wind chill is not considered by the measurement of temperature alone.

83 The air quality experts suggest that "the intent of the Shire's proposed condition would be fulfilled by the ground truthing and odour assessment suggested above".

84 The Shire submits that aspects of the joint report "should not be accepted uncritically" and that the experts "misdirect[ed] themselves" when they recommended "ground truthing", because neither the Shire nor the Tribunal would be able to revisit the conditions and impose more onerous requirements. The Shire proposed an amendment to the draft condition to take into account the joint evidence in relation to wind chill.

85 The Tribunal does not accept even unanimous expert evidence "uncritically". However, the joint opinion of two qualified experts commissioned by the parties to assist the Tribunal to arrive at the correct and preferable decision is generally to be given considerable weight. Moreover, the Shire has presented no scientific evidence in support of the condition limiting shed temperature. The Tribunal agrees with the experts' suggestion that the intention of the Shire's condition would be fulfilled by ongoing monitoring and does not consider that the experts "misdirected themselves" as to "ground truthing".

86 The effect of condition 34 in the annexure to these reasons is to require odour emissions from the development to not exceed those assumed in Mr Gwynne's assessment and to require annual reporting by a qualified air quality expert to confirm whether this is the case and, if it is not, to indicate what measures or works must be undertaken to achieve compliance. If there is non-compliance, no further condition will be required to be imposed, as the developer/operator will have committed an ongoing offence and will, no doubt, seek to remedy that situation promptly. The air quality expert's annual report will indicate how that can be done. The Tribunal does not, therefore, consider that the Shire's proposed condition should be imposed.

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87 Big Country objected to draft condition 30 proposed by the Shire which requires that "reversing beepers are to be removed from all forklifts and tractors used on the property and alternative nonaudible warning measures such as flashing lights (subject to compliance with the relevant Australian Standard and any Worksafe Codes) are to be fitted to these vehicles instead". The Tribunal accepts the Shire's submission that reversing beepers are likely to be annoying, even if compliant with the Noise Regulations, and that an alternative warning measure should be fitted. As the Tribunal is aware of the possible use of "croakers" which are audible at close distances but substantially inaudible and much less annoying than beepers at greater distances, and as the intent of the condition appears to be to protect residential amenity, we have deleted the words "nonaudible" and "such as flashing lights" and inserted instead "which are nonaudible immediately adjacent to any dwelling on any adjoining or adjacent property". The condition would also permit nonaudible alternatives if compliant.

88 Condition 32(a)(i) requires the installation of an earthen bund at least 4.0 metres high between the sheds and Hopelands Road. As noted earlier, the Tribunal also considers that an earthen bund should be located on the eastern side as recommended by Mr Ishac. Big Country accepts the intent of the condition in relation to the western side, but would prefer the option of a different form of acoustic barrier. The Tribunal accepts the Shire's submission that, for aesthetic and maintenance reasons, an earthen bund (vegetated in accordance with the approved Landscape and Vegetation Management Plan see conditions 8 10) would be preferable.

89 The Tribunal also considers that annual noise monitoring should be undertaken by an acoustics engineer and provided to the Shire to ensure that the development complies with the Noise Regulations. Such a condition was not opposed by counsel. The monitoring should take place in summer at a time which includes the final week of a cycle, harvest at the end of the cycle and cleanout. It is to be expected that the sheds would operate in "wind tunnel mode" during this period. The acoustics experts agreed that, if the development exceeds the Noise Regulations, "retrofitting of noise control [of the fans] is a practical option".

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (137 paragraphs)

Big Country Australia Pty Ltd and Shire of Serpentine-Jarrahdale [2006] WASAT 10 (20 January 2006)

Legislation Cited (3)