The following overlays apply to all or part of the land:

• Environmental Significance Overlay 4;
• Environmental Significance Overlay 17;
• Environmental Significance Overlay 28; and
• Significant Landscape Overlay 3.

• Clause 35.04 - Green Wedge Zone 2 use of a dwelling; and
• Clause 34.04-4 - Buildings and works;
• Clause 42.01-2 - Buildings and works under the provisions of ESO1;
• Clause 36.04 - Road Zone Category 1 did not trigger the need for a permit as access to the land already exists.

• Clause 16.03 - Rural living and residential development;

• Clause 21.02 - Profile of the Mornington Peninsula;
• Clause 21.03-1 - The regional role of the Mornington Peninsula;
• Clause 21.04 - Mornington Peninsula Strategic Framework Plan;
• Clause 21.06 - Strategic Framework and the Peninsula Settlement Plan;
• Clause 21.09 - Planning for rural areas;
• Clause 22.03 - Dwelling density, excisions and realignments of rural areas;
• Clause 22.14 - Mornington Peninsula land units

The Victorian Code for Broiler Farms 2009, an incorporated document under the provisions of Clause 81.01.

The land is one of 11 lots located on the western side of Coolart Road. These lots were subdivided some 90 years ago and until now have been in common ownership operating as a working farm.

The land is regular and some 2.05 hectares in area. The land presently contains a shed, a dam, a row of mature Pine trees along the northern boundary and a mound along the Coolart Road frontage. The land rises from Coolart Road to the rear and also has a cross fall to the north-east. The shed on the land was approved under a permit issued by the Responsible Authority Permit No. P09/0435.

Access is by way of an existing crossover from Coolart Road.

The 11 lots of which the subject land forms one lie to the north and south of Wonderland Avenue. This section of Wonderland Avenue was recently constructed under a permit P07/1708 granted on 21 November 2007. The Tribunal was informed that the road was sealed the week before the first day of the hearing.

A further permit was granted in 2008, P08/0416 at the direction of the Tribunal for the re-subdivision of Lots 4 and 5 to allow the existing stables and tree lines to be contained within the same lot as the existing dwelling.

The surrounding area includes a mix of Rural and Rural Life style uses including broiler farms, crop raising, cattle grazing and horse adjistment.

There are five lots to the west of the subdivision containing the subject site which gain their access from Wonderland Way. These are of comparable size to the larger lots in the subdivision and three of them contain dwellings. There are a number of smaller lots further to the west on the east side of Stumpy Gully Road. The majority of these lots have been developed with a dwelling. Land directly opposite the subject site contains a broiler farm with a capacity for 190,000 birds contained within five sheds, four of which are set back 320m from the front boundary and the fifth at a minimum setback of 65m. This property is well vegetated. Lots to the north-east and south of the subdivision of which the site forms part are, aside from a number of small lot excisions, much larger.

The Tribunal was referred to a number of cases dealing with the development of a dwelling on small lots. These cases generally fell within two groups, namely the permitting of a dwelling on a small lot within the Green Wedge Zone and the location of a dwelling within the buffer separation distance of a broiler farm.

The Tribunal made an inspection of the site and surrounding area.

1. Mr Dickson, at the commencement of proceedings, requested the substitution of N & M Brown, the owners of the land, as the permit applicant. There being no objection the substitution was made under Section 64 Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998.
2. Mr Dickson drew the Tribunals attention to a fax dated two days prior to the hearing informing the parties that the proposed use of the land was extensive animal husbandry in accordance with the Mornington Peninsula Planning Scheme.
3. Extensive animal husbandry is a Section 1, as of right use, in the Green Wedge Zone Schedule 1. He informed the Tribunal that the applicant intended to breed and raise cattle on the property where the main food source would be grazing with only supplementary feeding as required. It was his contention that this had always been the intent of the applicant and that this was made clear to the other parties at various times during the lead up to the hearing.
4. The permit application was referred to VicRoads who had no objection to the use of the existing access to Coolart Road subject to a condition requiring a 2.5m wide sealed vehicle crossover.
5. The application was advertised and two objections were received both lodged by Mr David Proctor one on his own behalf and one on behalf of the Derbyshire's who own the broiler farm opposite. Council subsequently resolved that had they been in a position to do so they would have issued a notice of decision to grant a permit.

1. The Tribunal's interpretation of Council's stance in determining to grant a permit is that in the particular context of the Mornington Shire there is already a significant number of small lots scattered throughout the Green Wedge Zoned land that contain dwellings and that permitting further dwellings on the estimated 715 vacant lots within the zone would have limited impact. In Council's estimate permitting a dwelling on each lot would result in a maximum increase of 15% in the total number of dwellings in the zone. This level of increase in Council's view would be manageable.
2. Council view with respect to the potential conflict with the broiler farm operation was that there are a number of broiler farms on the Peninsula that are located in proximity to dwellings. Council's experience with the impact of these farms or dwellings led them to conclude that the additional risk associated with a further dwelling would not necessarily be a problem.
3. The issues in the appeal therefore are twofold:
   • The consistency of the proposal with policy and the Green Wedge Zone provisions;
   • The proximity of the proposal to the existing broiler farm and the potential conflict that might arise.

1. The use of land for a dwelling requires a permit under the provisions of the Green Wedge Zone. The Green Wedge Zone provisions seek to recognise, protect and conserve Green Wedge land for its agricultural, environmental, historic, landscape, recreational and tourism opportunities and stone resources. A dwelling is a Section 2, permit required, use in the zone.
2. There are a number of mandatory requirements in the Green Wedge Zone provisions, namely; only one dwelling on a lot, all weather access, reticulated water or alternative potable supply including adequate storage for domestic and fire fighting purposes and reticulated electricity or alternative energy source and reticulated sewage or an approved on-site retention system.
3. A permit is also required for buildings and works associated with a Section 2 use (the dwelling) and for works within 100m of a Road Zone Category 1. The proposal meets all of the building and works requirements including the setback from the Road Zone Category 1. Council however were of the view that the earthworks associated with the earth mound along the front of the lot, which are not part of the permit application, were works that required a permit and that if a permit were to be granted it should contain a condition requiring the mound to be removed.
4. The Tribunal accepts that there are no issues with respect to the style of the dwelling or its location on the land. The alternative location is similarly acceptable and would have the added benefit of reduced visual impact and providing greater separation from the broiler farm.
5. I accept Council's arguments that there is no conflict with the proposal and the Environmental Significance Overlays that apply to the land. The proposed dwelling will be outside the land affected by ESO17 and ESO28 and is consistent with the objectives of ESO4 with respect to maintaining the long-term natural agricultural and landscape values of the area.
6. The central conflict with the proposal is whether it is appropriate under the applicable zoning and related policy to allow the construction of a dwelling on this two hectare parcel of land in the zone.
7. It was argued by Mr Dickson, on behalf of his client, that the proposed use was extensive animal husbandry therefore consistent with the provisions of the zone. Extensive animal husbandry is defined in the Planning Scheme as:

Land used to keep or breed farm animals ... at an intensity where the animal's main source of food is obtained by grazing, browsing or foraging on plants grown on the land. It includes:

1. Council on the other hand accepted that the use was more akin to rural residential, the primary use being residential albeit in a rural setting. Such residential use does not exclude the possibility of some agricultural activity but it was Council's view that the extent of cattle grazing proposed was a secondary activity. Council's support for the construction of a dwelling on the land was not dependent on the cattle breeding operation proposed.
2. The Tribunal agrees with Council's assessment that the primary use of the land is residential. The applicant intends to breed Dexter cattle. Dexters are approximately two-thirds the size of traditional beef or dairy cattle and can be stocked at a higher rate. Maximum stocking rates would appear on the information provided by the applicant, to be of the order of one adult animal per acre. This would mean, when account is taken of the area of land dedicated to house, shed and utilities and the need for cutting grass for hay in spring to provide summer and winter feed, a maximum of three or four breeding cattle. It is my view that this is a very small scale activity that cannot reasonably be considered to be extensive animal husbandry.
3. It is further my view that the proposed use represents a loss of valuable farmland. The small size of the lot and the proportion of it taken up by house and shed etc compares unfavourably with a larger enterprise where the proportion of the land required for the dwelling and farm management is much less. The permitting of dwellings on small lots within the zone will have a cumulative impact that will add up to a significant loss of agricultural land.
4. Council drew the Tribunal's attention to a case at present on appeal to the Supreme Court Galvin v Mornington Peninsula SC (2009) VCAT 1973 (21 September 2009) where the Tribunal found that the grazing of four horses on eight hectares did not represent extensive animal husbandry and was more appropriately classified as animal keeping. The same could well be argued with respect to the represent circumstance.
5. Council, however, took the view that it was appropriate to grant a permit for a dwelling on this land. Ms Forsyth quoted a number of cases which dealt with dwellings on small lots, where an assessment of the context of the lot resulted in granting a permit for a dwelling. Context of relevance included, immediately surrounding small lots already developed with dwellings and the absence of similarly sized vacant lots in the immediate area precluding precedent being established. In the present case neither of the above circumstances apply. The subject site is one of 11 lots none of which have been developed with a dwelling and the lots in the broader area surrounding the site to the north, south and east are generally speaking three to 12 times larger than the subject site. Preventing a dwelling on the subject land will in the Tribunal's view, have an impact on the expectation of land owners for further dwellings on each of the subdivided lots of the original farm of which the subject site formed a part.
6. The separate sale of these lots could not be prevented in the absence of tenement controls. The separate ownership of each lot however does not of itself carry a right to construct a dwelling.
7. It is acknowledged in Council's Local Policy at 23.03 that land fragmentation is a key threat to continued agricultural use of land by

inhibiting the ability to utilise economically efficient and sustainable farm practices. Fragmentation also increases the population density in rural areas, which often imposes constraints on farming operations due to concerns about the use of farm equipment, the use of fertilisers and the like and the introduction of dogs. In addition the division of rural land holdings raises expectations of further residential encroachment, potentially increasing rural land prices and increasing pressures for further residential and rural residential development leading to further land fragmentation.

1. It was argued on behalf of Council that the proposed development would not have any negative impact on the values and purposes of the zone. It seems to the Tribunal that the Council's view was that if the Green Wedge Zone lots located within the municipality were developed with dwellings the increase in the number of dwellings in the zone would be manageable. This seems to the Tribunal to be at odds with the policy statements for the zone and also with respect to rural land. If the Council is seriously of the view that dwellings should be permitted on each of the available Green Wedge lots within the municipality then it is the Tribunal's view that the Responsible Authority should take measures to amend the Planning Scheme accordingly. This brings us to the question of the compatibility of the use with adjoining uses specifically the broiler farm across the road.

1. The Victorian Broiler Code as updated in 2009 provides for the minimisation of odour impact on nearby sensitive uses by way of farm management, shed design and separation distances. The separation distances contained in the Code apply to the development or expansion of broiler farms. The Code however suggests that they can be used as a guide to identify the locations where a future sensitive use may be adversely impacted by broiler farm emissions. The Code further states:

Direct application of separation distances between new sensitive uses and existing farms built prior to the Code (prior to 2001) however can be problematic and unreasonable for surrounding land owners. Often these farms were established at a time when there was no expectation that the approval of the farm would limit the use of adjoining land. In these cases however the historical performance of these farms in relation to the management of odour will be well established and the Responsible Authority may be able to consider the need to maintain an adequate separation distance with the site specific knowledge of the broiler farm's likely impact. The separation distances provided by the new dwelling should be as large as reasonably possible taking into account the likely additional risk of exposure to odour.

1. The Responsible Authority referred the matter to the Environment Protection Authority who responded as follows[1]: (The EPA is not a referral authority under the provisions of the Planning and Environment Act.)
   1. The subdivision has approximately 300m buffer from the nearest farm in the cluster. This is significantly less than 450m required distance which is calculated under the Code.
   2. In GHG's report, there are no unusual factors of terrain or farm operations management, or technologies adopted that support buffer variation.
   3. EPA's assessment is that GHD's odour modelling underestimates the odour concentrations at the permit site.
   4. EPA finds the use of 40OU as an odour impact threshold instead of the 5OU, specified in the State Environment Protection Policy (Air Quality Management), to be unacceptable and an underestimate of the impacts.
   5. Given the proposed development is close to the existing broiler farm clusters, we recommend the council consider the evidence of the recorded performance of the farm (eg any odour complaints from other residents and odour surveys) rather than rely solely on odour modelling (ie use real data rather than estimates).

Based on current information and noting that there is a cluster of farms in the area, EPA advised that the buffer distance should be at least 450m.

1. The applicant called evidence from Mr Tim Pollock with respect to the potential odour impact of the adjoining broiler farm on the proposed location of the new dwelling. Mr Pollock calculated separation distance for the adjoining property as contained in the 2009 Broiler Code showing these cover all of the subject site and the adjoining site as well as a portion of the two other sites having abuttal to Coolart Road. Mr Pollock however argued that the farm should be modelled as two operating entitles, one shed with the capacity of 44,000 birds at a distance of 300m from the amended house location and a group of three sheds with the capacity of 146,000 birds at a distance of 500m. The treatment of the sheds on the farm as if they were two separate sources is not envisaged in the Broiler Code provisions but is, in the Tribunal's view, not an unreasonable approach to determining the actual impact of the farm on the proposed dwelling.
2. Mr Pollock's calculations carried out for the separate odour sources were directed at determining the actual risk of odour impact from the broiler farm on the proposed dwelling taking into account meteorological data and bird age dependent emissions. This approach was supported by the Tribunal in a previous appeal Lemic v Colac-Otway SC [2009] VCAT 1637 (14 August 2009).
3. There was a difference of opinion between Mr Pollock and Mr Proctor with respect to the magnitude of the emission rate used by Mr Pollock in his calculations. It was Mr Pollock's assertion that curtain and louvre sheds had lower rates of emission than the state of the art tunnel sheds which are now the standard for the industry, because the constant through-put of air in a tunnel shed stripped the odour from the litter more effectively and released it to the atmosphere. The emission rate data he used came from a Western Australian study conducted in March 1997. No other study data for curtain sheds was made available.
4. The Tribunal agrees the constant airflow over the litter would remove more odour from the litter in a set period of time than if there was no air movement, however the times conducive to high odour impacts occurs in the evening, night time and early morning periods when ventilation rates are low in tunnel sheds and emission rates likely to be similar to that from curtain sheds. I also note that the tunnel sheds were introduced, in part, to reduce odour emissions from upset conditions which more frequently occur in curtain and louvre sheds where birds are cooled using foggers. I consequently have some concern regarding the omission from his environmental risk assessment of the probability of upset conditions occurring in the curtain style sheds.
5. I am satisfied with the methodology of the risk assessment and find it reasonable that the so called sleep hours from 12 am to 5 am are excluded from the calculation. I am not however fully satisfied with the maximum emission figure and the extent changing this would affect the risk matrix and therefore have concerns about the final conclusion that the odour disamenity to the proposed new dwelling would be low.
6. The other aspect of the assessment is the past history of complaints with respect to the existing broiler farm. The Tribunal was provided with a complaints list for 10 September 2008, 10 April 2007 and 18 August 2006 and a letter with respect to a complaint associated with poor practice regarding the disposal of dead birds dated May 1999. The Tribunal was informed that the practice which resulted in high odour levels had been addressed. It is my view the level of complaint is not insignificant particular by taking account that in two cases the complainant indicated that the odour had been an issue for some time. It is my view that there is a significant risk of odour impact associated with the location of the dwelling to the rear of the lot. I find that the margin of error is small and the uncertainties in the calculations reasonably high. In my view it would therefore be inadvisable to allow for a dwelling to be constructed in such close proximity to an older style broiler farm.

1. In light of the above it is my view that the proposed development fails on two counts.
2. Firstly the location of a dwelling on this lot is not encouraged by the Green Wedge provisions or the associated policy. In particular it is my conclusion that the prime purpose of the application is for a dwelling and that the farming activity is secondary. I am also of the view that there are no extenuating circumstances that would warrant permitting a dwelling given the existing policies and conditions and context of the site. If the Council wishes to make it possible for people with small lots within the Green Wedge Zone to develop these dwellings on the grounds that the impact by way of loss of farming land and land prices etc was acceptable then it is my view they need to make that clear by way of an amendment to the Planning Scheme.
3. Secondly the risk associated with the proximity to the broiler farm on the opposite side of Coolart Road is significant and sufficient of itself to warrant a refusal.

[1] The EPA's response related to the application dwelling location not the amended location.