17 The next part of the exercise will be to determine whether there is any existing sensitive land use within the separation distance specified in Table 1. In determining this question it is necessary to have regard to the different measurement methods set out in the definition of separation distance.
18 In my opinion, the method outlined in the second paragraph of that definition, which deals with fan-forced tunnel sheds aligned together with fan emission points close together, requires measurement from the centroid of those points to the nearest boundary of the sensitive land use, save that if the sensitive land use is a dwelling, a dependent person's unit or a residential building, then the measurement is to be to the nearest wall of that building. A grammatical reading of the definition might result in a different measurement method in the case of a dwelling where a broiler farm proposed a fan-forced tunnel shed aligned together with fan emission points close together. But the intent is clear. Where the sensitive use is a dwelling, a dependent person's unit or a residential building, the measurement point to it in every case is to a wall of the building rather than to the nearest boundary of the site on which the building is located.
19 Where there is no existing sensitive land use within the relevant separation distance, the next matter that will need to be determined is whether there is a likely sensitive land use within that distance. The word likely is used in the law and in society in a loose way. Where it used in a provision having legal effect it is necessary to determine what it means and to divine some certitude out of the looseness. One thing is clear though. The determination of the question of whether or not there is a likely sensitive use within the separation distance ultimately is a question of fact which will depend upon the evidence available to the responsible authority or the tribunal in a particular case. The word likely in its context means probable, which, if interpreted having regard to probability theory, would certainly mean having a probability of greater than 50 per cent.[1] Whether more than a probability of 50 per cent is required, I do not need to determine in this application, and I expressly do not determine.
20 The language used in paragraphs 3 and 4 on page 21 might be thought to describe the method which must be used to determine whether or not a proposed sensitive use was likely. In truth it does not do that; rather it sets forth a guideline which may be used to assist in the determination of whether a sensitive use is likely. The key is to be found in the first paragraph. It provides, in substance, that the responsible authority will have regard to the potential for the development of a dwelling on the adjoining property as of right. The word will does not indicate that a particular method is mandated. Rather it is a word signifying intent. The language used in the document, and the language commonly used in current planning documents, where a particular method is being mandated is must. I regard the use of the word will as indicating no more than an intent that a particular method be used as a guideline, or as a first cut, rather than a mandate that that is a method to be used. Both Mr Hooper and Ms Moles essentially agreed with this proposition. The proposition is also supported by common sense. If for example it was probable to the extent of 99% that a sensitive use was to be located within the minimum separation distance, then it would be illogical to find that there was no likely sensitive use to be located within the minimum separation distance notwithstanding that the proposal might satisfy paragraphs 3 and 4 on page 21. Conversely, if a proposal did not satisfy paragraphs 3 and 4 on page 21, it would be illogical to find that there was a likely sensitive use within the separation distance when it was probable as a matter of fact that that was not the case.
21 One issue which may need to be determined at the hearing is whether it is likely that a dwelling will be constructed on Site 3 or on some other location within the minimum separation distance. The fact that a building permit may exist for the construction of a dwelling on Site 3 will be a relevant factor, but is hardly decisive of the issue. For example, the evidence may reveal that a building permit was obtained to construct a dwelling on Site 3 as a device to thwart the proposed broiler farm. It may be that Site 3 is poorly served by infrastructure, such as electricity, roads and water, when compared with other sites on the relevant parcel of land. The somewhat peripatetic character of the site for the dwelling on the parcel of land in question might be thought to be relevant in the determination of this question. It is sufficient to note that the question will require factual findings and, generally, these are best made in the context of a full hearing.
22 It also seems to me that whether or not a dwelling is likely at a particular site ought be determined on the basis of what is likely to occur if the proposed broiler farm was not in contemplation. The scheme of the code is not that a broiler farm can be thwarted by a neighbouring or nearby landowner deciding to erect a dwelling in a particular location on the basis that such a dwelling would prevent a permit being granted for the broiler farm. Justice normally turns its back upon boot straps arguments; and if a person could thwart a broiler farm application by proposing to erect a dwelling in the most unlikely location this would be contrary to the intent of the code.
23 In any event, as Mr Hooper pointed out, the minimum separation distance would be reduced if a condition was imposed upon any permit restricting the capacity of the broiler farm to 120,000 birds (or some fewer number). I was informed that such a reduction, combined with a minor relocation of the broiler farm buildings, would mean that Site 3 would be beyond the minimum separation distance. Once again, the determination of this question is best left to a full hearing.
24 Given my findings, and the holdings that I have made, it is unnecessary to hold a preliminary hearing. Rather the issues that the council wishes to ventilate concerning the likelihood of a sensitive use commencing on the land to the north is best done at the hearing which is scheduled for 28 April 2004.
25 Mr Hooper sought the costs of today. He said that the directions hearing had been called by the council and, effectively, its application had been unsuccessful. So much may be true, but it does not follow that costs should be awarded. The usual course in planning cases before the tribunal is that each party bears their own costs. That usual rule should apply here. The point that was raised by the council is one of some substance. Its view that there may have been advantages in having the Class C issue determined as a preliminary matter was legitimately held and was a point that could not be described as hopeless. I regard the costs that are incurred in an application of this sort as being, what I have described on previous occasions as, the rub of the green.