1 By letter dated 23 January 2004 Maddocks, acting on behalf of the Melton Shire Council, sought a preliminary legal hearing in relation to the application for review. In order to understand the nature of the request it is necessary to set out some background matters.

2 A permit application has been made to use land at Troups Road, Mount Cottrell for the purpose of a broiler farm. It is proposed that the broiler farm will accommodate 160,000 birds. The application for the permit was advertised and a large number of objections were received. The council, being the responsible authority pursuant to the Melton Planning Scheme, failed to determine to grant a permit. Subsequently the permit applicant applied to this tribunal to review that failure and seeks from the tribunal the grant of a permit permitting the broiler farm to proceed. The council is opposed to the application for review as are, of course, the objectors.

3 Clause 52.31 of the Melton Planning Scheme contains provisions that deal with broiler farms. The purpose of this provision is to facilitate the establishment and expansion of broiler farms in a manner that is consistent with orderly and proper planning and the protection of the environment. The clause applies to land used or developed, or proposed to be used or developed, for a broiler farm. It is common ground that the proposal, the subject of the application for review, is a broiler farm and that clause 52.31 of the scheme applies.

4 Clause 52.31 imposes a requirement that:

A broiler farm must comply with the Victorian Code for Broiler Farms, September 2001. A permit for a new Class C broiler farm as described in the Victorian Code for Broiler Farms, September 2001 must not be granted after 26 September 2001.

The Victorian Code for Broiler Farms, September 2001 is an incorporated document in the planning scheme.

5 By reason of the language used in clause 52.31 and the fact that the code is an incorporated document, the provisions of the code, particularly those that relate to whether or not a broiler farm is a new Class C broiler farm, have effect as if they are part of the planning scheme.

6 When codes are incorporated into a planning scheme by reference it is desirable that those parts which are incorporated and which are intended to have mandatory effect are expressed in clear language that should characterise legal documents. Sadly, this is not always the case. It is not imperative that words that set forth a guideline be expressed in clear and unambiguous language. However when words are intended to be applied in a definitive manner so as to determine rights, it is desirable, if not essential, that the words be clear, unambiguous and certain. This is a lesson that is not of recent invention, but notwithstanding that, it is a lesson not heeded on too many occasions.

7 Turning to the code it is clear that the manner in which broiler farms are to be assessed depends initially on the classification of the broiler farm into a particular class. The classes are classes A, B, C and Special Class, but in this application I need only concern myself with classes B and C. A new Class C farm, which is prohibited by clause 52.31, is defined on page 8 of the code, essentially, to be a farm that cannot be classified as Class B because it cannot provide the required boundary buffer or separation distance for Class B. Thus a real issue is whether or not the proposed broiler farm is a Class B farm.

8 The council contends that the proposed broiler farm will not be a Class B farm, and hence will be a prohibited Class C farm, because it will not comply with the minimum separation distances set out in Table 1 on page 8 of the code. For a farm having 160,000 birds the minimum separation distance for a Class B farm is therein specified as 500 metres. Ms Moles, who appeared for the council, tendered a plan showing a circle containing the minimum separation distance from the proposed broiler farm. Within that separation distance the plan shows a proposed dwelling at a site noted as Site 3, which dwelling is proposed to be located on the property to the north of the subject land.

9 It is necessary that I set out certain provisions of the code in order to make my reasons intelligible. First, what would appear to be, and what I take to be, a definition of Class B farms is set out on page 8 in these terms:

CLASS B FARMS contain the boundary buffer for this Class (see Table 1) within the property boundary. Part of the separation distance for this class may be outside the property boundary provided there are no existing or likely sensitive land uses within the separation distance (see Element 1, paragraph 3 and 4). Third party notification and review rights apply.

10 The expression sensitive land use is defined in the definition section of the code on page 52 as follows:

A sensitive land use includes a dwelling, dependant persons unit, residential building, hospital, school, day-care centre, caravan park and other uses involving the presence of people for an extended period of time. It does not include recreational areas like parks and sporting facilities.

11 The expression separation distance is defined in the definition section of the code on page 52 as follows:

The separation distance is the shortest distance measured from a point on the nearest broiler shed wall to the nearest boundary of the sensitive land use (except for a dwelling, dependent persons unit or residential building where the measurement will be to the nearest wall), and is required specifically for the avoidance of adverse impacts associated with emissions from abnormal or unexpected events (such as plant upsets or accidents).

For fan-forced tunnel sheds aligned together with fan emission points close together, measurement from the centroid of these points (see definition of 'centroid') to the nearest boundary of the sensitive land use may be allowed. See Table 1 in Using the Code for minimum separation distance for Class A and B farms.

12 The code also contains a number of elements that are designed to be considered when a permit application is made. In turn, each element contains objectives, criteria and guidelines. None of these objectives, criteria or guidelines directly apply in the determination of whether or not a farm or proposed farm is a Class A, Class B, Class C or Special Class farm. Rather the principal role of these provisions is in determining whether a permit be granted.

13 However paragraphs 3 and 4 of Element 1, at page 21 of the code, do have a role to play in the determination of whether or not a proposed farm is a Class B farm because they are specifically referred to in what is, in effect, the definition of a Class B farm. Paragraphs 3 and 4 of Element 1 provide as follows:

For the purpose of assessing whether an area affected by a separation distance may contain a sensitive land use in the future, the responsible authority will have regard to the potential for the development of a dwelling on the adjoining property 'as of right' (that is, without a planning permit) but not for the potential development of additional caretaker dwellings or second dwellings which are subject to planning permits.

Where a site adjoining a proposed broiler farm is currently vacant, it should be assumed that an 'as of right' dwelling may be located centrally on the property (that is, the available separation distance will be calculated to the centre line of adjoining allotment if that lot is currently vacant).

14 Ms Moles was faced with the prospect that paragraph 4 on page 21 might be read as meaning that where land is vacant it must be assumed that the dwelling is to be located centrally on the property. If that was the case, she conceded and rightfully conceded, the central location within the property to the north of the subject land was outside of the minimum separation distance for a farm having a capacity of 160,000 birds. However she contended that the assumption in the fourth paragraph on page 21 must give way to the circumstances; and that one of the circumstances in this case is that a building permit had been granted by a private building surveyor, which happened to be the Brimbank City Council, for a dwelling to be constructed in location 3 on the submitted plan, which was within the 500 metre minimum separation distance. She explained that on earlier occasions building approval had been given for two other locations on the land in question; one of which was outside of the 500 metre minimum separation distance; and the other, although within the 500 metre minimum separation distance, was an invalid permission because a planning permit was required for that location, having regard to an environmental zone.

15 It may be useful if I express some views about the way the code works.

16 In my opinion, the determination of whether or not a proposed broiler farm is a Class B farm must be approached by first considering whether the proposed farm contains the boundary buffer specified in Table 1 of page 8 of the code. In turn that will depend upon the farm capacity. As Table 1 makes it clear the concept of a boundary buffer is to be distinguished from the concept of minimum separation distance. The definition of boundary buffer is as follows:

The boundary buffer for a broiler farm is the shortest distance measured from a point on the nearest broiler shed wall to the nearest point on the property boundary, and is required for avoidance of adverse impacts associated with the normal or routine emissions that remain after the application of best practice in emissions management and control technology.

For fan-forced tunnel sheds aligned together with fan emission points close together, measurement from the centroid of these points (see definition of "centroid' below) to the nearest boundary of the property may be allowed. See Table 1 in Using the Code for minimum boundary buffers for Class A and B farms.

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.

[1] The legal profession and those who write legislation would benefit from Sir Richard Eggleston's book, "Evidence, Proof and Probability", Weidenfield and Nicolson, London.