Mr S. Green, Planning Officer represented the Responsible Authority.

Mrs C. Hendriks represented herself. Mrs Hendriks called evidence from Mr R. Edwards, a neighbour.

1. This is an Application for Review of a Decision of the Bass Coast Shire to issue a Notice of Decision to grant a permit for use of land for free range poultry farm (500 birds).

2. The Grounds of Application for Review by Mr and Mrs Doig are:

1. The information submitted with the application is both inadequate and inaccurate.

2. The proposed use and development does not comply with the relevant planning scheme provisions. In the absence of accurate and detailed information required by the planning scheme it is difficult to determine the degree of compliance.

3. The proposal is contrary to the proper and orderly planning of the area.

4. The proposed use and development will have an adverse effect on the amenity of adjoining and nearby properties and some existing properties suited to further development including lots which may be developed for one additional house.

5. The proposal will generate a loss of amenity and enjoyment of our property which abuts the subject site through issues of odour, additional traffic, lights and noise for residents living in close proximity.

6. The proposal does not meet the objectives of Section 4 of the Planning and Environment Act 1987.

7. The use and development will materially alter the use of the subject land insofar as it will impact on the lifestyle of nearby owners and occupiers. The proposal will detrimentally affect our quality of life.

8. There is no guarantee that permit conditions would adequately address the adverse impacts on the local area.

9. The proposed free range chicken farm would not provide adequate buffer distances to nearby residential properties.

10. The proposed access to the site for trucks etc., to and from the site is not designed to accommodate additional truck volumes and contrary to lease arrangements with DNRE.

3. Application for Permit 99/1609 sought approval for "free range egg producing chooks (500)". A sketch plan showed that it was intended to utilise a paddock located almost centrally on the site with an enclosure measuring about 175 metres by 50 metres which contained existing sheds. The details of the application were later clarified in the letter to the Responsible Authority (after the Application for Permit was decided) which stated:

(a) Existing shed for egg laying made of timber and steel frame with corrugated iron roof and sides. Size 7.150 metres x 3.300 metres and 2.500 metres high. For roosting portable sheds made from steel frame and corrugated iron.

(b) Using existing horse fences with 1800mm high ringlock Emu fences and covered inside with 1.800 metres chicken netting with 500mm electric fence to keep foxes out.

(c) Existing Besser brick building with corrugated iron roof and concrete floor (old Dairy) close to gate and road and lockable.

(d) To be spread on existing paddocks for fertiliser.

(e) Odours will not occur as we are on lose sandy soil where drainage and waste are easily absorbed.

4. The subject site is situated on the south east corner of Agar Road and Dwyer Road, and is known as Lot 1, PS122475-Volume 9239 Folio 754 Agar Road, Coronet Bay.. The site has a frontage of 303.84 metres to Agar Road and a frontage of 402.34 metres to Dwyer Road. Land area is 12.22 hectares. The site is occupied by two dwellings various sheds and vegetation. Land in the north east corner of the site is low lying wetlands with various native vegetation. The site has, until recently operated as an Emu Farm but it also currently operates as a Rabbit Farm. It is intended to continue the Rabbit Farm operations with the free range egg farm.

5. Agar Road is a sealed road providing principle access to rural properties and access to the township of Coronet Bay. Dwyer Road is an unconstructed road and is predominantly occupied by vegetation although there is a rough access track through it. The Applicant for Permit has a lease from the DNRE to occupy part of Dwyer Road.

6. Mr and Mrs Doig live on a property (which contains three lots) immediately to the north of Dwyer Road. The dwelling is about 380 metres north of Dwyer Road.

7. Land in the locality is rural although there is evidence of individual houses on smaller blocks and/or hobby farms which have apparently been excised under previous subdivision rules. Typically the land is low lying undulated agricultural land which traditionally has been used for grazing purposes. The Coronet Bay township is over 1 km to the north west of the subject site.

8. The subject site and surrounding properties are zoned Rural under the Bass Coast Planning Scheme. The relevant purposes of the zone are:

* To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

* To provide for the sustainable use of land for extensive animal husbandry (including dairying and grazing) and Crop raising (including Horticulture and Timber production).

- an integrated approach to land management protection and creation of an effective rural infrastructure and land resource

- improvement of existing agricultural techniques

- protection and enhancement of the bio-diversity of the area.

- value adding to agricultural products at source.

- promotion of economic development compatible with rural activities.

- development of new sustainable rural enterprises.

* To ensure that subdivision promotes effective land management practices and infrastructure provision.

9. The proposal was defined by the Responsible Authority as "intensive animal husbandry" which is "land used to keep, breed or farm animals, including birds by importing most food from outside the enclosures" .

10. Intensive animal husbandry is an unspecified Section 2 (Permit required) use in a rural zone.

11. The Tribunal notes for completeness that the definition of "extensive animal husbandry" is land used to keep or breed farm animals, including birds at an intensely where the animals main food source is obtained by grazing, browsing or foraging on plants grown on the land. It is includes:

(b) The incidental penning and housing of animals including birds for brooding, weaning, dipping or other husbandry purposes.

12. Mr Green provided further detail on the relevant objectives and policies of the new VPP based planning scheme.

The following objectives are appropriate in the consideration of this proposal:

To ensure that the states agricultural base is protected from the unplanned loss of high quality productive agricultural land due to permanent changes of land use and to enable protection of productive farmland which is of high quality and strategic significance in a local and regional context."

To facilitate the establishment and expansion of cattle feedlots, piggeries poultry farms and other intensive animal industries in a manner consistent with orderly and proper planning and protection of the environment."

The Municipal Strategic Statement recognises agriculture as important economic driver of the Bass Coast Shire. It also recognises that the main agricultural industries in the shire are beef and dairy production and it is important that diversification is encouraged. The following provisions from the Local Planning Policy Framework are applicable:

The rural interland is characterised by rolling hills used for dairy and beef cattle grazing. The land is generally of high agricultural quality.

Little diversification has occurred in animal grazing and cropping to date, but there has been a steady increase in the variety of horticulture and exotic animal husbandry occurring in the shire. Examples include vineyards, flower production, and venison and emu farms."

* To establish a strong and vibrant rural agricultural community comprising a range of diversified enterprises that are efficiently managed and ecologically sustainable.

* To retain viable rural holdings, particularly on high quality agricultural land.

* Value adding rural industries to establish in the shire."

* To ensure that the creation of small rural lots from farming properties will result in a clear improvement of farming efficiency and land management practices.

* To ensure that a dwelling on a small rural lot does not prejudice rural production activities, or impacts on the environmental or landscape quality of the area.

* To ensure small rural lots do not occur in environmentally sensitive areas."

13. At the Review Hearing all parties tabled and read from written submissions. The Tribunal was also provided with photographs of the site, locality plans, details of planning scheme provisions, and further details of the activities to occur on the site. The Tribunal advised it had viewed the site prior to the Review Hearing. Mr Edwards, a neighbour, provided brief evidence in support of the proposal and was available for cross examination. The Tribunal also viewed the subject site and the Doig's site after the hearing to determine the distance between the Doig's house and the proposed poultry activities.

14. At the conclusion of the review hearing, the Tribunal adjourned the hearing and directed the applicant provide the following information:

* A plan or aerial photo with a scale depicting the distance between the poultry shed and Mr and Mrs Doig's house.

* A plan which accurately depicts the location and dimensions of the poultry shed in relation to the northern, western and southern property boundaries. This plan should also show the actual dimensions of free range holding pens compound(s).

* Methods of cleansing of poultry sheds and disposal of waste.

15. It directed the applicant to forward copies of such documents to the Application for Review and the Responsible Authority, and it gave the parties seven days to respond to this documentation.

16. The Tribunal subsequently received correspondence from Mrs,. Henriks on the 18th of March 2000. This documentation included:

* A survey plan prepared by Beveridge Williams & Co Pty Ltd Surveyors, which accurately depicted the distance between the proposed poultry farm facilities and the Doig's house.

* Details of the vehicular entry from Agar Road.

* Measurements of relative distance to various boundary fences, and a more precise information on the poultry sheds.

17. Mr. and Mrs. Doig provided a written response which was received on 23 May 2000.

18. The Tribunal does not propose to discuss every detail of Mrs. Henriks documents other than to say it considers that documentation provided by Mrs. Henriks is satisfactory, and that it should form part of Condition 1 of the Permit.

19. The Tribunal notes the responses from Mr. and Mrs. Doig, and considers most points raised do not require further comment other than the comment on page 2 which stated:

"We thank Mr. Peter O'Leary for his attendance and thank him for pointing out to us that after 29 years residency and with a subdivision of three lots, we now have little hope of ever being able to build on our Lot 3."

20. The Tribunal considers this is an incorrect interpretation of what was stated. The Tribunal advised the Doig's that having regard to the provisions of the Rural Zone in the new Bass Coast Planning Scheme. There was no implied right to erect a dwelling on a relatively small rural lot such as Lot 3. The Tribunal did not say the Doig's had little chance of success, but suggested the Doig's examined their expectations in the light of the planning provisions (See Para 31 of this decision or Para 25 in the preliminary decision).

21. The Tribunal proposes to address the issues raised by the Doig's in the order of the amended Grounds of Application for Review.

22. Mr Doig was highly critical of the details submitted with the Application for permit and claimed he could not understand how the Responsible Authority could make a decision based on the information submitted. He claimed there was inadequate information on the distances of the sheds, the details of the shedding and some of the documentation in the Council Officer report. The Tribunal considers the Doig's criticism is valid. It considers the amount of information originally supplied was insufficient, but that has now been remedied

23. The Tribunal was interested to know the actual distance between the poultry shed and Mr and Mrs Doig's house. The Tribunal was told the shed was 160 metres from its northern boundary. It was also told there was a distance between the northern boundary of the subject site and the southern boundary of the Doig's property (i.e. Dwyer Road) was 20 metres. This gives a distance between the southern property boundary of the Doig's property and the proposed sheds as 180 metres. Following the hearing the Tribunal estimated (using the Odometer on the Victorian Civil and Administrative Tribunal vehicle) at 380 metres to the Doig's house. This in total would give a distance of about 560 metres between the Doig's house and the poultry shed.

24. During the hearing the Tribunal requested the actual distance be confirmed using either scaled plans or aerial photos. The Tribunal explained it was common practice for "larger poultry farms" to have a 500 metre buffer distance. It acknowledged this was a much smaller operation but believed this information would be helpful to both the Tribunal and the Doig's. The Tribunal ordered that such information be provided. The survey plan tabled showed a distance of 555.68 metres before approximate centre of the chimney on the Doig's house and the centre of the shed.

25. The Doig's also raised strong concern about the potential for odours and pollution. The Tribunal considers the Applicant should provide some technical explanation of effluent disposal even if it is from a free range operation.

Compliance with Relevant Planning Scheme Provisions

26. Mr Doig provided that no details of areas of non compliance with the planning scheme. From the submissions by the Responsible Authority and the Tribunal's reading of the Planning Scheme and the EPA Residual Buffer Distances Document (AQ2/86) the proposal appears to be consistent with the purposes of the zone and in conformity with the buffer distances for both meat and egg production.

27. Mr and Mrs Doig seem to be concerned that a poultry shed was inconsistent with the planning of the area. The Tribunal notes that the zoning is Rural and that a free range poultry farm would be consistent with the zoning of the land.

28. Mr Doig explained there would be odours, additional traffic, lights and noise for residents living in close proximity to the proposed use. He raised concerns about the "perils and problems" of the industry and that this was not the time to be experimental so close to homes such as his. He did not believe the paddocks were large enough for the activity and cited examples such as Newcastle's Disease as a reason to oppose the location of this activity.

29. Mr Green explained in his submission that this matter came down to a "right to farm" issue, and the Applicant questioned rhetorically "if I can't have free range chickens on a rural zone property where can I.?" The Tribunal notes the primary purpose of the "rural" zone is directed at farming and rural pursuits. It is not directed at residential activities. In fact dwellings on a lot less than 40 hectares require a planning permit and there are specific conditions limiting further subdivision of land on lots less than 40 hectares. Judging by the purpose and its provisions of the zone there is no inherent right to a dwelling on a lot less than 40 hectares in area. The Tribunal considers that the legitimate expectations of people wishing to pursue farm activities on rural zoned land should be clearly recognised by persons who reside in dwellings in or near rural zones. Whilst the Doig's may claim the proposal will result in a loss of amenity such expectations need to be considered in the light of the rural nature of the area. The Tribunal noted during the hearing that the land was not zoned for residential or rural residential purposes. It considers that noise, farm odours, the coming and going of trucks, tractors and related farm vehicles are a normal activity in a rural zone. Often these activities need to be conducted at various hours of the day and persons residing in such areas should not expect the same level of amenity as they would if they were in a conventional residential or rural residential zone.

30. Having noted that the proposal involves a relatively small poultry activity (i.e. 500 "chooks") the Tribunal considers that the operation is relatively small and of relatively low intensity. It may well be a different situation if the land nearby was zoned residential or rural residential but it is not, it is zoned rural.

Section 4 of the Planning and Environment Act

31. The Doig's provided no details of any non compliance with this provision.

32. Mr Doig explained that he and his wife plan to build a new house on another lot owned by them which is closer to the subject site than the dwelling they currently occupy. The Tribunal explained during the hearing that it appeared a permit would be required for such a dwelling and that any application would probably undergo an Notification process. Judging by the planning controls in place there can be no implied right to build a house on a lot less than 40 hectares in this area and therefore Mr and Mrs Doig's expectations may need to be examined in the light of the planning scheme provisions.

33. Mr Doig was particularly critical of the wording of Condition 1 and took a sceptical view of the likelihood of this condition being met.

34. It is important to assess whether the conditions imposed by the Responsible Authority are realistic and can be met. The Tribunal considers that some of the detail in condition 1 should be provided at the outset. The Tribunal considers it is important to properly define the use and its activities so that it is possible for both the Responsible Authority and Objectors to tell whether conditions have in fact been met. If they have not been met it would be possible to take action under Sections 87 or 120 of the Planning and Environment Act to enforce the planning permit, including its conditions.

35. Mr Doig was highly sceptical of the Responsible Authority's performance and claimed that the Responsible Authority did not have sufficient manpower to follow up and enforce its planning scheme. He sited the poor response at returning telephone calls as an example. The Tribunal explained that one of the reasons the Tribunal has decided to request more information is to ensure that there is a satisfactory level of documentation describing the activities and related processes so that the Responsible Authority or an Objector can effectively quantify whether the permit conditions are met. Whilst in some cases this may be seen as a reason to reject the Application, given the modest nature of the proposal, the Tribunal considers it was appropriate for the applicant to be given an opportunity to finalise these details.

36. Mr Doig was critical of the potential problem of trucks using Dwyer Road (which is leased by DNRE to the Applicants). Mrs Hendrix explained that the proposal did not involve use of Dwyer Road for the poultry operations. Rather construction trucks had used it during construction of another shed which was unrelated to the poultry activities. Mrs Hendrix claimed that access would be to Agar Road. The Tribunal considers Agar Road is an appropriate road for access noting its form of construction. It considers the Licence agreement between DNRE and Mrs Hendrix to be irrelevant to the issues at hand.

37. The Tribunal is satisfied that the proposed use is a modest activity well suited to a rural zone. The information in response to the Tribunal's directions has been tabled and is satisfactory. The Tribunal is satisfied that the information tabled will form the basis of documentation required under Condition 1 of the Permit. The Tribunal is satisfied that the proposed 500 chook free range egg production farm meets the purposes and intent of the Rural Zone. The Tribunal acknowledges that Mr. and Mrs. Doig's criticism about the lack of information had some validity, but considers the documentation is now available and demonstrates that the poultry facility is adequately separated from the Doig's house, and is a reasonable facility in this rural area. A permit shall issue in accordance with the Responsible Authority's Decision.