1 I declare that the amended planning permit application dated October 2005 made by Alison and Peter Drew for a broiler farm, to house not more than 80,000 birds, at 641 McDonalds Track, Mountain View, is an application for a broiler farm that meets the requirements of a Class A Farm specified in the Victorian Code for Broiler Farms, September 2001.

2 Otherwise Proceedings P3383/2005, P3384/2005 and P3428/2005 are dismissed.

1 The characterisation of a proposed use or development of land is integral to the operation of Victoria's statutory planning system. The principles to be applied are well known: they were laid down by Marks J in Pacific 7 Pty Ltd v City of Sandringham[1] as follows: What is the "real and substantial purpose" for which the land will be used? And how does that real and substantial purpose fit within the defined or stated purposes? These principles are to be applied, not just in determining whether a proposed use fits within a particular land use term in the applicable planning scheme, but also in determining a relevant sub-category where this is relevant.

2 The question which I must determine in the present proceedings is whether an amended planning permit application for a permit for a broiler farm is for a broiler farm that meets the requirements of a "Class A" farm specified in the Victorian Code for Broiler Farms, September 2001 ("the Broiler Code"). This is relevant because clause 52.31 of the Baw Baw Planning Scheme provides that Class A broiler farms are exempt from third party notice requirements and third party review rights.

3 On 22 April 2005 the applicants applied for a permit pursuant to the Baw Baw Planning Scheme for a broiler farm that would house 110,000 birds. The proposed broiler farm was to be developed on an existing dairy farm, having an area of 102 hectares, at 641 McDonalds Track, Mountain View. In a detailed report that accompanied the application it was stated that two broiler sheds would be erected, with each shed having an area of 2,529 square metres (that is, a total floor area of broiler sheds of 5,058 square metres). The sheds were designed to be minimum ventilation combo tunnel sheds. In their application the applicants stated that each shed would have the required floor area to house about 55,000 birds. I note that this equates to 0.046 square metres per bird. The applicants submitted that the proposed broiler farm would be a Class B farm; although they asserted that it was close to being a Class A farm.

4 Subsequently the applicants decided to amend the permit application to be for a Class A broiler farm, stating that the total number of birds to be housed would not exceed 80,000. It seems clear enough that the motivation for this amendment was to avoid a requirement to provide third parties with an opportunity to object to the application. The amended application was essentially the same as the original application, save as to the maximum number of birds that were said to be accommodated. In particular, the amended proposal also involved two similar broiler sheds, each having a floor area of 2,529 square metres (or a total floor area of 5,058 square metres). Thus the amended proposal altered the area per bird from 0.046 square metres per bird to 0.063 per bird. Put another way, the original proposal involved the average area occupied by each bird being equivalent to a square having dimensions 214 millimetres by 214 millimetres; whereas the amended proposal involved the average area per bird being the equivalent of a square having dimensions 250 millimetres by 250 millimetres.

5 The applicants propose a production cycle that would consist of an approximate eight week growing period and an approximate two week period for shed clean out, repairs and maintenance. Day old chickens are to be introduced into the sheds over a one or two day period - thus all the birds on the farm will be of the same age. After about five weeks, the first collection of birds will occur - a process sometimes described as thinning. This thinning process will continue until final harvesting occurs, which will be at about eight and a half weeks after the production cycle has commenced.

6 The Broiler Code is an incorporated document in the Baw Baw Planning Scheme. The Broiler Code, which classifies broiler farms on the basis of size and set-backs, provides:

CLASS A FARMS contain both the boundary buffer and separation distance required for this Class (see Table 1) within the property boundary. While a planning permit is required, development approvals are exempt from third party notification and review rights. The applicant retains the right of review.

Table 1 then provides details of boundary buffer and separation distance requirements for Class A and Class B farms. The first column of this table is headed "FARM CAPACITY (number of birds)" and subsequent columns deal with the minimum boundary buffer and minimum separation distance. Thus, for a farm with a capacity of 80,000 birds, the minimum boundary buffer must be 220 metres and the minimum separation distance must be 300 metres for the farm to be regarded as a Class A farm. If a farm can provide a greater minimum boundary buffer and a greater minimum separation distance, then the farm capacity (in number of birds) may be greater than 80,000 birds whilst still being a Class A farm.

7 The Broiler Code contains definitions. The expression "farm capacity" is defined as:

Farm capacity is the maximum number of birds that a farm is designed to take.

8 The Broiler Code specifies that proponents must identify the relevant class of their farms and development proposals, based on the definitions and the requirements of Table 1. However this does not mean that the relevant class of a proposed farm is to be finally determined by the proponent: this is a matter for the responsible authority or the tribunal: see City of Springvale v Heda Nominees Pty Ltd.[2]

9 The responsible authority suspects that the amended application is merely a device to avoid third party participation in the permit process and a Class A broiler farm is not the appropriate characterisation of the proposal. In order to clarify this the council initiated an application, pursuant to section 149B of the Planning and Environment Act 1987, for a declaration as to the appropriate classification of the proposed farm. (This is proceeding P3428/2005.) The council submitted to the tribunal that, by reason of the history of the matter, the proposed broiler farm clearly has a capacity of 110,000 birds; with the consequence that, by reason of the applicable buffer and separation distances, it must be classified as a Class B broiler farm.

10 The applicants maintain that the proposed broiler farm is a Class A broiler farm because they have clearly stated an intention to house no more than 80,000 birds (in circumstances where the buffer and separation distances are sufficient for a broiler farm of that capacity to be a Class A broiler farm). To this end they contest a requirement of the responsible authority that they give notice of the application for permit. (This is Proceeding P3384/2005). The applicants have also sought a declaration to the effect that the proposed broiler farm is a Class A farm. (This is Proceeding P3383/2005). Essentially the applicants' contention is that the matter is to be determined by reference to the nature of the permission which is sought, which in this case is a permission limited to 80,000 birds. In this respect counsel for the applicants, Mr A Hooper QC, relied upon the decision of the Planning Appeals Board in Domm v Shire of South Gippsland (P83/405) to the effect that conditions were a fundamental cornerstone in the exercise of any planning discretion concerning the use of land and the issue of any permit with conditions is in the clear expectation that their content and intent will be met. Mr Hooper also submitted that the key consideration was not the physical capacity of the proposed sheds, but (to visit him with a phrase he did not use) the legal capacity of the broiler farm.

11 The expression "is designed to take" is open to different meanings. I suppose it might be said that the capacity of a broiler farm is solely a matter for the "designer", that is the applicant for permit; with the consequence that a subjective test should be applied. But I would reject this view. In my opinion, a subjective and objective test must be used to ascertain the maximum number of birds that a farm is designed to take. Hence one factor that will be relevant will be the intentions of the applicant. But intentions will not dictate the outcome: a man may build a mansion with the intention of living in a single room, but the building is still a mansion, not a bed-sitter.[3]

12 In determining the real and substantial purpose of a proposed use - or the maximum number of birds a farm is designed to take - it is necessary objectively to have regard to all relevant circumstances, whether physical, economic or legal. But the maximum number of birds that a farm is designed to take is not to be answered by looking solely at legal parameters; nor, for that matter, is it answered by looking solely at physical or economic parameters. All relevant factors must be considered.

13 It is important to observe that the maximum number of birds that a farm is designed to take will be influenced by farming practices and attitudes towards the welfare of poultry. For example, a farm which is designed to produce larger birds than is typical is likely to need more space per bird. Similarly a farm that does not employ "thinning" practices in the final weeks of a growing period is likely to require more space per bird. Further, and importantly, a farmer may choose to provide more space per bird to reduce amenity impacts (by increasing the amount of litter per bird available to absorb wastes) or to improve the efficiency of production or to improve animal welfare.

14 The Code of Accepted Farming Practice for the Welfare of Poultry[4] ("the Welfare Code") provides guidance as to stocking rates. The Welfare Code is intended as a set of guidelines which provides detailed minimum standards for assisting people in understanding the standard of care required to meet their obligations under laws that operate in Victoria. The Welfare Code notes certain basic needs of poultry, including accessible food and water, visual contact with other birds, weather protection and the prevention of disease, etc. Further, a specific basic need of poultry is identified as:

Freedom to move, stand, turn around, stretch, sit and lie down.

This need will be reflected in stocking densities.

15 The Welfare Code identifies different systems of poultry farming, including the meat chicken shed system using deep litter. This is the system proposed in the present case. For this type of system the minimal acceptable housing standard as to stocking density is specified (for tunnel ventilated extractive system sheds) as 40 kilograms per square metre. I was told by Mr David Proctor, who is an experienced consultant in the broiler farm industry, that the typical average weight of a bird ready for harvesting is about 2.7 kilograms. On this basis of this average weight number, the Welfare Code identifies a maximum stocking rate of about 15 birds per square metre or 0.067 square metres per bird. Such a ratio is consistent with the amended application, although it does not take into account an operation where there would be substantial losses or "thinnings" in the last three weeks of the growing period.

16 In relation to space allowances the Welfare Code provides generally:

3.1 It is recommended that maximum acceptable live weight densities be reviewed and adjusted according to advances in knowledge of animal welfare and husbandry. The space allowed for each bird will vary according to the species, breed, strain and type of bird in addition to increasing age and weight.

3.2 The stocking density will also depend on the quality and type of housing and the capacity to achieve and maintain acceptable levels of temperature, humidity, air exchange, removal of noxious gases and lighting. Upon the occurrence of disease or evidence of behavioural changes such as cannibalism, management practices, including stocking densities should be re-evaluated immediately and adjusted accordingly.

17 Further, in Appendix 2 of the Welfare Code the observation is made that it is not possible to relate stocking density to welfare in a simple manner.

Adequate welfare involves consideration of group size, the housing system, the feeding and watering system, the breed and strain of fowl, temperature, ventilation, lighting and other husbandry factors. The observance of any particular stocking density on its own cannot ensure the welfare of birds.

It is also important to stress that the requirements of the Welfare Code in relation to stocking densities are the maximum acceptable densities for different types of shedding, which must not be exceeded. If a farmer proposes to adopt a lower stocking density - whether for economic or animal welfare reasons - then the maximum number of birds that that farm is designed to take is the number produced by that lower stocking rate. It should not be assumed that, in every case, a broiler farmer intends to stock at the maximum acceptable density identified in the Welfare Code.

18 The fact that the applicants seek a permit which will limit the number of birds that can be accommodated to 80,000 birds is a relevant and important consideration. The legal environment in which a broiler farm proposes to operate is a factor which informs the maximum number of birds that a farm is designed to take. This will be more so when the restriction imposed by the legal framework is readily capable of enforcement. The tribunal does not assume that every condition that is imposed will always be complied with; just as it does not assume that landowners are dishonourable people. But there will be greater scope to rely upon a legal restriction in characterising a use of land if the restriction is likely to be complied with - particularly if it is readily capable of enforcement. The nature of the broiler industry is such that records must be maintained as to the number of birds that are grown and harvested; and as to relevant dates when birds are received and delivered. Such records are essential to the economic operation of the industry, as it is usual that a chicken processor has a proprietary interest in the birds being grown. Hence it should be an easy matter to impose conditions to ensure that the number of birds accommodated at the proposed broiler farm is no more than 80,000 birds and that this is capable of ready verification by the responsible authority. Indeed, if a permit issues, I would recommend that such conditions be imposed.

19 In my opinion, it is also necessary to consider physical and economic factors in determining farm capacity for the purposes of the code. If the proposed broiler sheds could physically accommodate one million birds in compliance with the Welfare Code, it is likely that a claim by an applicant that only 80,000 birds were to be accommodated would be treated with a grain of salt. I would be deeply suspicious of such an application because it would reek of disingenuousness. But the present proposal is not of that character.

20 I find that the proposed broiler farm is a Class A farm. I accept that the applicants now propose to accommodate a maximum of 80,000 birds; and, more importantly, are willing to accept a condition to this effect. Further, steps can be taken (and should be taken) to ensure that conditions are imposed to facilitate verification of this obligation. Further, the stocking density that would result from accommodating 80,000 birds in the two proposed sheds is consistent with sensible farming practices and does not have an air of unreality about it.

21 It is true that the change from the original proposal to the amended proposal has created doubts and concerns. It is also true that there appears to be no explanation as to the reason for the reduced stocking density, other than the obvious one that the applicants now seek to avoid third party scrutiny. Be this as it may, the stocking ratio that is now proposed is not unrealistic. And in the circumstances of this case it is reasonable to accept the word of the applicants as to the number of birds that they now propose to accommodate - as it will be possible to impose effective conditions to hold the applicants to their word.

[1] [1982] VicRp 14; [1982] VR 157.

[2] (1982) 1 PABR 287; 57 LGRA 298 per Southwell J of the Supreme Court of Victoria.

[3] See the detailed discussion in Mangan v Melbourne Cricket Club [2006] VCAT 73. Even though this decision was made in a different context, the discussion concerning the meaning of the expression "is designed" is apposite.

[4] Published by the Bureau of Animal Welfare, Attwood, Department of Primary Industries, Victoria, December 2003.