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[1998] VCAT 277
appellant. Appeal allowed. Permit directed to issue subject to 27 conditions including: lapse provisions (2 years); compliance with endorsed plans; buffer distances; management plans for flies and vermin;...
A farming couple wanted to expand their piggery from 1,200 to 3,500 pigs on their 450-hectare property near St Arnaud. The local council refused permission, worried about smells, flies and pollution affecting neighbours. The couple appealed to VCAT. The Tribunal found that the land was zoned for farming, the nearest house was 1 km away (twice the required distance), and the closest neighbour actually supported the proposal, saying she'd never had problems with smells or flies. An expert explained that the new 'eco-shelter' system with straw bedding would reduce smells by 40% compared to traditional pig sheds. The Tribunal allowed the expansion but imposed 27 strict conditions to control smells, manage waste properly, and protect the environment. These included requirements for buffer zones, composting plans, quarterly self-checks, and landscaping.
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Responsible Authority Northern Grampians Shire Council
Application under S.77 of the Planning and Environment Act 1987 (PE Act) for review of a decision to refuse to grant a permit.
Crown Allotments 17, 18, 3A, 6, 7, 8, 16 and 83, Section A, Parish of Moolerr and Crown Allotments 20, 20B, 20D, 20E, 20F, 38D, 38G, 38F and 42, Parish of Darkbonee.
"1. The use and development of the extension of the existing piggery will increase the "R" value of the site from 1200 pigs to 3700 pigs which will cause material detriment to persons other than the applicant by having an adverse impact on the amenity of the locality by virtue of increased odour, dust and flies.
2. The increase in the pig numbers and resultant effluent treatment and storage will result in unacceptable levels of odour being generated by the use and development impinging on the lifestyle and amenity of surrounding residents."
Ms M Ievens, Senior Planner, represented the Responsible Authority.
Ms C Osborne of TBA Planners Pty Ltd, appeared for the Objectors and called the following witnesses:-
Mr I G Farran, Agricultural Scientist, Director Agribiz Engineering, appeared for the Applicant.
By application dated 4 February 1998, Mr & Mrs Fithall sought permission to increase the existing Intensive Raising Piggery by 2,500 pigs (currently 1200 pigs) and construct dams and ancillary works on the subject site. Mr Farran said that the piggery will be of the eco-shelter bedding style. He continued:-
"This will be achieved by erecting 5 straw-based eco-shelters, 4 at 45m long by 9.1m wide and 1 at 38.4m long by 10.6m wide."
The eco-shelters are dome shaped in cross-section with curtain walls and open ends for ventilation.
Two pig pens exist on the site, currently housing 1200 pigs. The pigs will be housed between 8-22 weeks of age before the batch is removed. The straw base is removed at that time, the shed disinfected, and a bedding of fresh straw put in place.
Miss Ievens said that the application involves construction of a manure storage area, which will be a clay base and surrounded by a bund wall incorporating an internal drainage plan so that run-off is contained within a defined area. This area is to be provided to the south of Grower Shed 4. This pad has been designed to hold manure from 1 batch of pigs from each of the five sheds, therefore ensuring during very wet winters that adequate storage space is provided when it is not possible to apply the material to land.
Dead animals will be disposed of in the pit that has been recently constructed and covered by appropriate fill material on the day of burial to ensure disease spread and attraction of feral animals is minimised.
The proposal was widely advertised by direction of the Responsible Authority and eleven objections received. The Responsible Authority subsequently resolved to refuse the application on the grounds set out above.
The subject site is relatively flat with frontage to two gravel roads - Fithalls Road and Waterloo Plains Road. Of the site area of 450 ha, 266 ha is available for effluent disposal.
The land is zoned General Farming under the current planning scheme. It is proposed to be zoned Rural under the exhibited Northern Grampians Planning Scheme.
One overlay applies to the site - land subject to Inundation Overlay.
The proposal was referred to Wimmera Mallee Water who did not object to the proposal. They did however consider that the Responsible Authority should pay particular attention to the areas to be used for effluent spreading.
The proposed shed meets or betters all buffer distances specified in the Code of Practice Piggeries, Revised 1992. For example the nearest house is approximately one kilometre from the proposed site of the sheds. This is about double the distance specified by the Code.
The objectors based their opposition to the proposal principally on grounds of odour likely to be generated as a result of spreading effluent from the proposal on land near their homes. Ms Osborne said that the odour from the existing piggery results now in loss of amenity to residents, particularly during summer months. She said that outdoor social activities must be curtailed and all windows and doors kept shut. Ms Osborne also said that conditions of the existing permit are not complied with now. It could be anticipated therefore that future conditions would not be observed.
Ms Osborne also said that flies are already a significant nuisance. This could be expected to increase with the increased number of animals.
Further Ms Osborne argued that "the proposal has the potential to introduce pollutants into the waterways from run-off from the piggery site of buildings, as well as from run off from paddocks where the effluent is spread. On this aspect of the appeal she commented:-
"Local knowledge advises that this area is subject to overland flooding approximately once every five years, although there is a lack of documented flood information for this area.
The Code of Practice - Piggeries states that no piggery shall be located on land which is subject to a frequency of flooding of 1 in 50 years and no effluent shall be spread or deposited on land that is liable to flooding at a frequency of greater than 1 in 5 years.
The waterways provide stock and domestic supply to surrounding farms.
The low lying nature of this area also results in extensive water logging of the land during the wetter months of the year."
Ms Osborne called evidence from the abovenamed witnesses regarding odour and flies. This evidence was negated to a large extent by the evidence of Mrs Brennan, probably the closest resident, who lives at the racecourse approximately 1 km from the proposed sheds.
"During the time we have been living at the Racecourse, there have been a number of race meetings with people coming from all parts of the state both in cars and planes and never once have we heard a complaint about the existence of the piggery or complaint of flies. One can only assume that there is no one adversely affected at these times.
As to the effluent being detrimental to the environment, we can only go by the effect it has had on the Racecourse turf. It has come up better this year than it has for many years and this is in part thanks to the piggery effluent being applied some months ago. No need for harmful chemicals.
I feel that it is fair to say that at no time during the time we have lived at the Racecourse have we ever been adversely affected by the existence of the Fithall family piggery, nor have we heard comment from our many visitors."
In response Mr Farran, who is a well-recognised expert in the field of animal husbandry, presented a very detailed submission covering the proposal. He made the following general comments:-
* The piggery will be established at elevations well above levels expected in the watercourses. The water table is some 25 to 35 metres below surface level.
* Accurate stock records will be kept of the pigs.
* On-site water storage will be increased to provide for the increased pigs.
* No liquid effluents are involved in the proposed expansion so there will be no re-use of waters.
* Odour measurements taken at other eco-houses with straw based systems indicate 40% reduction in odour concentration over the traditional liquid effluent systems.
* Nutrient application rates resulting from the addition of manure to 185 ha of the subject site shows loadings well within the allowable Code requirements.
"The waste management system for the new pig sheds will consist of:
The wastes consist of straw (or other bedding material), urine soaked straw and manure which accumulates for the period that the pigs are in the building. For the Growers this is about 14 weeks.
Once the buildings have been emptied of pigs, the bedding material will be removed by Bob-cats and placed in trucks for removal to land application sites or further processing off site. These wastes will be applied to the land at rates of about 40kg Phosphorus/hectare or greater depending on soil testing.
The wastes can be treated by aerobic composting where the wastes are placed in windrows and regularly turned over to maintain air (oxygen in the material and avoid the generation of malodours) Diagrams in Appendix 4."
Mr Farran gave details of the infiltration capacity of the soil and said:-
"Applying the liquid wastes to land using the existing tanker at the rates specified in the above table requires a depth of application of about
3-5mm a year, for 8 months of the year the soils can easily absorb this depth of application as evapotranspiration is well in excess of rainfall. During the winter 4 months the liquid effluent can be stored in the underslat trenches and applied to areas of the farm that are accessible at this time of the year and will not result in effluent runoff. It is preferred not to store liquid effluent in a dam as this can create odour problems and has not been used in the past. A dam as shown on the drawing could be constructed for the purpose of storing the liquid wastes over the wet months as a contingency, the contents of the dam would be spread on the land as soon as the soil conditions allowed, this would avoid the production of odours that may occur as the dam contents warm up in the spring months."
He also said that a waste storage pad will be established to store the piggery wastes during winter or at other times when the ground is not able to be accessed and commented:-
"The storage pad will be bunded about 300mm above the surrounding area and be sloped to collection drains and a shallow storage of about 600 cubic metres to collect the runoff and rainfall for the wettest year in 10 years. This shallow storage will dry out each year through evaporation.
In the event that the waste storage pad has to be used the material will be put in windows which can be turned with a front end loader from time to time as required to maintain the windrows in an aerobic composting condition. It is important to maintain an aerobic composting process as this will not emit the more concentrated and intense odours associated with anaerobic decomposition which occurs when there is no air between the material in the windrows."
Finally, Mr Farran gave details of expected traffic movements (about 28 trips over a 3-4 week period with each batch), Drainage and Vermin Control. On the question of Environmental effects, he said:-
"As set out in the submission, this system of pig production is based on the bedding material absorbing the urine produced. Straw will absorb 3 to 4 times its own weight in moisture, so there are no liquid waste streams.
The submission sets out that the wastes will be removed from the site at clean-out, except when there is a problem with transport, breakdowns, weather, etc. when an emergency storage pad with bunding has been provided.
The rate of application of material would allow the application of the equivalent of superphosphate as generally used in the district, which is about 40 kg/ha of total phosphorus in the manure and straw.
The base of the eco-shelters and the storage pad will be properly compacted clay."
The subject site and environs were inspected following the hearing. The locality exhibits the wide, generally flat topography expected in this part of Victoria. Few houses or other signs of habitation are visible from the subject site.
In my opinion the appeal must clearly be allowed for the following main reasons. Firstly the zoning, which has as its first stated purpose -
Agriculture does not simply mean cropping but includes in the zone "a variety of agricultural pursuits, such as pastoral activities, cropping and other types of farming."
Secondly the proposal is remote from housing. While the spreading of wastes will be closer to existing housing, the management procedures outlined by Mr Farran are very likely to effect a great improvement in the conduct of the piggery. This is assuming that the odours and flies complained of by the objectors have in fact emanated from the subject site.
The appeal is allowed. It is directed that a permit issue subject to the following conditions:-
(a) the development is not completed within two years after the issue of the permit; or
(b) the use does not start within two years after completion of the development; or
(c) the use is discontinued for a period of two years.
The Responsible Authority may extend any of the above time limits if the owner. or occupier of the land requests, in writing, an extension of time before the permit expires or within three months after the permit expires.
2. All buildings or works authorised or required by this permit must be constructed in accordance with an endorsed plan and such plan must be in substantial accordance with the plan accompanying the application but modified or elaborated to show the satisfaction of the Responsible Authority:
a) buffer distances of 20 metres from boundaries of the land on which effluent is to be spread where the adjoining land is in separate and different ownership.
b) a setback of 200 metres from Navarre Road in accordance with the Code of Practice - Piggeries 1992.
d) a management plan detailing the methods to control the presence of flies, both in the sheds and manure storage area.
e) a management plan detailing the method which is proposed to minimise the impact of feral animals and rodents.
Prior to the commencement of buildings and works on the site, the endorsed plans referred to in Condition 2 must be approved by the Responsible Authority.
4. The operation of the piggery must at all times be in accordance with the Code of Practice - Piggeries 1992.
5. The liquid effluent must be pumped out on a daily basis.
6. The areas of land along the 200 metre plus contour as shown on the endorsed plan, that is not subject to water logging and subsequent run off, must be utilised for the spray irrigation of piggery effluent during the four wet months of the year, and such spreading must be to the satisfaction of the Responsible Authority.
7. All dead pigs must be removed from the piggery on a daily basis and disposed of in a properly constructed pit and covered in accordance with the Code of Practice - Piggeries 1992.
8. The manure storage area must be fully constructed prior to the use of the sheds hereby permitted.
9. All buffer distances required for the spreading of effluent in accordance with the Code of Practice - Piggeries 1992 must be marked with permanent posts to clearly delineate the areas where effluent is not to be spread. This must be carried out and maintained to the satisfaction of the Responsible Authority.
10. The area set aside for the storage of solid effluent must be enlarged to enable manure storage from two batches from the five (5) sheds to be stored during the winter months to the satisfaction of the Responsible Authority.
11. A management plan detailing the process of composting the solid effluent stored in the manure storage area must be submitted and approved by the Responsible Authority prior to commencement of any works authorised by this permit. Such a management plan must detail the frequency of turning the material to aid effective composting, treatment and disposal of collected surface run-off from the manure storage area collection pad and measures to be undertaken to limit odour generation from the manure storage pad.
12. Details must be submitted of the design and location of the proposed collection dam in association with the manure storage pad addressing the volume of run-off generated from a fully utilised manure storage pad, the capacity of the dam and the measures to be undertaken to minimise odour generation from the dam must be submitted to the Responsible Authority before the use and development commences and must be to the satisfaction of the Responsible Authority.
13. An agreed system of self-auditing must be developed by the applicant and endorsed by the Responsible Authority to generate a quarterly report to demonstrate the keeping of pigs, the spreading of effluent and the storage of manure complies with the Code of Practice - Piggeries 1992.
14. The owner/applicant must at all times comply with Section 71 of the Catchment and Land Protection Act, 1994, dealing with the introduction of noxious weeds. The owner/applicant must submit to the Responsible Authority details of proposed systems to ensure that the spread of noxious weeds through the application of piggery wastes and importation of straw/rice hulls is eliminated. Such strategy should incorporate a quality assurance program. The strategy must be approved and implemented to the satisfaction of the Responsible Authority.
15. Prior to the commencement of any work, a detailed landscaping plan indicating species, location and planting size must be prepared and submitted to the Responsible Authority and when' approved must form part of this permit. The use must not commence until the landscaping has been completed in accordance with the endorsed plan and to the satisfaction of the Responsible Authority.
16. The layout of the site and size of the proposed buildings and works must be generally in accordance with the plans submitted plans must not be altered or modified, (whether or not to comply with any statute, statutory rule or by -law or for any other reason) without the consent of the Responsible Authority.
17. The use hereby permitted must be such that the building or works occupied and the activity carried on will not cause injury to or prejudicially affect the amenity of the locality by reason of the appearance of such building or works or activities or by reason of the emission of light, noise or smell.
18. The use hereby permitted must be carried out in such a manner as not to cause any nuisance because of the emission of odour, noise, dust, the presence of vermin or otherwise to the satisfaction of the Responsible Authority.
19. The use authorised by this permit must not be varied except with the further consent in writing of the Responsible Authority.
20. Access to the allotment boundary must be provided to the satisfaction of the Responsible Authority.
21. A culvert beneath the proposed crossover must be installed to a standard satisfactory to the Responsible Authority.
22. All access lanes on the land must be formed to such that they can be utilised in accordance with the endorsed plan and must be drained and surfaced with an impervious surface to the satisfaction of the Responsible Authority.
23. The loading and unloading of vehicles and delivery goods to and from any place of storage within the site must at all times be carried out on the land.
24. All work upon the entrance must be carried out at the cost of the owner and must be to the satisfaction of the Responsible Authority.
25. All landscaped areas and vegetation plantings must be watered and maintained at all times, to the satisfaction of the Responsible Authority.
26. All materials stored on the site must be stored out of view in an appropriate place of storage in such a manner so as not to cause unsightliness to persons on nearby lands or roadways.
27. Prior to the sale or lease of any part of the land subject to this permit, a copy of the permit must be given by the vendor, transferor or lessor, to the purchaser, transferee or lessee of that part of the land.
The Responsible Authority is directed to issue a permit in accordance with this order under the provisions of Section 85(1)(b) of the Planning and Environment Act 1987.
Fithall & Ors
Northern Grampians SC [1998] VCAT 277
Appeal allowed. Permit directed to issue subject to 27 conditions including: lapse provisions (2 years); compliance with endorsed plans; buffer distances; management plans for flies and vermin; compliance with Code of Practice - Piggeries 1992; daily pumping of liquid effluent; wet weather spreading restrictions; daily disposal of dead pigs; manure storage area construction; marked buffer posts; enlarged storage capacity for two batches; composting management plan; collection dam details; quarterly self-auditing; noxious weed control; landscaping; and ongoing compliance with amenity protection requirements.