Fraser v Cardinia SC [2012] VCAT 127

Fraser v Cardinia SC [2012] VCAT 127 - VCAT 2012 case summary — Zoe

[43]

To achieve the outcomes of protecting local amenity and the environment the Broiler Code sets out a range of requirements for:
- The siting and size of broiler farms;
- The application of best practice in the design, construction, operation and management of broiler farms to meet relevant environmental standards;
- The preparation, assessment and determination of broiler farm development proposals through the planning permit system;
- Ongoing management and monitoring of broiler farm operations.
As the Broiler Code notes at page 6, compliance with the Code alone will not ensure all relevant planning scheme requirements are met. There are of course a range of other planning matters to take account of. However in terms of potential environmental and amenity impacts, the Broiler Code is quite specific in addressing key amenity and environmental issues[7] common to all broiler farm applications and those raised in this application.
Finally it is important to the understanding of our reasons to highlight the status and application of the Broiler Code as an incorporated document in the planning scheme. As an incorporated document it is effectively part of the planning scheme. It is not the role of this Tribunal to question the standards and methods of this code we will refer to later in these reasons. Rather it is the role of this Tribunal, as it was of the Council, to apply that which is contained in it just as we would any other provision of the planning scheme.
Thus while many of the concerns raised by the objectors suggests a need to look at the adequacy of the Broiler Code requirements, that is not our role. Our role is to determine whether this code has been complied with, as is required and as we have explained above.
Two matters relevant to the application of the Broiler Code arise from the submissions of the objecting parties to this application. One is about compliance with design elements that address adverse amenity impacts. The other issue is that most particularly raised by the Row's about the presence of the broiler farm sterilising adjacent land from future land uses.
Before turning to these matters we note here that there was little by way of challenge to the potential environmental impacts of the proposal save for issues about water quality, flooding and drainage. Mr Kraan's unchallenged evidence is that the design of the broiler farm complies with the design elements required of it in respect to environmental conditions. This includes the sealing of the shed floors, general layout and orientation of shed fans, exhausts and visual/landscape screening. We accept this evidence and apart from the matter of stormwater drainage and treatment, which we address later, we will not address wider environmental or visual amenity issues in these reasons.

[59]

There is agreement that the proposal meets the approved measures for setbacks from residential zones, rural living zones or any future such zones.[14] Because of the absence of on-site litter stockpiling and the like, other measures under this element are not in play. In fact except for the two matters raised by Ms Blackburn on behalf of the Row's there is no challenge to the proposal not meeting any of the approved measures under this element.
In terms of this element, Ms Blackburn suggests that the separation distance is minimal and possibly inadequate because of the prevalence of westerly and south-westerly winds that increase the risk of odour transmission towards the Row property.
We do not accept this proposition.
Approved measure E1 M1.3 draws attention to meteorological conditions and the need for separation distances to account for site specific circumstances. The Broiler Code recognises however that these circumstances are likely to be limited in nature.
We do not accept that the prevalence of certain winds presents an increased probability or risk of adverse or offensive impact. A range of factors such as wind speed the coincidence of winds with odour release events, dispersal conditions, topography and the like, all combine to affect the degree of off-site impact. For example cold, stable air drainage down a valley can move odour with little dispersion from a site to neighbouring land. Conversely unstable winds over plains can rapidly disperse odour.
It is this Tribunal's experience that the prevalence of south and south-westerly winds is not unusual for southern Victoria. This is perhaps no more evidenced by the consistency of such wind monitoring results for the range of stations tabled by Ms Blackburn.
In the absence of a specialist assessment that indicates this site has particular meteorological conditions that would require an increases in the separation distance over and above that determined under the Broiler Code classification method, we are satisfied that the separation distance applied to this site is appropriate.
Ms Blackburn also contends that the compliance with standard E1 S5 and approved measure E1 M5.1 is so marginal that a small increase in bird numbers would affect the ability of adjoining land owners to realise other future use and development of their land, including agricultural use. She also submits that the lot to the north of the site[15] will be similarly sterilised from future use while land to the west contains a significant proportion of the buffer. She goes so far as to submit that the compliance with the 50% is important as 'it protects the amenity of adjoining farms as workplaces...'. She urges the Tribunal to reduce the bird numbers to provide a 'comfort zone'.
It is true that the calculated area of buffer over the Row property is close to the 50% threshold. It is also true that the buffer area exceeds 50% for the lot to the north of the site and encroaches onto land to the west. We are not persuaded by Ms Blackburn's submissions that this means the proposal fails the measures for this standard because:
- The Row property has an existing sensitive use established outside the buffer area and the remaining area outside the buffer is available for the establishment of other sensitive uses, if it were possible under current planning controls.
- The purposes and the requirements of the existing Green Wedge Zone, relevant factors to take account of in Standard E1 S5, are not directed toward 'as of right' sensitive uses. In fact, as we have noted earlier many of the purposes are directed toward retaining land for agricultural use as well as for other natural resource management purposes. These purposes and the associated land use permitting requirements and associated decision guidelines all giver rise to an expectation that the use of the land would limited to very few sensitive uses relevant to the Broiler Code.
- As per the evidence of Mr Kraan, the buffer areas recognise that while sensitive land uses may be affected by emissions, other less sensitive uses such as agriculture are not a consideration. Indeed, it is recognised in the planning scheme that agricultural uses may themselves have a range of amenity impacts, which is why State and local policy seek to avoid sensitive land uses conflicts that can impact on the proper functioning of agricultural land.[16] Ms Blackburn's suggestion that the buffer and separation distances are designed to protect adjoining farms as workplace misconceives the underlying purposes of these design elements.
- The land to the immediate north and west of the broiler farm are all within the proponent's property, i.e. it is part of the overall contiguous landholding owned and farmed by Mr Fraser. We note that the Broiler Code refers to separation distances and buffers in terms of property boundaries rather than individual lot boundaries. Given such terms the extension of the buffers into Mr Fraser's own property is perfectly acceptable not withstanding that the property is made up of a number of lots. However, we see no need to rely on such an interpretation of 'property' as used in the Broiler Code. Mr Fraser's lots to the north and west retain an ability to be used for a range of purposes. This includes sensitive uses by way of remaining land outside the buffer areas in compliance with measure E1 M5.2. Further, in meeting standard E1 S5 regard is to be given to the purposes of the zone and the applicable decision guidelines and policies as we set out earlier in our reasons. It follows from such considerations that one should not assume the land is suitable for sensitive land use development in the first instance.

[63]

The design response includes directing all runoff from the shed roofs and hardstand areas into a retention basin, constructing the floor levels of the sheds above the flood level and establishing waste management practices to prevent contamination of surface water.
Mr Craigie's evidence is that flood survey data establishes the 1:100 ARI[17] flood level for this locality at 25.5m.[18] A combination of raised floor levels and natural levels due to the sheds being located on locally elevated land can achieve a development floor level of 25.8m. A further 300mm freeboard is achieved by way of the 300mm high concrete dwarf walls of each shed and drop boards placed over entrances. The overall flood protection height of each shed will therefore be 26.1m, or some 600mm above the 25.5m flood level. This accords with Melbourne Water's requirements.
In response to the Melbourne Water requirements, Mr Craigie has designed a 1.3 hectare dam to retain stormwater runoff. This dam will operate in conjunction with water storage tanks that will store roof runoff for re-use.
The dam is designed such that it will maintain capacity to contain runoff from a 1:100 ARI storm event. This will be achieved in part by the shallow depth of the dam enhancing evaporation losses. As well a low set outlet will maintain the required freeboard for storm flow containment. The low set outlet also has the advantage of preventing floatable materials from being discharged from the dam.
The dam will be sealed using compacted clay or an impervious liner. This will prevent interaction with local groundwater.
The peak discharge from the dam has been designed by Mr Craigie to be no more than 19.6L/s, representing a flow of 3L/s per hectare from the total area being drained.[19] It is his evidence that this represents about 10% of the current rural land use storm flow.
This design therefore addresses Mr McCausland's concerns about additional discharge to local drainage flow and flood impacts. The stormwater contribution from this development will in fact see a decrease in flow rather than increase. As observed by Mr Craigie this will be a benefit, even if marginal, to downstream flood impacts.
In terms of water quality impacts, the use of a detention basin is estimated by Mr Craigie to reduce total suspended solids by some 93% over present day conditions. On-site management of litter, chemical and other materials, as proposed under the site Environmental Management Plan will minimise risks of contaminating overland flows.
Mr Craigie's evidence appears to us to be soundly based. His analysis accords with accepted industry practices and standards. We also gain some measure of confidence from his evidence given the fact that Mr Craigie assisted Melbourne Water in the preparation of suitable design responses for broiler farm applications and has applied the same approach to other broiler farms in the Koo Wee Rup flood plain.
We find that the design response has appropriately addressed Melbourne Water's requirements and the design requirements of the Broiler Code for stormwater and environmental management.

[68]

An important issue for the residents around the subject site is the increase in traffic that would be generated by broiler farm. This traffic includes the large trucks up to B-Double size. The residents are concerned about the safety of such vehicles travelling through the town and along narrow gravel roads, as well as noise and dust. Some respondents take issue with the applicant's nominated level of vehicle movements, indicating that it is inconsistent with other broiler farm proposals. They suggest higher traffic levels, heightening their concerns about safety and amenity impacts.
Given the questions raised in the grounds of the residents, Mr Kraan has consulted with the proposed poultry supplier about vehicle movements. He confirms that some traffic movement figures in the application require updating. His evidence is that litter deliveries may be up to 7 times per batch, an increase of 2 over his original estimate, while litter removal movements may decrease by 1 to 14 times per batch. The most significant change is the increase in feed deliveries from 30 per batch to up to 50.
With these changes, Mr Kraan estimates total truck movements of between 125 and 130 movements per batch, the variation arising from seasonal delivery of natural gas for shed heating. Of these movements, some 100 could be B-doubles and a further 20 or so would be large truck and trailer combinations dealing with litter.
The total vehicle movements equates to an average of four movements per day, with a possible peak of 10 to 11 movements per day estimated by Mr Symons.
Mr Symons evidence is that the proposed truck route of Heads Road, Caldermeade Road and McCraws Road is safe and capable of handling the levels of vehicle movement. He highlights that bird pickup, a major source of B-double movement will occur in the early hours of the morning, when traffic conflict probabilities are low. The proposed route will avoid movements of all vehicles through Catani or within its vicinity so that there are no safety or noise impacts for the town. He is also of the opinion, based on road widths and available vehicle monitoring data that the increase in traffic levels can be adsorbed onto the proposed route without issue.
An inspection of the proposed route and other surrounding roads supports the evidence of Mr Symons that the most appropriate route is that proposed along the wider and sealed Heads and Caldermeade Roads. In terms of McCraws Road., we note Mr Symons cautious language in respect to its width i.e. it is 'sufficient for careful passing opportunities'. As per the comments of some residents the width of McCraws Road varies from the 6m width quoted by Mr Symons to perhaps a tad under 5m in some instances. However we accept the evidence that the grassed roadside verges are sufficient to provide passing, in a 'careful manner' and take account of the low speed environment in which the trucks would be travelling to the farm entrance after having just made the turning manoeuvre at the intersection with Caldermead Road.
Mr Symons visual assessment of sight lines on approaches to the intersection of Caldermeade and McCraws Roads aligns with the conditions observed during the inspection. Sufficient sighting along Caldermeade Road is available for east-west moving traffic at the speeds appropriate to the road conditions. Traffic moving north-south along McCraws Road will be subject to the give-way/stop traffic controls at the intersection, and so should be approaching this intersection at appropriate speeds.
Thus while the final entry into the site is off a gravelled and at times narrow road, we agree that the access route is workable and sufficient for the level of traffic operations required to support the proposal. We therefore do not consider that the access arrangements are so poor as to warrant a refusal for this proposal.

[72]

Before the use or development starts, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the plans BS01-A dated 18 October 2010, BS02-F dated 2 December 2011, BS03-E dated 15 December 2011, BS04-C dated 15 December 2011, BS05-A dated 13 October 2010, BS06-D dated 6 December 2011, BS07-B dated 5 December 2011 and BS08-B dated 2 December 2011 as prepared by Focus Creative Development Solutions, but amended to show:
- (a) Details of the proposed access from McCraws Road to the farm, including vehicle movements to accommodate the turning movements of a 'B Double' truck;
- (b) The proposed five metre wide driveway access from McCraws Road to the farm widened to six metres to allow for two way heavy vehicle movement;
- (c) An amended landscaping plan which must include Manna Gum, Swamp Melaleuca, Prickly Tea-tree, and Thatch Saw Sedge. References to Acacia dealbata must be deleted from the schedule.
- (d) Floor plans and elevations for the caretakers dwelling and the location and extent of a wastewater disposal envelope.
- (e) Location and details of the bunded area for storage of liquids and chemicals.
- (f) The location and orientation of floodlighting and/or security lighting.
The use and development as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.
Once the development has started it must be continued and completed to the satisfaction of the Responsible Authority.
Before the development commences, Lot 1 TP534050T and Lot 1 TP402806A must be re-aligned in accordance with the endorsed plans under the Subdivision Act 1988 as evidenced by the certification of a plan by the Responsible Authority and the registration of such a plan by the Registrar of Titles.
Before the use starts, an Environment Management Plan (the EMP) for the operation of the broiler farm must submitted to and be to the satisfaction of the Responsible Authority. When approved by the Responsible Authority, the EMP will be endorsed and then form part of this permit. The EMP must be prepared in accordance the Victorian Code for Broiler Farms 2009 (or as may be amended from time to time).
Site performance inspections, site audits and reviews of the EMP must be undertaken in accordance with the endorsed EMP. Any revision to the EMP must be submitted to and be to the satisfaction of the Responsible Authority. When approved, the revised EMP shall be endorsed and then form part of this permit.
The use must be undertaken in accordance with the most current version of the endorsed EMP.
Prior to the commencement of the proposed use, the permit holder must:
- (a) construct the proposed driveway accesses to the subject site to a standard acceptable to the Responsible Authority, including an all weather surface and drainage as required;
- (b) Obtain a permit from Council for B-Double use of Council roads along the nominated truck access routes.
All stormwater must be conveyed to satisfactory points or areas of discharge approved by the Responsible Authority, so that it will have no detrimental affect on the environment or adjoining property owners.
Before the development is occupied the vehicle crossing as shown on the approved plans must be constructed in accordance with the approved plans and to the satisfaction of the Responsible Authority. If the construction of the proposed rural vehicle crossing requires the installation of a drainage culvert it must be to the satisfaction of the Responsible Authority.
Earthworks must be undertaken in a manner that minimises soil erosion. Exposed areas of soil must be stabilised to prevent soil erosion. The time for which soil remains exposed and unestablished must be minimised to the satisfaction of the Responsible Authority.
The slope of batters, both cut and fill, must not exceed 2:1 (horizontal: vertical) or, where this is not practicable, batters must be stabilised by other means to the satisfaction of the Responsible Authority.
All waste water from the proposed dwelling must be treated and contained on site in accordance with the EPA Septic Tank Code of Practice (as amended from time to time) and to the satisfaction of the Responsible Authority.
All wastewater must be discharged into the reticulated sewerage system, to the satisfaction of the Responsible Authority, within three (3) months of the sewerage system becoming available to the property.
All trees and shrubs included in the endorsed Landscaping Plan must be planted within six (6) months of the commencement of the use hereby permitted (or such other time as the Responsible Authority may allow in writing)and must thereafter be maintained in a healthy condition to the satisfaction of the Responsible Authority. Any dead or diseased trees must be replaced.
The broiler sheds hereby permitted may only be used for the accommodation of broiler chickens except with the written consent of the Responsible Authority.
Live broiler chickens must be kept and raised within the broiler sheds and must not be allowed in any free range/outdoor area.
Spent litter and associated waste must be removed from the subject land in accordance with the endorsed EMP and may not be stockpiled, composted or distributed on or over the subject land.
All goods and materials must be stored in accordance with the endorsed EMP and in all cases be out of view or stored to the satisfaction of the Responsible Authority so as not to be unsightly when viewed from nearby roads or land in other occupation.
The poultry sheds and all feed stores must be vermin and bird proof to the satisfaction of the Responsible Authority.
Other than the loading and removal of birds, no deliveries to or removals from the subject land, may take place after 6.00 pm or before 7.00 am on any day without the prior written consent of the Responsible Authority.
The surface of the access lanes and loading areas must be formed and treated to prevent dust and drainage run-off causing a loss of amenity to the area to the satisfaction of the Responsible Authority.
Security lighting and / or external floodlighting must be angled, baffled or screened to prevent direct light spill to adjoining land.

At a glance

Court

Decision date

Source

Judgment (97 paragraphs)

Fraser v Cardinia SC [2012] VCAT 127 (3 February 2012)

Parties

Legislation Cited (1)