Fraser v Cardinia SC [2012] VCAT 127

1. Pursuant to clause 64(2) of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998, permit application T100886 is amended by the substitution of 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, prepared by Focus Creative Development Solutions.
2. The decision of the Responsible Authority is set aside.
3. In permit application T100886 a permit is granted and directed to be issued for the land at 105 McCraws Road Catani in accordance with the endorsed plans and on the conditions set out in Appendix A. The permit allows:
   • Use and development of the land for the purpose of a broiler farm with a maximum capacity of 350,000 birds and associated infrastructure, including machinery and storage shedding, staff amenity building, water tanks, feed silos and earthworks that includes a dam and a caretakers dwelling.

Mr G Peake, of Counsel by direct brief. He called the following witnesses:

• Mr Jack Kraan, a town planner from Creative Development Solutions;
• Mr Russell Symons, a traffic engineer from Ratio Consulting
• Mr Neil Craigie a hydrologist and waterway engineer from Neil M Craigie Pty Ltd.

Ms Michelle Blackburn, a solicitor of Blackburn Lawyers.

For Cardinia Ratepayers and Residents Association Inc

For Tracey Gardiner, Suzanne Lee, Stephen Trewin, Peter and Claudia O'Rourke, N.W. Blamey, B Gardiner, and G&T and C&B Gardiner

To construct and operate a broiler farm comprising of seven sheds that would be 17m wide, 150m long and 3.8m high. Each shed would contain not more than 50,000 birds each for a total farm capacity of 350,000 birds.

Associated infrastructure includes: a caretaker's dwelling, a 1.3 hectare dam and shedding for machinery, storage of chemicals and amenities. LPG storage tanks and three large water tanks are also included in the proposal.

Each broiler shed will have a raised compacted clay floor, with the main exhaust fans located at the southern end. Up to four feed silos of 7.8m height will be located adjacent each shed.

The broiler sheds are enclosed by two 30m wide loading pads which are connected by 5m, all weather ring road. A 15m wide landscape buffer will bound the outer perimeter of the development.

Access into the site will be from McCraws Road via a 5m wide all weather road. At McCraws Road the access will be widened to accommodate passage of passing trucks, with the gate located inside the boundary by 30m to provide space for off-road parking if required.

Review of a refusal to grant a permit made under section 77 Planning and Environment Act 1987.

Zone and Overlays applying under the Cardinia Planning Scheme

Particular provisions that apply under the Cardinia Planning Scheme

Planning permissions required under the Cardinia Planning Scheme

Use of the land for a broiler farm in a Green Wedge Zone (Clause 35.04-1).

Buildings and works for a section 2 use in a Green Wedge Zone (Clause 35.04-5).

Buildings and works in a Land Subject to Inundation Overlay (Clause 44.04-1).

Relevant scheme policies and other provisions of the Cardinia Planning Scheme

State and Local Planning Policy Frameworks found under Clauses 11.04-6, 13.02-1, 13.04-1, 13.04-2, 14.01-2 and 21; and the General Decision Guidelines found under Clause 65.

The site is located north-west from the corner of McCraws Road and Lennox Road and approximately 1.3km south-east of the town of Catani located on Taplins Road.

The land on which the broiler farm would be located is known as 105 McCraws Road, Catani. Catani is located approximately 16km south east of Pakenham and to the east of Koo Wee Rup.

The site is 33.43 hectares in size and irregular in shape and the land is almost flat, fenced, with some vegetation along the McCraws Road frontage. The land is currently used for grazing. The site is one of several lots that form the property of the permit applicant.

The surrounding area is part of the Koo Wee Rup floodplain, is rural in nature, being generally used for grazing and dairying purposes with scattered dwellings.

The Tribunal undertook an inspection of the site, local roads and surrounds after the hearing.

Schembri v Cardinia SC [2006] VCAT 2042.

1. This is an application to develop and operate a broiler farm capable of containing up to 350,000 birds at any one time. Cardinia Shire Council refused the application for the broiler farm in June 2011 citing non compliance with the separation distances under the Broiler Code of Practice 2009[1] as the basis for this refusal. The permit applicant seeks a review of that decision.
2. In support of its application, Mr Fraser has instructed the preparation of amended plans. These plans relocate the proposed sheds to the west of the original location and increase the size of a stormwater dam to accord with Melbourne Water's requirements.
3. The Council has considered these plans, which have now been substituted as the application plans. At a meeting in December 2011, the Council resolved to revise its position and support the proposal subject to permit conditions.
4. Not withstanding the amended plans and the Council's position, a number of local landholders and Catani residents as well as the Cardinia Ratepayers and Residents Association oppose the grant of a permit. In the main their reasons for doing so are due to concerns about:
   • Odour and other amenity impacts from the broiler farm;
   • Traffic impacts from an increased number of truck movements to and from the site;
   • Conflict between the broiler farm and other land uses; and
   • Generally supporting the earlier position of the Council that the proposal does not comply with the Broiler Code of Practice.
5. The Tribunal must decide whether a permit should be granted and if so what condition should be applied. Having considered all the submissions and evidence presented with regard to the applicable policies and provisions of the Cardinia Planning Scheme we have decided that a permit should be granted for the broiler farm subject to suitable conditions. Our reasons for this decision follow.

WHAT ARE THE DETERMINATIVE ISSUES IN THIS APPLICATION?

1. The objections of the surrounding neighbours and residents raise a variety of issues. In essence however the key matters distil down to the following questions:
   • Will the proposed broiler farm have unacceptable off site amenity impacts?
   • Have flooding and drainage issues been appropriately addressed?
   • Will the increase in traffic unreasonably affect road safety and resident amenity?
2. Some respondents question the suitability of a broiler farm in this location, given the Green Wedge Zone that applies.
3. The purposes of the Green Wedge Zone 1 include amongst others:

To recognise, protect and conserve green wedge land for its agricultural, environmental, historic, landscape, recreational and tourism opportunities, and mineral and stone resources.

To encourage use and development that is consistent with sustainable land management practices.

To encourage sustainable farming activities and provide opportunity for a variety of productive agricultural uses.[2]

1. A broiler farm is a section 2 (permit required) use under the zone, as are a range of other agricultural pursuits. Extensive animal husbandry and cropping are section 1, no permit required uses.
2. Clearly, the purposes of the zone and the uses contemplated under such a planning control include agricultural pursuits, albeit we accept some such uses, such as a broiler farm, that have the potential for adverse off site impacts, are conditional. Being conditional does not mean that the use is prohibited or that such a use is inconsistent with the purposes of the zone. What it does mean is that contemplation of such a use will be subject to appropriate scrutiny to ensure that it is consistent with the purposes and objectives of the planning scheme.
3. For these reasons, we do not see the zoning as an impediment to this proposed land use. Indeed, as was noted in the reasons of Schembri[3] the Green Wedge Zone 1 is '...one of the very few zones in which broiler farms are permitted' and can therefore be contemplated. Such a use however must be subject to appropriate levels of scrutiny as has occurred in the Council's assessment and now by this Tribunal. We therefore have turned our focus (and these reasons) toward the determinative issues we have set out above.

WILL THE PROPOSED BROILER FARM HAVE UNACCEPTABLE OFF SITE IMPACTS?

1. A conditional requirement for permitting a broiler farm in the Green Wedge Zone is that the proposal 'must meet the requirements of Clause 52.31'.[4] The purpose of this particular clause 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.

1. It is a requirement of this clause[5] that the proposal for a new broiler farm must comply with the Victorian Code for Broiler Farms 2009 (the Broiler Code).[6] This code therefore forms the basis for '...the planning, design, assessment, approval, construction, operation and management of broiler farms in Victoria'. It is said to present:

...an appropriate balance between the operational needs of the broiler farm industry and the protection of the environment, particularly the air environment for people who live near broiler farms.

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.

1. The Broiler Code sets out a series of 'accepted principles' to manage amenity risks. To deal with amenity issues of odour, dust, noise and light spill the Broiler Code adopts the following three step approach:

1. set any new broiler sheds, temporary litter stockpiles or compost piles back from the broiler farm boundary (the boundary setback or 'boundary buffer' in the previous Code).

2. provide a separation distance between the broiler shed and existing or potential sensitive uses.

3. employ best practice in the design, siting, operation and management of the broiler farm (including landscaping).[8]

1. The boundary setback is a fixed distance of 100m between any broiler shed (or a stockpile) and the broiler farm boundary.
2. This proposal meets this requirement.
3. The separation distance is defined as the distance:

... the nearest external edge of the new or existing broiler shed to the nearest external edge of the sensitive use (that is the nearest edge of the house) on land beyond the broiler farm property. It excludes sensitive uses directly associated with the broiler farm operations - eg. dwellings on the broiler farm property.[9]

1. The objectors question the degree of compliance with this requirement, a matter which we address shortly.
2. The best practice design, siting and operational matters are considered through a systematic classification of the farm proposal and the application of a series of 'farm design and operation elements'. Each design or operation element sets out an objective, which must be complied with, and standards which contain requirements which meet the objectives and also must be complied with.[10] For each element the Code also sets out approved measures which are means by which an application can achieve the standard and hence the objective. In some circumstances an alternative measure may be accepted if it can be demonstrated that the relevant objective and standard is met. The objectors also question the degree of compliance with certain design and operational elements.

The farm classification and separation distance requirements

1. The system of farm classification uses a graded approach based on bird numbers and ability to meet separation distances from sensitive land uses and / or other broiler farms. In particular cases an Odour Environmental Risk Assessment (an Odour ERA) may be required for larger farms or where prescribed separation distances cannot be achieved.
2. In this application, the farm capacity is less than 400,000 birds, the maximum capacity being 350,000. Accordingly, the minimum separation distance from sensitive land uses (i.e. dwellings) is calculated under the Broiler Code method to be 638m.
3. This separation distance is met, as the nearest sensitive use (a dwelling) will be approximately 710m[11] from the nearest shed. This distance is not wholly contained within the broiler farm boundary. Accordingly, the farm is a Class B farm under the Broiler Code.[12]
4. The Row's and other residents submit that this compliance is marginal. They maintain that there remains an unacceptable risk of amenity impact because it is marginal and because the separation distance is not wholly contained within the farm property.
5. We do not accept such notions or interpretations of the Broiler Code and the intent of the separation distance. As a Class B Farm the adoption of the separation distances is taken to:

... minimise the risk of offensive odour and dust emissions under both routine and abnormal (or upset) conditions adversely impacting the amenity of existing sensitive uses.[13]

1. The Broiler Code goes on to highlight that the greater the separation distance the lower the probability of offensive odours and dust impacts. It must follow therefore that being in excess of the minimum separation distance as this proposal achieves, must be taken reduce the probability of adverse impact over and above that adopted in the methodology of this code. The risk of adverse odour emissions is further reduced by the fact that the operation will not include any stockpiling, composting or spreading of litter on the subject land, all activities which are assumed to occur in the method used to determine the minimum separation distance.

Location and siting elements and land use conflicts

1. Further to the above, Element 1 of the Farm Design Elements sets out that:

This element addresses the location and siting objectives that a proposed development must meet to minimise potential amenity or environmental impacts, including odour, dust and noise emissions, and the pollution of ground and surface waters. These objectives are primarily addressed by providing sufficient separation (or 'setback') of emission sources (namely, broiler sheds, temporary litter stockpiles, compost piles and litter spreading areas) from sensitive uses, waterways and other existing broiler farms.

Note: The following requirements apply in addition to the separation distance requirements used to determine farm classification (found in the 'Classification of broiler farms' section of this Code).

1. 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.
2. 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.
3. We do not accept this proposition.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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'.
9. 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.

1. We conclude from the above reasons that in this application, given the proposed extent and nature of the broiler farm activities the compliance with the separation distance and the code requirements and siting and location elements in respect to off-site amenity impacts, an acceptable level of off-site amenity protection to surrounding sensitive land uses is achieved.
2. Similarly we do not accept that the proposal sterilises surrounding land and properties under different ownership to the proponent from ongoing agricultural use or development potential as may be available under the Green Wedge Zone.

HAVE FLOODING AND DRAINAGE ISSUES BEEN APPROPRIATELY ADDRESSED?

1. There are two aspects to the issue of this proposal complying with flooding and drainage requirements. Firstly there is compliance with the Broiler Code standard E2 S5 which requires proper design and management of stormwater and / or wastewater management so as to prevent environmental impacts and flooding of the sheds. The second aspect is to address the fact that the site is located in a Land Subject to Inundation Overlay (LSIO), arising from the geographical location within the Koo Wee Rup floodplain.
2. Because the proposal is located in the LSIO, it was referred to Melbourne Water. This agency does not object to the proposal subject to certain conditions being met. Mr Craigie, a hydrologist, was called upon to address these requirements and gave evidence before the Tribunal about the design response.

1. 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.
2. 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.
3. 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.
4. 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.
5. The dam will be sealed using compacted clay or an impervious liner. This will prevent interaction with local groundwater.
6. 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.
7. 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.
8. 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.
9. 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.
10. 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.

1. The parties suggest there is a potential conflict between Melbourne Water's conditions for the dam to capture all hardstand and shed runoff and the Southern Rural Water condition for the dam, which is said to be limited to only containing roof runoff.
2. The specific condition from Southern Rural Water is as follows:

The dam must only be filled from water harvested from the roofs of buildings and from water taken under a take and use licence issued by Southern Rural Water.

1. The context in which this condition is set out is to be found in Southern Rural Water's letter response to the application referral by the Council.[20] In this letter, Southern Rural Water outlines that it understands the dam will be 'primarily filled from the roofs of buildings'. Southern Rural Water recognises that such water is exempt from licensing requirements by way of section 51(ba) of the Water Act 1989. This authority goes on to indicate that water from natural catchment flows and bore water may also be used. Such water use would require licensing in accord with section 51 of the Water Act. Indeed the use of the water from the dam for the purposes of water supply for poultry farming also requires licensing.
2. When viewed in this context and the requirements of the Water Act, we find that the condition is not prohibitive or in conflict with Melbourne Water's requirements. Rather the condition is what may be termed 'an informative' requirement to ensure the proponent is aware of obligations under the Water Act.

WILL THE INCREASE IN TRAFFIC UNREASONABLY AFFECT ROAD SAFETY AND RESIDENT AMENITY?

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.

1. The Council circulated draft permit conditions that have been the subject of considerable analysis and revision, including the substantive work of Ms Blackburn on behalf of the Row's. We do not intend to go through each of these conditions in detail. Suffice to say that we have considered the form of conditions having regard to our reasons and the submissions of the parties and the need to achieve workable and enforceable requirements without unnecessary complexity.
2. As a starting point, we consider it important for the successful operation and co-operation of the future operator, the Council and the community to have a clear understanding of what is required, particularly in terms of the ongoing operation and management of the site. In this respect we find that some suggested conditions would be unnecessarily onerous and 're-invent' requirements that the Broiler Code seeks to have addressed through the proper preparation and implementation of a site specific Environmental Management Plan (EMP).
3. We are also concerned that conditions such as those suggested for controlling chemical use may go beyond Council's jurisdiction. In respect to chemical use, we note that the EMP will contain a list of chemicals to be used in the operation and their material safety data sheets. Use of these chemical should occur in accord with such safety sheets and the EMP. We believe this is sufficient for the purposes of the Council, given the endorsed status of any EMP. Other management and conditions we find to be similarly addressed through the EMP.
4. We note also that a number of permit conditions, such as those proposed by Southern Rural Water about licensing requirements under the Water Act and Melbourne Water conditions about detention are advisory in nature. We have modified such conditions or deleted them. Deleted advisory matters are more appropriate as permit notes and the Responsible Authority may insert these if so desired.

1. The Municipal Strategic Statement of the Cardinia Planning Scheme highlights the importance of agricultural production to the economy and benefit of Victoria. Agricultural production in the shire is said to lie third in economic output, with only the Goulburn and Mallee regions have higher gross values. Vegetable growing and poultry are the largest agricultural activities for this shire. In balancing the need to support ongoing and emerging agricultural production from soil and non-soil based activities, the MSS sets out a strategy to direct activities such as poultry farming into areas of lower soil quality. The area around Catani is one such area.
2. It is in this context that sees strong strategic planning and economic support for this proposal. That does not mean however that the proposal should receive automatic approval. Broiler farms are subject to requirements to minimise potential amenity, environmental and other potential adverse impacts to surrounding communities.
3. The community around Catani has expressed strong reservations about this proposal and the potential for adverse amenity and other impacts, principally that of traffic safety.
4. In our reasons we have set out how this proposal complies with the requirements of the Broiler Code and other planning requirements. We have not found that the concerns raised about amenity or traffic impacts are sustained. Accordingly we will direct Responsible Authority's decision to refuse a planning permit be set aside and direct the grant of a permit that is subject to conditions set out in our order.

The permit allows for the Use and development of the land for the purpose of a broiler farm with a maximum capacity of 350,000 birds and associated infrastructure, including machinery and storage shedding, staff amenity building, water tanks, feed silos and earthworks that includes a dam and a caretakers dwelling in accordance with the endorse plans and permit conditions.

1. 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.
2. The use and development as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.
3. Once the development has started it must be continued and completed to the satisfaction of the Responsible Authority.
4. 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.
5. 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).
6. 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.
7. The use must be undertaken in accordance with the most current version of the endorsed EMP.
8. 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.
9. 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.
10. 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.
11. 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.
12. 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.
13. 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.
14. 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.
15. 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.
16. The broiler sheds hereby permitted may only be used for the accommodation of broiler chickens except with the written consent of the Responsible Authority.
17. Live broiler chickens must be kept and raised within the broiler sheds and must not be allowed in any free range/outdoor area.
18. 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.
19. 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.
20. The poultry sheds and all feed stores must be vermin and bird proof to the satisfaction of the Responsible Authority.
21. 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.
22. 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.
23. Security lighting and / or external floodlighting must be angled, baffled or screened to prevent direct light spill to adjoining land.

1. Construction and post-construction activities associated with the development of the site must be carried out in accordance with Construction Techniques for Sediment Pollution Control (EPA Publication 275).
2. The broiler farm must be designed and operated to ensure that noise emissions from the premises meet the requirements of the Noise from Industry in Regional Victoria guidelines (EPA Publication 1411 dated Oct 2011or as may be amended from time to time).
3. Unless as otherwise provided for under this condition dead birds must be collected and immediately frozen and subsequently removed from the subject land and transported to an appropriate facility as soon as practicable. Dead birds must not be incinerated or buried on-site, except in an emergency situation and with the approval of Council, the Environment Protection Agency and any other relevant authority including the Chief Veterinary Officer (Department of Primary Industries).
4. A secondary containment system in accordance with the Bunding Guidelines (EPA Publication 347, 1992) shall be provided for the storage of liquids, including chemicals and disinfectants, which if spilt are likely to cause pollution or pose an environmental hazard.

1. The dam must only be filled from water harvested from the roofs of buildings, other impervious surfaces and / or from water taken under a take and use licence issued by Southern Rural Water.
2. All works must not interfere with any nearby waterway being a watercourse, drainage line or a natural channel with a regular flow
3. The dams must be lined to prevent interception and storage of groundwater.
4. The dam embankment height must not exceed 5.0 metres above natural surface level.

1. No polluted and / or sediment laden runoff is to be discharged directly or indirectly into Melbourne Water's drains or watercourses.
2. Finished floor levels for all new dwellings must be a minimum of 300 mm above than applicable flood level. (or otherwise 450mm above natural surface levels).
3. The sheds are to be constructed on a clay fill pad that is a minimum of 300mm above the applicable flood level with a further 300mm of freeboard met by flood-proofing measures to the satisfaction of Melbourne Water.
4. An on-site retention dam must be provided that controls runoff from the impervious surfaces within the development. The on-site detention dam must provide for:
   • (a) 900m3 of freeboard storage above full supply level per hectare of catchment area (including the dam area);
   • (b) Freeboard storage of not more than 450mm depth;
   • (c) An outlet from the dam with a controlled discharge rate of not more than 3 l/s per hectare of catchment (including the dam area); and
   • (d) The dam shall be lined with an impervious lining and the freeboard provision should be above the natural surface to avoid possible groundwater problems.
5. No material other than stormwater must be discharged into the drainage system (including the site detention dam). Adequate waste treatment must be provided on site to cater for this requirement.
6. All buildings or dams hereby permitted are to be set back a minimum of 60m from the centreline of any Melbourne Water watercourse.
7. At least 21 days prior to commencement of works, a Site Management Plan detailing pollution and sediment control measures, must be submitted to Melbourne Water.
8. Design drawings and details of the site layout must be submitted to Melbourne Water for comment and approval prior to commencement of any works on site.

1. This permit will expire if one of the following circumstances applies:

1. The development is not started within two years of the date of this permit. 2. The development is not completed within four years of the date of this permit.

1. The use is not commenced within four years of the date of this permit.

The Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires, or within three months afterwards.

[Permit notes may be inserted by the Responsible Authority as required]

[1] Published by the Department of Primary Industries, September 2009.

[2] Clause 35.04 of the Cardinia Planning Scheme.

[3] Schembri v Cardinia SC [2006] VCAT 2042 at [34].

[5] and hence it follows that it is a requirement of a permissible section 2 use under the Green Wedge Zone.

[6] Department of Primary Industries, September 2009.

[7] See section 2 and 4 of the Broiler Code.

[8] Section 4 at page 13 of the Broiler Code.

[9] Ibid; see also page 62 (Definitions) of the Broiler Code.

[10] Section 7 at page 24 of the Broiler Code.

[11] The quoted figure on the plans is 711m, however we have rounded this precision downwards.

[12] Section 5 at page 17 of the Broiler Code.

[13] Section 4, page 13 of the Broiler Code, emphasis retained.

[14] Approved measures E1 M1.1 and M1.2.

[15] This lot is created by a subdivision that is the subject of a separate permit. The affect of that subdivision is to realign existing lot boundaries so the broiler farm would be contained within one lot with 100m setbacks from the lot boundaries.

[16] See Clauses 14.1-1, 21.06 and 21.08 of the Planning Scheme.

[18] Levels are based on the Melbourne Water 200mm survey plans tendered in Mr Craigie's evidence statement.

[19] This area includes the dam, sheds and hardstand areas.