Clause 35.04-1 (GWZ1) use land for the purpose of intensive animal husbandry

Clause 35.04-5 (GWZ1) construct a building or works associated with a section 2 use

Clause 35.04-5 (GWZ1) earthworks which change the rate of flow across a property boundary

The land is located on the northern side of Thwaites Road, Yannathan approximately 900m west of Purvis Road and 1.35 km east of Gardners Road. The land is currently used for grazing purposes and has an existing dwelling.

1. The proposal in this case for a new free range chicken farm is representative of a major change set to occur in the chicken meat industry as producers of chicken meat convert to free range production for the majority of their market.
2. The applicant, Heath Hill Poultry Pty Ltd, already owns and operates a large broiler farm on adjoining land to the east comprising 26 sheds and an estimated 1,040,000 birds (40,000 per shed). The Heath Hill Poultry farm appears to operate under existing use rights.
3. Heath Hill Poultry provides birds to Inghams. Apparently Inghams has plans to convert a high proportion of its chicken meat to free range produced meat to meet market demand. To date, we were told, a substantial number of conversions have either occurred at poultry farms with existing use rights or under planning permits that are pre-introduction of the Victorian Code for Broiler Farms. This will be one of the first purpose built free range poultry farms in Victoria.
4. The key issues that arise in this case, and that will arise in other new permit applications for free range chicken farms, relate to the environmental impact they will have, particularly in respect of dust and odour, and what their separation distance should be from sensitive uses in circumstances where the Victorian Code for Broiler Farms will not apply to set the separation distance.
5. The council refused to grant a permit for the following reasons:
   1. The proposed use and development would have an adverse impact on the amenity and future development potential of surrounding properties, given the limited setbacks available to neighbouring properties.
   2. Insufficient information has been provided in relation to best practice management measures to justify the limited setbacks, and ensure unacceptably adverse amenity issues do not occur.
6. The proposal is also opposed by the Slatterys, who own adjoining land (48.45 hectares) to the west of the subject land. Their land is used as a beef farm and has a house on it, although not permanently occupied at present. They are concerned about the effect of the proposal on their land, such as from dust and vermin, and the effect of odour on the use of the land for a dwelling.
7. Other objections to the proposal were received from Carera Holdings Pty Ltd, which owns and operates a large dairy farm to the north of the subject land. These objections relate to the potential impact on a wetland area of the farm and effect on the amenity of the farm, in particular family and staff residences fronting Yannathan Road.
8. In applying for this proposal, Heath Hill Poultry is responding to market changes. In this respect, the application could be said to support the strategies for sustainable agricultural land use set out in clause 14.01-2 of the Cardinia Planning Scheme to:

Support effective agricultural production and processing infrastructure, rural industry and farm-related retailing and assist genuine farming enterprises to adjust flexibly to market changes.

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

1. Unfortunately, the lack of information provided by Health Hill Poultry that addresses policy outcomes for air quality and amenity means that we are unable to adequately assess whether this free range poultry farm will be consistent with orderly and proper planning and protection of the environment as required by clause 14.01-2.

1. In our view, the issues in this case can be characterised as falling within the two following propositions:
   • Is there sufficient information to assess the potential environmental and amenity impacts of the proposal?
   • What are the applicable planning policies which should be used to assess the proposal?
2. A subsidiary issue arises with respect to a proposed second dwelling/caretaker's house on the land.

IS THERE SUFFICIENT INFORMATION TO ASSESS POTENTIAL IMPACTS?

1. The applicant did not call any evidence. The documentation submitted with the permit application was minimal. The proposed Environment Management Plan (EMP), under which many environmental issues will be handled, is a generic document containing little information specific to the site or proposal. In submissions, the applicant conceded this lack of detail.
2. The Environment Protection Authority (EPA) said in its response to the permit application (dated 21 October 2011):

The Environment Management Plan (EMP) submitted with the application should include more details of the best practice management measures proposed to address the potential environmental impacts of the outdoor range areas. There is a risk of litter accumulation, loss of vegetative cover; nutrient run-off, nutrient build-up in soil; off-site dust impacts; contamination of land and surface waters; and pollution of surface waters, land and groundwater. The EMP should clearly demonstrate to the Council's satisfaction how these impacts will be prevented.

The EMP should also address measures to be implemented to prevent the chicken litter, feed and chemicals discharging beyond the boundary of the premises during flood events.

If a permit is issued, permit conditions should be included requiring that:

• operations at the premises must be conducted in accordance with the EMP, as approved by Council;
• the approved EMP is audited and reviewed periodically to Council's satisfaction; and
• management measures are updated whenever the EMP is reviewed to reflect current research or guidance available at the time on the best practice management of free range broiler farms, particularly in relation to nutrient management for range areas and odour emissions.

1. The applicant played down the effect of the proposal on the environment and adjoining properties. It denied there would be any spray drift from chemicals onto adjoining land. It submitted there is no reason to expect the proposed free range chicken farm will be a source of rats and mice. It submitted there was no evidence or experience that free range chicken farms attract more rats and mice when compared with haysheds or grain silos on dairy farms. Bait stations would be used to ensure that rats and mice do not become a problem.
2. With respect to noise, it was submitted that the total heavy vehicle movements are estimated to be approximately 2,400 movements per annum. This equates to an average of 6 to 7 movements per day for a batch length of 65 days including turnaround. Thwaites Road is a fully constructed main road, which already carries heavy traffic associated with the various rural activities in the area, including the existing Heath Hill Poultry Farm. On this basis, it was put that traffic noise would not have an adverse impact. It was also submitted that noise from exhaust fans and alarms would not be a problem due to distance.
3. With respect to visual impact, it was submitted that the sheds will not be visible from Thwaites Road as they are behind the brow of a small rise in the land. In any event, large farm buildings such as hay sheds are a common feature of the landscape in this active farming area. It was submitted that the proposed sheds will have no relevant visual impact outside the property.
4. With respect to offensive odours, it was submitted that the proposed use is not subject to the setback distances specified in the Victorian Code for Broiler Farms 2009. It complies with the relevant policy document being Recommended Buffer Distances for Industrial Residual Air Emissions AQ2/86, in that there is no dwelling located within the recommended buffer distance of 500 metres. It was implied that this buffer distance is adequate to ensure that no offensive odours would be experienced at any nearby dwellings.
5. Dead birds will be either frozen and removed off site or composted in a suitable facility on the site in accordance with EPA Composting Guidelines. The applicant does not propose to stockpile and/or spread litter from the chicken sheds on the land. In any event, the applicant submitted that poultry litter can be generally spread on any land in the area as fertilizer, without restriction.
6. With respect to dust, it was submitted that the Tribunal has never found that dust is an issue that will cause an unreasonable off site amenity impact in a rural area when dealing with broiler farm cases. To address possible dust from free range areas, each area will be rejuvenated and rested between batches. There are two free range areas attached to each shed. Their use will be alternated from batch to batch to provide for this rejuvenation.
7. With respect to drainage, runoff from the free range chicken farm will drain to a stormwater retarding basin in the north east corner of the site. Under normal conditions all stormwater will be retained in the retarding basin and reused on site for the purpose of providing drinking water to the chickens and water to the evaporative cooling pads. Under storm conditions the retarding basin will retard runoff from a 1:100 year storm event and the outfall is designed to not exceed the runoff rate of the land in its undeveloped state. Based on these design outcomes, it is submitted that runoff from the free range chicken farm will not adversely affect water quality of the surrounding area, in particular the wetlands on the Carera Holdings property to the north.

1. The land is in a Green Wedge Zone where the purpose of the zone is to encourage sustainable farming activities and provide opportunity for a variety of productive agricultural uses. The land in the vicinity of the subject land is presently used for a variety of agricultural purposes. We consider that in principle this is a suitable location for a use such as a free range chicken farm.
2. Although the scale of the sheds will be significant, and they will occupy approximately two thirds of the 48.56 hectare site, we are satisfied that they have been well positioned on the site in terms of minimising visual impact. They are set well back from Thwaites Road and will be largely concealed from the road by a small rise in the land. We consider this is an appropriate location within which to locate large structures associated with this type of use.
3. More information in the permit application about drainage, managing vermin and general farm management would have allayed many concerns about environmental effects and the criticism of the EPA. Were we disposed to grant the permit, we would require much more detailed information to be included in the EMP.
4. However, there are two particular issues about which we lack information that lead us to a conclusion that this permit should not be granted. They are dust and odour.

1. The issue of dust arises in the context that we are not satisfied about how the outside free range areas will function.
2. No evidence has been produced about the state that these areas will be left in at the conclusion of a batch of chickens having had access to it. Whilst a free range area might start the cycle by being fully grassed, chickens will scratch up the grass reducing it in due course to bare earth (depending on the length of time and density of birds). The free range areas will not be a bucolic idyll of open paddocks, but an area 150 metres long by 22.5 metres wide accessible by 40,000 birds for 8 hours per day. We are not in a position to know what state the free range area will be in at the end of each batch; whether it will be a dust bowl or still have patches of grass. Although at the end of each batch, the free range areas will be rotary hoed, fertilized, watered and grass resown for the next agistment of chickens, we do not know if the three months (approximately) period between use will be sufficient to rejuvenate the areas adequately. We do not know what sunlight the areas will receive to facilitate grass regrowth or whether the rate of rejuvenation will vary depending on the season. We are therefore not in a position to form a view about whether dust from the free range areas will be an issue. Until such information is available, we cannot form a view about whether the setbacks proposed for the sheds are adequate.
3. We are not prepared to accept the applicant's assertions that dust will not be a problem and has never been found to be a problem in previous broiler farm cases. Dust from fully enclosed sheds can be expelled via the ventilation systems but it tends to be controlled, which is why it is not found to be a problem**.** Dust from the sheds in the present case may not be a problem, but there is an essential difference with a free range chicken farm in that the chickens will also be outside in free range areas, which have a potential to become dusty. It is not good enough to simply say this is a rural area and hence some dust must be expected.

1. Odour is one of the main complaints about broiler farms. The Advisory Committee, which considered the introduction of the Victorian Code for Broiler Farms, paid considerable attention to the issue of odour in its interim report (March 2000) and its final report (November 2000). The establishment of buffers in the Code was largely tied to the need to control odour emissions.
2. In the present case, no evidence was provided about potential odours from the free range chicken farm. The applicant relied heavily on the fact that the Victorian Code for Broiler Farms does not apply to free range chicken farms. This is acknowledged and we will deal with this issue later. The applicant submitted that the buffer distance of 500 metres was all that was required under the Recommended Buffer Distances for Industrial Residual Air Emissions AQ2/86.[1] However, the applicant's submissions about buffer areas relied simply upon compliance with this standard without any regard to whether the standard was appropriate. There was no information about what odour emissions were likely and what an adequate buffer distance would be in the circumstances, or experience with other like establishments.
3. The applicant submitted that there are substantial differences between a broiler farm and a free range chicken farm. In particular:
   • The stocking rate is lower;
   • The feed does not include antibiotics or antimicrobials;
   • The chickens have access to a free range area 1.5 times the area of the shed for a minimum of 8 hours per day once the birds are fully feathered (usually at 21 days).
   • Opened hatches and side curtains will maintain drier, aerated floor litter.
   • Odour is dispersed over twice that area of a broiler farm of comparable capacity because of the addition of the open range areas.
4. According to the applicant, the odours from free range sheds would be much less than from a broiler farm and hence not require the buffer distances specified in the Victorian Code for Broiler Farms.
5. The applicant says that whilst it has no positive evidence to identify potential off site impacts, there is nothing about the circumstances of this case to indicate that there is a risk of off site odour impacts which would justify any protective measures other than a buffer distance of 500 metres as set out in AQ2/86.
6. Whilst there was discussion at the hearing about the lack of any odour modelling or other odour evidence, we were left with the clear impression that this has not been provided because it is too hard.
7. We were told that the Queensland Government is undertaking a study into free range chicken farms with respect to odour emissions and nutrient management, however the project will not be completed until January 2013.
8. We accept that there are differences between a free range chicken farm and a broiler farm, which means that the standards for a broiler farm are not necessarily appropriate to be applied to a free range chicken farm because the odour emissions may be different.
9. The applicant highlighted differences between a free range chicken farm and a broiler farm and we have included a copy of the applicant's summary of comparisons in Appendix A. However, although there are differences, for a large part of the batch cycle there will also be many similarities between a free range chicken farm and a broiler farm. For example:
   • Birds are kept inside for the first 21 days of the cycle until fully feathered. A cycle is approximately 55 days. Therefore, for 38% of the cycle a free range chicken farm will be the same as a broiler farm except for a reduced density (15.7 birds per square metre in a free range shed compared to 19.57 birds per square metre in a broiler shed).
   • After 21 days, birds are allowed access to the range area during daylight hours but not during adverse weather (storm, high/low temperature, rain etc). Leaving aside adverse weather, birds will be kept inside the sheds for two thirds of each day. This is the equivalent of an additional 23 days being kept entirely indoors. Thus, out of a 55 day cycle, the birds will be kept entirely inside for the equivalent of 44 of those days or 80% of the time.
10. The Victorian Code for Broiler Farms specifically does not apply to free range chicken farms and has not done so since it was first introduced in 2001. In the Victorian Code for Best Practice Broiler Chicken Farms Final Report of the Advisory Committee (November 2000), the Advisory Committee accepted the rationale for limiting the Code to broiler farms at this stage because of:
    • the high growth rate of the broiler industry, compared to other poultry sectors;
    • the scale of broiler farm expansion and investment;
    • significance of current planning problems in the broiler industry;
    • broiler production systems are well standardised and amenable to a 'general' code;
    • diversity and inconsistency of systems for raising other forms of poultry would lead to undesirable complexity in the Code.[2]
11. Nevertheless, the Advisory Committee said with respect to free range broiler farming:

Unfortunately, the Code Committee has failed to address the issue of 'free-range methods' of broiler farming in any way. The draft Code specifically states that it 'does not apply to the operation of farms established for the rearing of chickens under free-range conditions...' Yet evidence given at the hearing indicates that some chickens identified by the industry as 'free-range' may be raised in effectively the same intensive conditions, and have the same potential for the same off-site environmental impacts. Such farms should clearly come under the Code.

If free-range chicken farming is excluded from the Code but not defined, it would be open for growers to argue they should be exempt from the Code even though their farms are essentially the same as an 'intensive' broiler farm. A definition of what constitutes 'free-range methods of farming' is therefore essential to remove any doubt about what the Code is intended to cover.[3]

1. The Advisory Committee recommended that a definition of 'free-range methods of farming' must be included in the Code. The Advisory Committee then went on:

The definition of 'free-range' developed for the purposes of the Code needs to identify the point at which the adverse impact of intensive farming (especially odour emissions) is reduced to such an extent that the Code's minimum buffer and separation distances could no longer reasonably be applied. This point is likely to be related to the bird density and the time spent inside and outside the shed.

This is not to say that genuine 'free range' farms do not have environmental problems. Groundwater contamination and nutrient run-off as well as dust, noise and odour are issues that would require careful assessment. However, the standards against which they are assessed should be specific to such farms, and these standards are not addressed in the Code.

The definition adopted in the Code should ensure that those forms of 'free range' farming that include a significant component of intensive farming are required to comply with the Code. ...[4]

1. These aspects of the Advisory Committee's recommendations were not incorporated in the Code.
2. More recently, the Department of Planning and Community Development (DPCD) has prepared a draft practice note Applying for a planning permit for farming for the production of chicken meat in Victoria. This includes Part D, "Application for a planning permit for a new free range chicken meat farm - Intensive animal husbandry". The following is an extract from this part of the draft practice note:

A free-range chicken meat farm shares many of the siting, farm design and operation requirements as a Broiler farm. The Broiler Code does not apply to the establishment of a new free-range chicken meat farm however applicants and responsible authorities will find it helpful to refer to the Broiler Code to assist in preparing, considering and deciding an application for planning permit. The six elements of the Broiler Code and the objectives of these elements may be relevant to a free range proposal. An application for Intensive animal husbandry (a free-range chicken meat farm) should demonstrate how the objectives are met based on the nature of the proposal.

There are no boundary buffer or separation distance requirements established for an Intensive animal husbandry proposal (a free-range chicken meat farm). The boundary setbacks and separation distances in the Broiler Code can be used as a guide for free-range operations to establish location, siting and size of chicken sheds as outlined in Element 1 (E1) of the Broiler Code[5]. However these are not mandatory. Setback and separation distances in the Broiler Code should not be considered as the default position for comparable sized free range farm. The approach should be that where a boundary setback or separation distance is proposed which is less than what is specified in the Broiler Code for a comparable sized Broiler farm, an applicant should demonstrate and justify that any reduced distance is adequate and will provide acceptable levels of amenity protection. This will need to be demonstrated and justified on a proposal by proposal basis. [Tribunal emphasis]

1. We are conscious that this is no more than a draft practice note.[6] Nevertheless, it is relevant to note that it embodies the principal that if Code buffers are to be departed from, then there is need to establish an evidentiary basis for doing so.
2. We consider the current proposal is a reasonably intensive free range chicken farm based on the features we have outlined above. Having regard to this and the general principal reflected in the draft practice note that there should be an evidentiary basis for proposing a buffer less than the Code, we are not prepared to grant a permit for this proposal in the absence of any evidence about odour to support the proposed setbacks, in particular to the Slattery property.
3. We will now consider the buffer distances that are proposed and the relevant policy framework regarding odour, which we consider supports our position.

1. A key issue we need to address is the applicable planning policies by which to assess this proposal.
2. We accept that there are a range of planning policies which support this proposal, including clause 14.01-2 about assisting general farming enterprises to adjust flexibly to market changes and facilitating the establishment and expansion of poultry farms in a manner consistent with orderly and proper planning and protection of the environment, which we have referred to earlier.
3. However, support for the proposal within the policy framework is not unconstrained. Clause 14.01-2 refers to establishment and expansion of intensive animal industries "in a manner consistent with orderly and proper planning and protection of the environment". Clause 13.04-2 requires that wherever possible, there is suitable separation between land uses that reduce amenity and sensitive land uses. It requires that planning must consider as relevant:
   • State Environment Protection Policy (Air Quality Management).
   • Recommended Buffer Distances for Industrial Residual Air Emissions (Environmental Protection Authority, 1990) in assessing the separation between land uses that reduce amenity and sensitive land uses.
4. There are also various aspects of the local planning policy framework which are relevant, in particular clause 21.04-2 Agriculture. Strategies within this clause include:

• Ensure that any agricultural development proposal is appropriately located in terms of buffer distances of surrounding uses.
• Provide for the establishment of intensive agricultural activities (eg: poultry farms and green houses) in a location and manner which minimises the impact on nearby residents and the environment.

1. The implementation section of clause 21.04-2 requires:
   • An assessment in relation to the buffer distances in the EPA publication AQ 2/86 - Recommended Buffer Distances for Industrial Residual Air Emissions and any relevant code of practice for the agricultural activity.
2. We will deal with the implications of both State Environment Protection Policy (Air Quality Management) [SEPP AQM] and publication AQ2/86 - Recommended Buffer Distances for Industrial Residual Air Emissions [AQ2/86] in turn, but first we need to address the Victorian Code for Broiler Farms 2009 [the Code].

1. There is no dispute that the Victorian Code for Broiler Farms 2009 is not applicable to this proposal. Broiler farm is defined in the planning scheme as:

Land used to keep broiler chickens which are housed permanently in sheds and reared for meat production.

1. With a free range chicken farm, birds are not kept permanently in sheds. In addition, the Code explicitly states that it does not apply to chickens for meat production where the chickens have access to an outdoor range and an indoor shelter (free range).[7]
2. The use of land for a free range chicken farm falls within the definition of intensive animal industry in the planning scheme, which is a section 2 use in the Green Wedge Zone. Intensive animal husbandry is defined as:

Land used to keep or breed farm animals, including birds, by importing most food from outside the enclosures.

1. Whilst the Code is not applicable to this proposal, we consider it is still relevant to compare the buffer distances that would be applicable under the Code to those which are proposed and to those which the applicant says are applicable, namely 500m to a sensitive land use pursuant to AQ2/86.
2. The nearest sensitive land use in the present case is the house on the Slatterys' land. The Slatterys' land and the subject land are of similar size and dimensions. Both are long and narrow and in excess of 40 ha. The house on the Slatterys' land is a modest weatherboard located close to Thwaites Road. It is 667m from the nearest shed on the subject land. The house is in need of renovation and no longer has electricity connected, but it is still in habitable condition and is used for accommodation on a regular basis by the Slatterys in conjunction with the agricultural use of their land.
3. Whilst we make no definitive finding, we consider the house could be characterised as a caretakers house or alternatively as accommodation. We acknowledge there may be some issue about whether the house on the Slatterys land has existing use rights as a dwelling. If it does not have such existing use rights, it may need a permit under the Green Wedge Zone to again use the land for a dwelling. However, the size of the Slatterys' land is greater than 40 ha and, given the existence of the house on the land, it is not unreasonable to expect that a permit may be granted to use the land for a dwelling in the future (if one was needed). We therefore consider that it is relevant to consider the effects of any emissions from the proposed use in terms of dust or odour on the Slatterys' house as a dwelling[8].
4. The Slatterys' house is the closest house to the proposed sheds, with the next closest house being on the south side of Thwaites Road 714m away. There are no houses within 500m of any of the proposed sheds. If the Code was applicable, the sheds would need to be set back approximately 760m from the nearest house based on a Class A or B farm classification. In addition, sheds would need to be set back 100m from boundaries. In the proposal they are set back only 55m. Further, there would be a requirement that not more than 50% of adjoining land be covered by setbacks. This figure is well exceeded in the case of the Slatterys' land with virtually the whole of their land being covered by the Code separation distance. However if the free range chicken farm was to be classified and considered under the Code, an Odour Environmental Risk Assessment would be required because it would be part of a farm cluster.

1. Clause 13.04-2 of the Cardinia Planning Scheme addresses risks to air quality. It is State policy for planning to assist in the protection of air quality. Appropriate separation between sensitive land use and land use that has potential amenity impacts is a key strategy to achieve this outcome. Consideration is to be given to SEPP AQM and to AQ 2/86. The latter provides guidance in the assessment of buffer distances as distinct from separation distances, a distinction raised in the Slattery submission, which we consider later.
2. The applicant has relied on the factors set out earlier about the difference between a broiler farm and free range poultry meat farm and compliance with the recommended buffer distance under AQ 2/86 to support its position that potential odour impacts are addressed.
3. The Slatterys submitted that AQ 2/86 should be given limited weight for a range of reasons about its status as a reference document and its lesser status in comparison to the SEPP AQM and the hierarchy of statutory documentation directed toward controlling air emissions.
4. Notwithstanding these and other matters about the usefulness or efficacy of AQ 2/86 that have been raised, it is state policy to consider AQ 2/86 "in assessing the separation between land uses that reduce amenity and sensitive land uses".[9] Further, Clause 17 of the SEPP AQM requires the EPA to "develop a protocol for environmental management ... on the provision of separation distances...." While AQ 2/86 precedes the current version of the SEPP AQM, we take the guidance under AQ 2/86 to be at least consistent with such a protocol. We also recognise that, given its date and manner of formulation, strict application of AQ 2/86 presents some difficulties. The reasons of the Tribunal in the Reachy proceeding[10] addressed such matters and we see no need to make further comments on these aspects of the guideline.
5. In applying AQ 2/86 to this proposal, we observe that the role of the recommended buffer distances is not to accommodate routine emissions of dust or odour but to deal with residual fugitive emissions that might arise after in-house emission controls, including application of best management practices, are applied.
6. The role of a buffer distance under AQ 2/86 is distinguishable from the separation distance determined under the Code, which is designed "to minimise the risk of routine and abnormal odour and dust emissions".[11] Nor is the application of the buffer distance a substitute for an odour emissions risk assessment in accord with the SEPP AQM.
7. The applicant's submissions have sought to distinguish differences between broiler farms and the free range proposal. The buffer distance of AQ 2/86 refers only to poultry meat farms. It does not draw any distinction as to what form of farm that might be.
8. We acknowledge that the application of AQ 2/86 buffer distances calls for consideration of a range of matters to be taken into account in applying the buffer distances. Apart from land uses, such matters include receptor-emitter considerations, including how much a buffer distance may extend over the receptor's property, land use planning and whether the site conditions may depart significantly from the underlying assumptions made in determining the AQ 2/86 buffer recommendations. The latter include the size of the facility, meteorological effects and site management and operational regimes.
9. In part, the applicant's submissions might be seen to have been addressing some of these matters. However we were not presented with an independent, objective assessment of these and other relevant influences. Rather, we were told the adoption of the 500m was an appropriate buffer distance in conjunction with assurances about how the EMP would manage emissions. Having regard to the requirements of AQ 2/86, whatever its foibles, this is insufficient.
10. We are thus not persuaded by the submissions for the applicant that locating the free range chicken farm such that no sensitive land uses lie within the 500m buffer distance equates to an acceptable addressing of the potential for odour amenity impacts.

1. Apart from it being policy to consider the SEPP AQM under clause 13.04-2, we are required to consider and give effect to this policy under section 84B(2)(e) Planning and Environment Act 1987. Section 84B(2)(e) provides that in determining an application for review the Tribunal:

(e) must take account of and give effect to any relevant State environment protection policy declared in any Order made by the Governor in Council under section 16 of the Environment Protection Act 1970;

1. The obligation to take account of and give effect to the SEPP AQM reflects the general statutory framework regarding SEPPs.
2. Under section 60(1A)(f) of the Planning and Environment Act 1987, a responsible authority, if the circumstances appear to so require, may consider any relevant SEPP. However, once it is established that the circumstances are relevant, which we find they are in this case, a responsible authority is bound to consider a relevant SEPP. It is not a situation where the responsible authority has a discretion not to consider it or to choose not to apply it.[12]
3. The Environment Protection Act 1970, under which a State Environment Protection Policy is prepared, requires compliance with a SEPP. Thus in respect of clear air, section 40 of the Environment Protection Act 1970 provides:
   1. Discharges etc. to comply with policy

The discharge or emission of wastes into the atmosphere shall at all times be in accordance with declared State environment protection policy or waste management policy specifying acceptable conditions for discharging or emitting wastes into the atmosphere and shall comply with any standards prescribed therefor under this Act.

1. Under section 41 of this Act, a person shall not pollute the atmosphere so that the condition of the atmosphere is so changed as to make or be reasonably expected to make the atmosphere "offensive to the senses of human beings".
2. Further, the attainment program of SEPP AQMrequires a responsible planning authority (a defined protection agency under the SEPP), to "apply the principles and pursue the aims of and intent of the policy". There should be no dispute therefore that the SEPP AQM is directly relevant to the decision to be made under this application and consequently the applicant must address the principles, intent and other requirements of this SEPP.
3. The applicant's case in response appears to be twofold. One is that there is insufficient data available about odour emission rates to undertake an odour modelling and risk assessment that would be consistent with the methodologies outlined in Schedule C of the SEPP AQM. The other is that even if the SEPP AQM approach was able to be undertaken, the odour criterion is too stringent for poultry meat production, a fact recognised in previous Tribunal matters[13], which in part is a reason why the Code applies less stringent odour criteria.
4. Under the SEPP AQM, odour is an unclassified indicator with a design criterion to be applied at the boundary of 1 Odour Unit (OU). Note 9 of Schedule A provides, however, for a set of integrated criteria to be applied to intensive animal husbandry as follows:

For industries involving intensive animal husbandry, an integrated set of criteria may be applied to ensure beneficial uses are protected.

• Location in an area with a low density of sensitive land uses. That is, premises must be located in a rural zone;
• The location is consistent with integrated land use planning considerations such as the long term future of the surrounding land and the likely use of the intervening land between the proposal and sensitive uses;
• Works designed in accordance with a set of industry performance standards approved by the relevant authorities;
• operations conducted in accordance with an environmental management plan (EMP) approved by the relevant authorities; and
• completion of a risk assessment that includes modelling of emissions showing that the predicted maximum odour levels modelled in accordance with Schedule C do not exceed five times the odour detection threshold (3-minute averaging time, 99.9 percentile) at and beyond the property boundary.

1. We note that the first two parts of these integrated criteria can be more or less deduced from the applicant's material, although the submissions did not explicitly seek to do so. While the applicant seeks to avoid reliance on the Code, we observe that many of the design elements that would be consistent with the Code are adopted for this proposal, not least of these being the use of tunnel ventilation shed arrangements, which would operate similar to a broiler farm during the first 21 days of a batch and thereafter when chickens do not access range areas.
2. In terms of an EMP, we have already commented on the inadequacy of that which accompanied the application, although this could be remedied
3. This leads us to consider the matter of a risk assessment supported through the use of emissions modelling.
4. Such a modelling exercise was strenuously resisted by the applicant because of the lack of odour emission rates. It was also submitted that there would be no point in modelling the early 21 day stage of housing chickens, as this was generally accepted as a period of low emissions during broiler farm operations.
5. The latter may be true in terms of this presenting the lower scale of odour impact risks for a broiler farm. However the benefit to this application of such modelling (or an attempted quantification of impacts) would have been a comparative assessment of the impact during this period of the batch cycle and quantification of odour risks.
6. Similarly, quantification of other periods where the sheds operate akin to broiler mode, such as extended periods of warm or cold weather, would also provide a quantification of potential impacts from normal and irregular operations.
7. In response to issues raised about the more stringent criteria of the SEPP AQM raised by the applicant, including the use of the 99.9 percentile or 9th highest odour emission, we take the view that guidance as set out in the Code for a risk assessment would, as was suggested by the EPA in its response, prove useful.[14] It seems to us that the EPA's response indicates a preparedness to depart from aspects of the Schedule C 99.9 percentile requirement provided this was done so in a methodical way consistent with the Code.
8. That said, it is not for the Tribunal to design or detail how a practitioner might prepare an emissions model based risk assessment. It seems to us though that even in the absence of specific odour emission rates for open range areas, a competent practitioner could model and assess potential odour impacts and necessary separation distances for some more phases of the type of free range operation proposed here.
9. It is also apparent that while the Code is not strictly applicable, the parallels between this form of free range chicken meat farming and broiler shed farming are sufficient to form a starting point from which an assessment of indicative separation distances could be made. We reject the notion put to us that this intensive animal husbandry is so different it is akin to comparing cattle or other intensive farming with the particularities of broiler farms.
10. Our conclusion with respect to odour is that the failure of this application to even attempt a first pass address of the SEPP AQM gives rise to legitimate concern about the uncertainty of potential odour emission impacts to surrounding properties, not least being the Slattery land. We are not satisfied that the SEPP AQM has been properly addressed as required by both statute and policy. We are therefore not prepared to grant a permit in circumstances where we lack any information about such a critical impact on amenity and on the environment by odour.

1. At the commencement of the hearing, the applicant applied to amend the permit application by amending plans, but not the use applied for, to include a manager's dwelling. The applicant says that the manager's dwelling is ancillary to the use applied for, which is for two free range chicken farms.
2. There is an existing dwelling on the land. In the Green Wedge Zone, dwelling is a section 2 use subject to the condition that it must be the only dwelling on the lot. It is therefore not possible to obtain a permit for an additional dwelling on the subject land. However, the applicant says that the primary use of the land is for two free range chicken farms and that a manager's residence is ancillary to each of the free range chicken farms. As an ancillary use, a separate permit is not required for the additional dwelling.
3. We do not accept this proposition. First, we do not accept that the use of the land should be characterised as being for two free range chicken farms. The proposed use of the land is for intensive animal husbandry. If the applicant chooses to manage the use of the land as two separate units or farms (in the event of a permit being granted), it is open to the applicant to do so. However, in our view, that does not change the characterisation of what the land is being used for.
4. Second, we do not accept that a manager's residence is ancillary to the primary use of intensive animal husbandry. We accept that a caretakers house may be required in conjunction with use of land for the purpose of intensive animal husbandry in the form of a free range chicken farm. However, caretakers house is a separate use defined in the planning scheme it means:

A dwelling on the same site as a building, operation, or plant, and occupied by a supervisor of that building, operation, or plant.

1. Caretakers house is included in the definition of dwelling.[15] As such, caretakers house is subject to the same condition as dwelling within the Green Wedge Zone, namely that there can be only one dwelling on the lot.
2. Therefore, although we are not prepared to grant a permit in this case, even if we were, we would not approve an additional manager's residence.

1. When free range chicken farms were excluded from the Victorian Code for Broiler Farms when it was first introduced, part of the rationale was that the broiler industry was experiencing a high rate of growth but facing numerous planning problems. There was a need to deal with the broiler industry and its problems, although it was foreshadowed by the Advisory Committee that free range broiler farming also should be defined and controlled. It suggested that "those forms of 'free range' farming that include a significant component of intensive farming [should be] required to comply with the Code." Whilst that has not occurred, the DPCD draft practice note suggests that some aspects of the Code may be relevant to a free range proposal. With respect to boundary setbacks or separation distances, the draft practice note suggests that when they are less than what is proposed in the Code for a comparable sized broiler farm, an applicant should demonstrate and justify that any reduced distance is adequate and will provide acceptable levels of amenity protection.
2. We are not suggesting that the Code boundary setbacks or separation distances should be adopted in this particular case. Rather, we are saying that in the absence of any evidence about risk assessment or the impact of this proposal on beneficial uses and the appropriateness of those impacts, based on the requirements of SEPP (AQM) and AQ 2/86, we are not persuaded that the setbacks and separation distance from the Slatterys' house and land are satisfactory.
3. Whereas the broiler industry was in a growth phase when the Code was introduced in 2001, today it appears that the free range chicken meat industry is about to enter a growth phase. We are told that this is the first application for a new free range chicken farm rather than a conversion of an existing broiler farm. This case has demonstrated that if there is to be responsible growth in the free range chicken meat industry involving the establishment of new free range chicken farms, the industry needs to support farmers with the appropriate evidentiary basis to ensure that new free range chicken farms are established in appropriate locations, meet appropriate standards and are set back appropriate distances to avoid adverse amenity effects.
4. A sound evidentiary basis is required to demonstrate that the establishment and extension of intensive animal industries, such as free range poultry farms, can be undertaken in a manner consistent with orderly and proper planning and protection of the environment as required by the State Planning Policy in clause 13.04-2. Providing such an evidentiary basis will assist in the implementation of the other strategy set out in clause 14.01-2 to support effective agricultural production and assist genuine farming enterprises to adjust flexibly to market changes. An industry wide approach is preferable to the onus falling on individual applicants in each case, with the added costs and potential disparities in the quality of evidence and outcomes that may result.
5. So far as the present applicant is concerned, it may be that the subject land is suitable for the proposed use, but more information is required to support the proposal. This was essentially the position adopted by the council when it refused to grant this permit. It is a position we agree with for the reasons we have set out. Accordingly, no permit is granted.

[1] Publication AQ 2/86 1, Environmental Protection Authority, 1990

[5] Boundary setback and separation distance requirements will be reviewed if, and when specific requirement are determined as an outcome of research.

[6] Cardinia Shire Council made a submission to DPCD about the draft practice note, which was critical about the lack of detail in it.

[7] Victorian Code for Broiler Farms 2009 page 10

[8] The definition of dwelling includes a caretakers house

[10] Reachy v Geelong CC [2011] VCAT 1202 at [32] to [41].

[11] Section 5 Victorian Code for Broiler Farms 2009

[12] Whitehorse CC v Golden Ridge Investments Pty Ltd (2005) VPR 274; [2005] VSCA 198 at [41]: Rozen v Macedon Ranges SC [2010] VSC 583 at [61]

[13] As discussed in Lemic v Colac Otway SC [209] VCAT 1637 and Krusic-Golub v Golden Plain Shire [2006] VCAT 255.

[14] In this respect, the EPA said in its response to council:

The Victorian Code for Broiler Farms 2009 does not appy to permit applications for the development of free range chicken farms for meat production, where the chickens have access to an outdoor range and an indoor shelter.

EPA notes that the proposed free range broiler farm is for 480,000 birds to be housed in 12 sheds (40,000 birds/shed) at a density of 15.6 birds/m2. During daylight hours, the birds will be ab le to move outside into fenced grassed areas. Having regard to the number and density of birds proosed to be housed in the sheds and the potential for odour emissions, EPA suggests that Council may find it helpful to consider the design, siting, operation and environmental management requirements of the Code when assessing this application.

Information regarding the location of any nearby dwellings or sensitie land uses is not provided with this application. If Council is concerned about the boundary setbacks or separation distance proposed, consideration should be given to whether the applicant has demonstrated that the reduced distance and the design and management measures proposed are sufficient to protect the amenity of nearby residents. [Tribunal emphasis]

[15] See clause 74 and Nesting Diagram for Accommodation Group in clause 75.01 Cardinia Planning Scheme