[2006] VCAT 255

1 The application for review is disallowed. The decisions of the Responsible Authority dated 23 September 2005 and 13 October 2005 are varied. A separate permit is granted for the use and development for a broiler farm for 320,000 birds on each of the following:

Lot 1 PS 444823B

Lot 4 PS 444823B

Lot 2 PS 546329R

Lot 3 PS 546329R.

2 The Responsible Authority is directed pursuant to Section 85 (b) (ii) Planning and Environment Act 1987 to grant permits in accordance with the order above, each permit being subject to the following conditions except where specified:

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

a.

The development and use are not started within two years of the date of this permit.

b.

The development is not completed 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.

2 The use must not commence until the subdivision permitted by Planning Permit P05-212 has been lodged and registered with Land Victoria. [NB. This condition to apply only to any permit(s) the Tribunal directs is / are to issue in respect of the land forming part of Crown Allotment 6]

3 Before the use and / or development starts, the following documents to the satisfaction of the Responsible Authority must be submitted to the Responsible Authority for approval and be approved by the Responsible Authority:

3.1 Amended plans which must be drawn to scale and with dimensions. Three copies must be provided. The plans must be generally in accordance with the amended plans submitted by the permit applicant on 28 November 2005 but modified to show:

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silos;

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tanks for the storage of water and gas;

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utility shed;

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provision for the temporary storage of bird litter pending removal from the site.

3.1.2 location, dimensions and specifications of stacks at a height of 5 metre above natural ground level to be fitted to duty fans (i.e. the fans that supply ventilation to the sheds at times when cooling is not required);

3.1.3 the type, specifications and location of all external flood and security lighting to be used including provision for light baffling to ensure all light is contained within the property boundary;

3.1.4 stormwater, wetland treatment pond and other drainage;

3.1.6 a set back of all infrastructure on the site from any defined watercourse(s) on or in the proximity of the site of not less than 30 metres; and

3.1.7 location, dimension and specifications of any dams to be constructed on site.

3.2 Amended Environmental Management Plan (EMP) which must be site specific and must address the potential impact on waterways during the construction phase and incorporate measures to control the quality of surface water leaving the site during both the construction and operation phase of the broiler farm such that no unacceptable impact occurs to the surrounding drainage system and waterways. The EMP must also contain:

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measures which provide for the rehabilitation of Stoney Creek and for its on going maintenance;

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a mechanism for recording resident complaints of perceived adverse impact including from road traffic noise from vehicles accessing the site and measures to identify the vehicles complained of;

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a telephone number that is generally available for recording residents' complaints.

3.3 Water Use And Re-use Plan addressing stormwater, rainwater and reticulated water use and re-use issues including a plan for the management, in accordance with the recommendations set out in the Geolyse Pty Ltd proposal dated January 2006, of areas from which water is proposed to be harvested. The plan must also detail arrangements for the provision on site of an emergency water supply;

3.4 Amended Landscape Plan which must be site specific and have due regard to the visual impact of the sheds and other buildings, including consideration of bunding and mounding. The Landscape Plan must show the location and type of all proposed screen and other plantings and landscaping, anticipated tree or shrub height and width at maturity, timetables for plantings and arrangements for maintenance of the landscaped areas. All trees and shrubs included in the Landscape Plan must be indigenous to the locality.

When approved, the Landscape Plan will be endorsed by the Responsible Authority and will then form part of this permit.

3.5 No Permit Document may be amended without the written consent of the Responsible Authority.

4 The layout of the site and the size of the building and works, as shown on the endorsed plans, must not be altered or modified without the consent in writing of the Responsible Authority.

5 The use and development approved by this permit must at all times be conducted in accordance with requirements of:

5.1 the Victorian Code for Broiler Farms (September 2001) (as amended) ("the Broiler Code");

5.2 the Code for Accepted Farming Practice for the Welfare of Poultry (December 2003) (as amended); and

6 The poultry sheds must be designed and constructed using a tunnel-vented exhaust system incorporating 5 metre duty stacks or such other alternative technology which complies with the requirements of the Broiler Code, to the satisfaction of the Responsible Authority.

7 All trees and shrubs included in the endorsed Landscape Plan must be planted prior to the completion of the development or within six months of the commencement of the use whichever is the earlier, and must thereafter be maintained to the satisfaction of the Responsible Authority.

8 Prior to the commencement of any works pursuant to this permit the permit holder must lodge a landscape performance bond with the Responsible Authority. The bond can be either a monetary contribution or an irrevocable bank guarantee in favour of the Responsible Authority. The bond is to be based on the endorsed Landscape Plan with additional details to be provided to the satisfaction of the Responsible Authority incorporating:

8.1 an estimate of the quantity and type of materials, watering equipment, plants, etc required; and

8.2 a quotation from a reputable nursery supplier for the implementation of the Landscape Plan identifying the cost for materials, plants and labour. The quotation is to be independently verified to Responsible Authority's satisfaction.

The bond is to comprise the verified quotation plus a 10% margin for unforeseen costs. When the landscape works are complete to the satisfaction of the Responsible Authority, 85% of the bond will be released. The balance is to be retained as a maintenance bond for a period of three (3) years following the date of release of the 85%. If the landscaping has not been maintained to the Responsible Authority's satisfaction at the end of the three years the maintenance bond is to be applied to upgrade the landscaping.

9 The permit holder must prepare and submit to the Responsible Authority a Fire Prevention Plan for approval by the Responsible Authority prior to the commencement of the use hereby permitted. Such plan, when approved, shall be endorsed and form part of this permit.

10 No advertising sign shall be located on any part of the site unless it conforms with the provisions of the Golden Plains Planning Scheme.

11 Any dam shall be constructed by a suitably qualified and experienced contractor in accordance with Southern Rural Water's guidelines for dam construction and maintained to the satisfaction of the Responsible Authority.

12 All bird litter must be removed from the site as soon as possible after it is removed from the sheds. Any bird litter temporarily stored on site pending off site removal must be stored within the designated storage area shown on the endorsed plans constructed for that purpose. All trucks removing litter from the site must have covered loads.

13 No bird litter may be spread or otherwise disposed on the site.

14 The removal of dry bird litter from the sheds by use of machinery must occur between the hours of 7.00 am and 8.00 pm only and no removal may be undertaken on Sundays and Public Holidays including Christmas Day and Good Friday.

15 The permit holder must dispose of dead birds off site using a contractor specialising in this type of disposal or in an alternative manner to the satisfaction of the Responsible Authority. Pending collection for off site disposal, dead birds must be held in sealed refrigerated containers or otherwise as approved by the Responsible Authority.

16 The use authorised by this permit must be operated as a dry litter poultry operation only and the provision for the collection and disposal of solid wastes and for the collection, treatment and disposal of any liquid wastes to arise from the development and use hereby permitted must comply with all applicable laws and regulations.

17 If the Responsible Authority determines that the amenity of nearby residents is adversely affected in the emission of an unreasonable level of odour from the site the permit holder must immediately and to the satisfaction of the Responsible Authority take such action as is required to prevent those emissions, which may include adjusting stocking density in the sheds, removing litter immediately, or any other actions reasonably required to rectify the emission of offensive odour.

18 The poultry sheds and all feed stores must be vermin and bird proof to the satisfaction of the Responsible Authority.

19 The manner of discharge of all water from the site must be to the satisfaction of the Responsible Authority.

20 Other than the loading and placement of live birds, no deliveries to or removals from the site must take place after 8.00 pm or before 7.00 am on any day without the prior written approval of the Responsible Authority.

21 The permit holder shall require that all contractors and suppliers accessing the site from the Midland Highway do so by way of Tall Tree Road, Laird Road and Lower Plains Road. The permit holder must use its best endeavours to ensure that no truck traffic uses Russell Street, Lethbridge to access the site.

22 The loading and unloading of vehicles and the delivery of goods to and from the premises must at all times be carried on entirely within the site.

23 The surface of the car parking and loading areas and access lanes must be constructed and maintained to the satisfaction of the Responsible Authority to prevent dust and drainage run-off.

24 The driveway entrance on Tall Tree Road shall be designed in accordance with AS 2890.2 - 2002 and shall be properly maintained to the satisfaction of the responsible authority.

25 Security lighting or external floodlighting (if required) must be installed in such a manner that it does not create amenity problems outside the site.

26 All vehicles used in the delivery, pick-up and transportation of live birds must be fitted with high performance sound-reducing mufflers to the satisfaction of the Responsible Authority and the permit holder must use its best endeavours to ensure that such activities do not cause any unreasonable noise impact on the amenity of the surrounding area.

27 The permit holder must use its best endeavours to avoid sanitising sheds with odorous chemicals which give rise to offensive odours being detectible off site. Airborne sprays or chemical odours must not be transmitted beyond the site to the detriment of any person to the satisfaction of the Responsible Authority.

28 All walls of the poultry sheds and other buildings hereby permitted which will be visible from beyond the site must be coloured or painted in non-reflective muted tones to the satisfaction of the Responsible Authority.

29 All goods and materials must be stored out of view or so as not to be unsightly when viewed from nearby roads to the satisfaction of the Responsible Authority.

30 Prior to the commencement of the development permitted by this permit, the permit holder must enter into an agreement pursuant to section 173 of the Planning and Environment Act 1987:

30.1 with the Responsible Authority and Barwon Region Water Authority ("Barwon Water") (on terms satisfactory to the Responsible Authority and Barwon Water). This agreement must provide for a centralised potable water storage facility to be established to serve the development authorised by this permit and the broiler farm developments authorised by ... [insert details of any other permit(s) the Tribunal direct is / are to issue] (together, "the Tall Tree Rd Farms"). The agreement shall provide for the taking of up to 68 ML per annum (or such other amount permitted by Barwon Water) during periods where the taking of water will not adversely impact the supply of water to other water users in the vicinity of the Tall Tree Road Farms or the Lethbridge township. The agreement shall provide an appropriate mechanism for the operation and maintenance of the storage facility to provide for an equitable sharing of potable water by the Tall Tree Road Farms in accordance with the recommendations set out in the report of Geolyse Pty Ltd dated January 2006; and

30.2 with the Responsible Authority (on terms satisfactory to the Responsible Authority) which provides for:

30.2.1 the permit holder to contribute 25% toward the cost of the upgrading of Tall Tree Road and Laird Road including the upgrade of:

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the gravel section of Laird Road from Lower Plains Road to Clarkes Road to provide a 6.2 metre wide sealed road with unsealed shoulders; and

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the sealed section of Laird Road and Tall Tree Road south from Clarkes Road to the entrance west of the floodway to provide full depth gravel shoulders,

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if required by the responsible authority the permit applicant shall also seal the shoulders of Tall Tree Road at its intersection with Hawkins Road

such upgrade works to be completed by no later than the date of commencement of the use. For the removal of doubt, if at the time an obligation to pay an amount under this condition arises the permit holder also holds a permit or permits in respect of the use and development of any of the other Tall Tree Road Farms for the purpose of a broiler farm, nothing in this condition will limit the permit holder's obligation to make a separate, further 25% contribution in relation to each such farm.

31 Before the development commences, an application must be made to the Registrar of Titles to register the agreements referred to in condition 30 on the title to the land under section 181 of the Planning and Environment Act 1987. The permit holder must pay the Responsible Authority's and Barwon Water's costs of preparation, negotiation, execution and registration of the agreements.

32 The permit holder must enter into discussions with the Barwon Regional Waste Management Group regarding the Victorian Government's Towards Zero Waste Strategy, in particular the waste to energy component.

Mr M Townsend of Counsel instructed by Environmental Defenders Office and Hunt & Hunt

Mrs Rita Deaks, Mr Norman Gregory Donaldson, Mr Alan John McDonald

1 The applicants in each application are seeking a review of the decision of the Responsible Authority to issue on 23 September 2005 and 13 October 2005 Notices of Decision to Grant a Permit for the use and development of land at Lot 1 PS444823B for a broiler farm for 320,000 birds, Lot 4 PS 444823B for a broiler farm for 320,000 birds and 355 Tall Tree Road Lethbridge (CA 6 Section A, Parish of Burtwarrah) for three 320,000 bird broiler farms.

2 Rural Funds Management Pty Ltd indicated it wished to apply for five separate permit applications each application relating to one broiler farm. At the commencement of the hearing an amendment was made to the application for permit and application for review in relation to P2708/2005. The application for permit in this matter sought approval for three 320,000 bird broiler farms on Crown Allotment 6, Section A as this land is to be subdivided into three lots in PS546329R.

3 Application for permit and application for review in P2708/2005 is amended to an application for three separate permits to allow on Lots 1, 2 and 3 in PS546329R, Tall Tree Road, Lethbridge a 320,000 bird broiler farm.

4 As amended the application is therefore for five separate permits for five 320,000 bird broiler farms and associated works on Lot 1 and Lot 4 on PS444823B, and Lots 1, 2 and 3 on PS546329R, the recent subdivision of CA 6 Section A (355) Tall Tree Road (Permit P05-212 issued on 24 August 2005). The issues raised by the applicants for review still remain the same and relate in particular to the likely impacts, as a result of the broiler farms from odour and traffic on the amenity of the area.

5 The subject land is located approximately 3km south-west of the township of Lethbridge which is approximately 30km from Geelong. The Midland Highway runs through the township. Surrounding land is similar to the subject land and is generally broad acre farms of 200 to 300 hectares with smaller holdings towards the east. The landscape is open with little remnant vegetation. The land drains to the south and is within the catchment of the Barwon River.

6 Within the area there is an egg production farm formerly a broiler farm in Clarkes Road approximately 2.2km north of Tall Tree Road and to the south east there are four broiler farms in English Road, the nearest shed being approximately 1km away.

7 The subject sites are located on the south side of Tall Tree Road. The recent three lot subdivision is the most south east of the properties. Lot 1 with an area of 104.7ha is located on the corner of Tall Tree Road and Hawkins Road. Lots 2 and 3, 104.7ha and 105.7ha respectively are located to the south of Lot 1. Lot 4 on PS44283B is 136.1ha and abuts to the west the land to be subdivided. Lot 1 on PS44283B is 149.4ha and abuts Lot 4.

8 The recently subdivided land falls slightly to the south. Stony Creek flows south through this land in a shallow valley crossing Tall Tree Road via a pipe about 400m west of Hawkins Road.

9 A farmhouse and sheds are located on the subdivided land and two dwellings and sheds are located on Lot 4 and are setback approximately 60 and 50 metres from Tall Tree Road. Tall Tree Road is a sealed carriageway of 3.8m with grassed verges and a 20m wide reservation. Hawkins Road is a gravel carriageway.

10 Access to the subject land from the Midland Highway can be via Russell Street which runs through the township of Lethbridge or via Lower Plains Road, north Lethbridge and Laird Road.

11 It is proposed to construct on each of the five lots five sheds 173.2m by 17.53m with a wall height of 2.831m and a roof ridge height of 4.376m above ground. The sheds are to be parallel to one another and 13m apart. 3.3m high, 4m wide double sliding doors are located at the end of each shed. At one end of the shed on one corner is an external control room of 8.64m² on the other end two extractor fans. For a distance of 36m along each side wall from the control room end wall there will be cooling cell ventilation flaps in the side walls and external cooling cells through which water is passed for evaporative cooling. Extractor fans are to be located at the opposite end of the shed to the ventilation flaps, seven on one side wall, six on the other and two on the end wall. Each shed is to have a concrete floor. Feed silos are to be sited between the sheds at one end.

12 Each farm is to contain 320,000 birds. The farms are to grow broiler chickens for the Bartter Steggles processing plant in Geelong.

13 The subject land, as is the surrounding land, is zoned Rural under the Golden Plains Planning Scheme (clause 35.01). A broiler farm is a section 2 permit required use in the zone and under the particular provisions of the planning scheme at clause 52.31 must comply with the Victorian Code for Broiler Farms, September 2001(the Broiler Code).

14 A broiler farm falls within the general land use of 'intensive animal husbandry' and is defined under the planning scheme as 'land used to keep and fatten chickens which are restrained and housed in sheds and intensively fed'.

15 The Broiler Code is required to be read in conjunction with other provisions of a planning scheme. The Broiler Code defines different classes of broiler farms. (Class A, Class B, Class C and Special Class). It is submitted each of these farms meets the definition contained in the Broiler Code for a Class B farm defined as:

Class B farms contain the boundary buffer for this class (see Table 1) within the property boundary. Part of the separation distance for this class may be outside the property boundary provided there are no existing or likely sensitive land uses within the separation distance (see Element 1, paragraph 3 and 4) third party notification and review rights apply.

16 Table 1 provides that where the farm capacity (number of birds) is 280,001 to 320,000 for a Class B farm the minimum boundary buffer is 260m and the minimum separation distance is 700m.

17 A Special Class farm is defined as one having a capacity of more than 320,000 and for such farms the boundary buffer and separation distance requirements are to be established by an individual Environmental Risk Assessment (ERA).

18 The site is also subject to the Salinity Management Overlay in the planning scheme. A permit is required under the zone provisions for buildings and works as well as under the overlay provisions unless the schedule to the overlay says otherwise. The schedule provides that a permit is not required 'if appropriately detailed information is submitted to the satisfaction of the responsible authority showing that the land on which the buildings and works are proposed to be situated, is outside an area subject to salinity'. It was the Responsible Authority's view that no permit is required under the overlay as the area is outside areas of concern about salinity.

19 The planning scheme provides decision guidelines at clauses 35.01-6 and 65 for consideration in relation this type of application and directs consideration to relevant State[1] Planning Policies in relation to the environment and economic development and Local[2] Planning Policies which highlight the municipal strategic statement and relate also to catchment and land protection.

20 The municipal strategic statement acknowledges the potential for growth of intensive agriculture but notes that the values of the Shire must also be protected. Agricultural diversity and new farming enterprises are encouraged, 'the location of the Shire on the edge of the Western District represents an important critical mass of agricultural productivity particularly in terms of wool production and cropping. Other significant farm types [include] ... poultry... An important land use management issue for Council and the community is the potential for conflict between sensitive uses and agricultural practices'.

21 The proposal as amended seeks five separate permit applications for five separate farms on five distinct lots with each farm having a capacity for 320,000 birds. It was suggested by the applicants for review that because of the siting of the farms (adjoining lots), the single purpose use, an intention that they will be under common management with a centralised potable water storage to service all five complexes they should be considered as a Special Class Farm as defined in the Broiler Code and therefore an Environment Risk Assessment (ERA) should be provided that includes detailed modelling of odour, dust and noise impacts on neighbouring sensitive land uses.

22 The recent decision of His Honour Justice Morris in Drew v Baw Baw Shire Council [3] is timely and of assistance in relation to the classification of a broiler farm based on the number of birds or farm capacity the farm is designed to take. Based on the subjective and objective test His Honour applied we conclude that in this matter each group of five sheds on each of the farms is designed to accommodate a maximum number of birds.

23 Although we were not referred to the various references referred to in Drew that decision informs us that an operator of such a facility is required to comply with not only the matters within the planning scheme but also other requirements outside the planning system. The size of and number of the sheds proposed for each farm in these applications and the number of birds indicated by the permit applicant assists us in concluding that the sheds have been designed to have a capacity of at least 320,000.

24 Each farm is to be separately contained within one lot detailed in registered title particulars as a separate entity that can be separately owned and sold. The existence of common management at the commencement of the operation of the farms and the communal water supply do not of themselves imply that the five farms together make a single entity as defined in the Broiler Code as a Special Class farm. Each farm could at any time be separately owned. Nor is there any absolute necessity that each of these farms be contracted to the same processor. This being the case the Special Class farm requirements for boundary buffer and separation distances to be established by an individual ERA, is not required.

25 It is therefore our view that the proposal should be considered as five separate broiler farms. This being the case each of the proposed farms meets the definition contained in the Broiler Code for a Class B farm.

26 In Table 1 in the Broiler Code minimum boundary buffer and separation distance requirements for Class A and Class B farms are set out based on the farm capacity defined as 'the maximum number of birds that a farm is designed to take'. The minimum boundary buffer for a 320,000 bird complex is 260m and the minimum separation distance 700m to be a Class B farm. These distances are met by each of the five proposals.

27 'Boundary buffer' is defined as:

The shortest distance measured from a point on the nearest broiler shed wall to the nearest point on the property boundary, and is required for avoidance of adverse impacts associated with the normal or routine emissions that remain after the application of best practice in emission management and control technology.

The shortest distance measured from a point on the nearest broiler shed wall to the nearest boundary of a sensitive land use (except for a dwelling, dependent persons unit or residential building where the measurement will be to the nearest wall) and is required specifically for the avoidance of adverse impacts associated with emissions from abnormal or unexpected events (such as plant upsets or accidents).

29 Both these definitions allow for the point of reference for fan forced tunnel sheds aligned together to be the centroid of the emission points. We accept this as being the appropriate reference point for each individual farm complex of five sheds.

30 As the farms have been determined to fall within the definition of a Class B farm and not a Special Class farm under the Broiler Code there is no requirement for an ERA to be undertaken prior to consideration of the application.

31 Emphasis was placed by Mr Townsend on the requirements for the development to comply with the State Environment Protection Policy (Air Quality Management) (SEPP (AQM)). As will become clear in the consequent discussion there are a number of inconsistencies between the buffer and separation distances set down in the Broiler Code for Class B farms which are directed at the control of environmental risk including adverse impacts on sensitive land uses and the modelling requirements as set out in the Broiler Code and the SEPP (AQM).

32 The Planning and Environment Act 1987 at Section 84B includes among the matters which the Tribunal may take into account a requirement that the Tribunal 'must take account of and give effect to any relevant State Environment Protection Policy'. It was Mr Townsend's contention that this meant a strict application of the policy was required over and above the requirements of the Broiler Code.

33 It is our view that taking account of and giving effect to SEPP (AQM) does not mean that there must be a strict application of the SEPP rather the giving effect is to ensure that the intent of the SEPP (AQM) is evident in our considerations. The aims of SEPP (AQM) are set out at clause 6[4].

34 Clause 10 SEPP (AQM) defines air quality indicators for the purposes of the policy. Emissions of mixed odorous substances such as those found from intensive animal industries fall under 'Unclassified indicators' defined as 'indicators of the beneficial uses of local amenity and aesthetic enjoyment, namely odour and total suspended particles (nuisance dust)'. The design criteria for odour and total suspended particles (nuisance dust) are established in Schedule A of the SEPP (AQM). The design criterion for new sources of general odour is the odour detection threshold (1odour unit) and the policy indicates at note 8 to Schedule A this should be applied at and beyond the boundary of a premises.

35 In relation to Environmental Management the SEPP (AQM) deals with the development of protocols at Clause 15 for environment management, risk assessment at Clause 16 and separation distances at Clause 17. Clauses 17(3) and 27(2) directs a planning authority to give consideration to any protocol for environmental management relating to separation distances in assessing the suitability of proposed development locations and the potential impacts of development on local amenity. We are not aware that to date the EPA has developed any such protocols.

36 Note 9 to Schedule A of the SEPP (AQM) provides further information and recognises that for industries involving intensive animal husbandry an integrated set of criteria may be applied to ensure beneficial uses are protected. There are five recommendations on what the set of criteria should include. Mr Townsend relied heavily on the recommended criteria and submitted that one of the criteria indicated should be strictly applied:

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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 (three minute averaging time, 99.9 percentile) at and beyond the property boundary.

37 Note 9 as does note 8 and the other eight notes that follow Schedule A in the SEPP (AQM) contains explanations and information to be read in conjunction with Schedule A. Note 9 merely indicates that 'an integrated set of criteria may be applied' whilst we acknowledge note 9 lists what the set of criteria should include there is no requirement that the criteria must include all of the criteria listed or that the criteria to be applied is in any way limited to the list. The note is merely a recommendation if an integrated set of criteria is to be applied. We do not consider that when applying Section 84B (2) (e) of the Planning and Environment Act 1987 and taking account of and giving effect to the SEPP (AQM) that explanatory notes to a schedule within the policy should be read as having some mandatory application.

38 The Broiler Code, an incorporated document in all Planning Schemes[5] was prepared by a technical committee comprising representatives from the EPA as well as other relevant government agencies and industry representatives. The SEPP (AQM) acknowledges that a protocol can be developed for a particular industry and we consider that the Broiler Code provides some guidance in the absence of a protocol.

39 The Broiler Code acknowledges that 'for proposals that do not require an ERA (eg a Class B farm), modelling may be used as an option to assist applicants to design the farm so that there is less likelihood of unacceptable impacts. An EPA approved model is recommended for emissions modelling. At the time of the coming into force of the Broiler Code, September 2001 the EPA approved model was AUSPLUME and the odour measurement standard favoured by the EPA was the B2 method.

40 Element 3, Air Quality (Odour and Dust), under the heading Best Practice Farm Design and Operation in the Broiler Code concerns itself with controlling adverse impact and specifically states:

Separation of emission sources and sensitive land uses is provided in two ways. The broiler farm provides a boundary buffer (that is a distance between the emission source on the site and site boundary) to allow the dispersions of emissions after the application of emission controls and hence prevent off-site impacts beyond the property boundary from normal farm operations. In addition a separation distance is provided between the emission source(s) and the nearest sensitive land use to minimise impacts associated with abnormal or unexpected events (such as plant offsets). In this case the necessary separation is only partially provided by the available boundary buffer, and the rest of the separation distance is outside the property boundary.

41 The EPA has provided the applicant with a draft guide (Victorian Code for Broiler Farms Guidelines for Environmental Risk Assessments) that can be considered as the first step towards a protocol. This document states the following with respect to developing an ERA for a broiler farm:

An ERA incudes the assessment of impacts arising from routine emissions and discharges, and abnormal or unexpected events (such as farm upsets or accidents). The assessment needs to be made against statutory policy requirements, and the objectives, criteria and best practice guidelines presented in the Code. An ERA must assess the potential impacts of emissions, discharges and wastes from a broiler farm, such as odour, dust, noise, solid waste, wastewater and site run-off. The assessment of odour, dust and noise impacts is usually a key component of an ERA for broiler farms.

We particularly note the emphasis on impact in the draft guideline and the Broiler Code.

42 In summary it is our view, in light of the above, that we should assess these proposals as far as possible against the same criteria that were used to determine the boundary and separation distances contained in the Broiler Code for B farms and not apply the more stringent recommendations of the SEPP (AQM). In particular we should seek to be satisfied that the proposals will have no greater effect on a sensitive receptor than a Class B farm

43 We were provided with several detailed witness reports from both Mr Tim Pollock of GHD and Dr Graeme Scott Lorimer of Biosphere Co Limited. Both these witnesses were also extensively cross examined on their reports during the hearing.

44 Dr Lorimer raised a number of questions with respect to the appropriateness of the model inputs made use of by Mr Pollock and comments by him with respect to the location and magnitude of the odour criteria to be met. We will now deal with each of the issues raised in turn.

45 A strict adherence to the modelling requirements for an ERA as contained in the Broiler Code and the SEPP(AQM) would require a constant emission rate; namely the maximum emission rate as an input in the modelling exercise, with no regard being had for the cyclical nature of emissions as a consequence of varying bird age. It was acknowledged by Dr Lorimer that this would produce a ridiculous result requiring some 140,000 hectares to provide the necessary buffer for the proposed development.

46 The SEPP (AQM) states in Part C with respect to assessing the impact of emission to air that the predicted maximum concentration must be the 9th highest value from the AUSPLUME simulation results when the averaging time is less than 1 hour and that this is the design criteria that must be met at or beyond the boundary[6] - the so called Jogger Principle.

47 The 9th highest value in Mr Pollock's data set was 130 ODU at the boundary of the site. It is our view that the SEPP (AQM) requirement cannot possibly be met and is totally inconsistent with the boundary buffer contained in the Broiler Code for a Class B farm.

48 The Tribunal has already indicated that it does not agree with this approach but rather is seeking for a realistic assessment of the potential impacts of the proposal. For this reason we cannot accept the 'Jogger Principle' promoted by Dr Lorimer as being the appropriate test.

49 Further we do not accept that the boundary of the premises should necessarily be the point of concern. In many situations, as is the case in the present application, land beyond the boundary of the premises is used for agricultural purposes and contains no sensitive use. The 9th maximum value for the present application is located on Tall Trees Road about midway along the boundary of the site and well removed from any sensitive use.

50 Mr Pollock's evidence included odour impact contours with respect to the proposed development according to a number of criteria which included both 99.9 percentile values at three minute averaging time, 99.5 percentile values at three minute averaging time exceedance frequency.

51 He argued for the use of the 99.5 percentile as the standard to be met on the basis that this was the value used to establish the separation distances in the Broiler Code. The 99.5 percentile standard allows 44 exceedances as opposed to the 99.9 percentile standard which allows for only 9 exceedances in any one year. This interpretation is borne out in two recent reports, namely: Stimulation of Odour Dispersions from Broiler Farms May 2005 prepared by Holmes Air Sciences; and Progress Report for Minister for Agriculture, entitled Major Findings from Simulation Studies of Odour Dispersion from Broiler Farm Complexes a report of the Broiler Code Committee, August 2005, which found the separation distances in the code were comparable to the 99.5 percentile standard..

52 Separation distances in the Broiler Code are to ensure the impact on nearby sensitive uses is not unacceptable. It is our view that it is appropriate to look for consistency by making use of the same criteria in determining the impacts of the present proposal and use the 99.5 percentile in coming to our final determination. However in coming to this conclusion we acknowledge that there still are in our view a lot of uncertainties in the model prediction and that a certain amount of caution is warranted.

53 The protocol for determining odour concentration the B2 method was used for some time in Victoria and is the protocol referred to in the Broiler Code; however the EPA adopted the Australian Standard AS 4323.3 shortly after the Broiler Code was gazetted. The SEPP (AQM) refers simply to the relevant standard.

54 It was Mr Pollock's contention that there was a factor of two difference between odour as measured by these two methods and that the use of the Australian Standard effectively doubled the odour standard to be met. Mr Pollock acknowledged that the recently adopted Australian Standard was more reproducible and therefore more accurate than the B2 method. It was however his contention that the B2 method was used in determining the boundary and separation buffers contained within the Broiler Code and as the standard specifically mentioned in the Broiler Code was the appropriate standard to use.

55 Dr Lorimer drew the Tribunal's attention to a Victorian EPA publication: Comparison of EPA Approved Odour Measurement Methods, SR1, October 2002 authored by Trevor Bardsley which compares the two measurement protocols reporting on a study undertaken by the EPA internally and a study which included all the Victorian NATA accredited laboratories for odour, measured together with five accredited NSW laboratories. The paper concludes as follows:

...results for AS4323.3 consistently fall within or overlap the confidence intervals of B2 measurements and therefore the results are deemed to be equivalent.

56 Given the conclusion reached no adjustment of the odour values should be applied.

57 Dr Lorimer took issue with Mr Pollock's failure in his first witness report to take account of the background odour emissions from the five farms located in the English Road area. Mr Pollock in his subsequent report provided comparative values for the 99.9 percentile odour levels at each of the potentially impacted dwellings as a consequence of the emissions from the existing broiler farms. The results show that at Dwellings 1, 5, 7 and 8 the existing background levels will potentially increase the 99.9 percentile odour impact by some 7% for Dwelling 5, 10%, for Dwelling 1 and 19 and 26 %, for Dwellings 7 and 8 respectively. No impact was predicted on the odour level at Dwellings 3 and 6 as a consequence of including the background concentration. For the remaining off-farm dwellings in the area, Dwellings 9, 10, 14 and 15, the odour impact of the existing farms predominates with the additional impact of the proposed development having no discernible effect. Although these impacts were not determined at the 99.5 percentile frequency it is our view that the nature and extent of the changes associated with including the background would be the same. (The dwellings are identified by number on a number of aerial photographs contained in the application and the expert witness reports of Mr Pollock).

58 Dr Lorimer was also critical of the assumptions made by Mr Pollock in calculating the background odour levels in that he used an odour emission rate that was typical of a modern tunnel shed and could well be exceeded by an older style shed. He was further critical that the emissions from the layer farm to the north of the subject land and the litter spreading and storage that take place in the wider area were not included in determining the background contribution.

59 A higher background odour impact would elevate the odour levels experienced at each of the dwellings. Such an increase would make the impact of the proposal on Dwellings 9, 10, 14 and 15 even less relevant but would in our view have the potential to increase the maximum odour experienced at Dwellings 1, 3, 5, 6, 7 and 8 i.e. on those having the main component of their predicted odour coming from the proposed development.

60 With respect to the argument put that the existing layer farm should be included in the calculation. The Tribunal accepts that previous assessments of the odour emissions from layer farms have been determined and found to be of the order of 20% of those from a broiler farm. We therefore are of the view that it was not necessary to include this farm in the calculation. We further find that it is inappropriate to include the spreading and storage of litter; both of these are as of right activities which would in any event be very difficult to model given the occasional nature of their occurrence and the unpredictability of their location. We note that the applicant is willing to accept a condition to not store or spread litter on any of the farms that are the subject of this appeal. We find this to be an appropriate condition to apply as we are of the view that litter spreading does at times lead to complaints.

61 It was put to us that there was a permit for a property on English Road that had not as yet been constructed and that this had not been included in the background modelling. This is indeed the case however this property is further south than the properties included in the background calculations and will be a state of the art development when built. In our view it is unlikely that the contribution from this property would greatly change the values calculated.

62 The other major aspect of Dr Lorimer's concerns with respect to the modelling carried out by Mr Pollock related to the meteorological file used. He made specific criticism of the aerodynamic roughness factor used in the modelling calculations, the application of the Geelong South Meteorology file and of a synthesised meteorological data set The Air Pollution Model (TAPM). It was common ground between Mr Pollock and Dr Lorimer that the conditions that lead to maximum odour concentrations were light winds and clear skies particularly in winter when ventilation rates are low and vertical mixing is slight.

63 The Geelong South EPA Air Quality Station is located on the Geelong Showgrounds. Mr Pollock argued that this was the most appropriate data station available with respect to the physical conditions pertaining to the subject land. He argued that the direction of poor dispersion and the regional drainage flow which is down to the Moorabool River at Geelong South would be consistent with what would be expected at Lethbridge, although that the local drainage flow experienced at Geelong South would not be experienced at Lethbridge and as a consequence the Geelong South meteorological data would tend to over estimate predicated odour levels east of the farm complex i.e. towards the township. He informed us that Geelong South was chosen over and above the Sheoaks Bureau of Meteorology Automatic Weather Station which is closer to Lethbridge specifically because the meteorological data at Sheoaks was not consistent with local topographic maps. An on site inspection by him discovered a local land feature which sloped away to the north-west which does not show on the topographical maps. The Tribunal accepts the argument put with respect to the meteorology data chosen.

64 The surface roughness factor made use of by Mr Pollock in his calculations was considered by Dr Lorimer to be sufficiently in error to have had a significant impact on the results. The factor chosen by Mr Pollock for roughness height or Zo was 0.4m. This represents the height above the ground at which the wind speed is taken to always be zero. Dr Lorimer gave evidence of measurements considered by him in the Latrobe Valley and that based on these measurements the Zo value that should have been used of in the calculations was 0.03m. Dr Lorimer tabled figures for the roughness heights of different surface types originating from the United States Environment Protection Agency. This table gave values of Zo for grass land, without indicating whether it was flat or rolling which ranged between 0.001 to 0.1 from winter to summer. The other reference provided to the Tribunal by Dr Lorimer[7] was specifically directed at industrial facilities, particularly refineries and was in our view not specifically relevant to determining what roughness values should be preferred.

65 It was Dr Lorimer's evidence that substitution of the value of 0.03 considered by him to be the most accurate value for the site, for the 0.4 used by Mr Pollock, would result in a 2.3 times increase in the predicted concentration at a distance of 2km from the source. Mr Pollock's evidence on the other hand was that a change in surface roughness from 0.03 to 0.4 would result in a 50% increase in the odour levels predicted. He further contended that 0.03 was not a reasonable value to choose for a surface roughness of grassy rolling terrain and in support provided documentation quoting values for Zo ranging from around 0.1 to 1 for such terrain[8].

66 On the basis of the information before us, we cannot conclusively determine what Zo value would be most appropriate for the model calculations for this site, however we do accept that the area of the subject site is rolling grassland and that a value of around 0.1 to 0.4m would seem to be appropriate. A consequence therefore of accepting Mr Pollock's figures for the sensitivity of predicted odour concentrations to Zo, introduces a potential error for lower over higher of the order of 25%.

67 Dr Lorimer criticised the use of the synthetic TAPM file by Mr Pollock as not having been approved by the EPA in accordance with the requirements of the SEPP (AQM) or having been successfully validated against an actual meteorology file from a nearby site. He did however concede that TAPM was a valid approach to obtaining a meteorological file for a particular site that was cognisant of the physical conditions pertaining to that site.

68 Mr Pollock provided details of the validation of the TAPM model against Geelong South's meteorological data. We find the TAPM model to be a reasonably good fit for Geelong south albeit showing an under prediction of the 0 to 2m/sec winds and an over prediction of the 2 to 4m/sec winds providing some confidence with respect to the total range of 0 to 4m/sec. We conclude it is reasonable to use the TAPM file to give some indication of the actual impact of odour on adjoining residential properties. It must however be borne in mind that the TAPM meteorology file is tailored to the specific site and the separation distances in the Broiler Code are based on a generalised meteorology file. If we accept that the distances in the Broiler Code approximate to the actual level of impact at a sensitive receptor then the values calculated by TAPM would be an underestimation and we have not therefore relied on the TAPM results in our determination.

69 Concern was expressed as to the impact should the farms be in different ownership and as a consequence not operate on a staggered cycle. Mr Pollock carried out a sensitivity assessment of the emissions to batch start time which demonstrated a plus or minus 20% variation in emissions above and below the mean value could occur.

70 The Broiler Code states with respect to environmental risk assessment and superior technology that an ERA must be conducted as part of a planning permit application for a proposal for which the required boundary buffer or separation distance may not provide adequate protection.

71 We find that it is appropriate for an ERA to be carried out in relation to these present applications to give an indication of the collective impact of these five additional broiler farms located in an area where there are already a number (five operating and one with a permit yet to be constructed in nearby English Road) of broiler farms which do not meet the Class B requirements.

72 We find in particular it is appropriate that odour modelling be undertaken to enable an assessment to be made of the potential for adverse affects on adjoining sensitive uses. We do not however find that such modelling should rigidly adhere to the requirements contained in the State Environment Protection Policy Air Quality Management 2001 SEPP (AQP) given that the requirement for the assessment is not strictly called up by the Broiler Code.

73 In summary, it is our view that the appropriate model data to be applied to obtain information regarding the potential adverse impact of the proposed development at nearby sensitive receptors should be that calculated for well managed tunnel ventilated sheds with stacks, taking account of background odour levels and making use of the South Geelong meteorology file with the standard odour value not to be exceeded to be taken as being 5 ODU measured according to the Australian Standard at the 99.5 percentile frequency level.

74 Our interpretation of Mr Pollock's evidence is that the odour impact of 5OU at the 99.5 percentile three minute averaging time omitting the background is only exceeded at Dwelling 3 as a consequence of the proposed development provided stacks are placed on the duty fans. However, as has already been discussed there are a number of uncertainties associated with the modelling, including the possibility of less favourable batch start times which could introduce a variation of up to 20%, a roughness factor of nearer 0.1m than the 0.4 introducing an uncertainty of up to 25%, as well as uncertainties with the meteorological file data.

75 We find that if account is taken of the background then extrapolation of the 99.9 percentile predicted odour levels at Dwellings 1, 5, 7 and 8 indicates that 5 ODU at 99.5 percentile level could be exceeded.

76 Mr Pollock's calculations indicate that there would be a significant reduction in the odour experienced at Dwellings 3, 6, 7 and 8 and a small reduction with respect to Dwelling 5 as a consequence of deleting Farm 1E on Lot 1 PS546329R the most north-easterly of the proposed broiler farms from the proposal. Such a deletion would give us a measure of confidence there would not be an unreasonable amenity impact by way of odour on adjoining residential properties

77 The findings made by us with respect to odour equally apply to the impact of dust. It was common ground between the expert witnesses that if the standard for odour was met the air standards for dust particles would equally be met.

78 We are not persuaded by Mr Pollock's argument that we should permit a greater frequency of exceedances to occur because the predominance of favourable conditions for odour occurs at night nor do we find that it is appropriate to use longer averaging times. We have not dealt with potential upset conditions in this determination however we broadly accept the approach taken by Mr Pollock firstly that the risk factor for an event occurring that could impact on Lethbridge is of the order of 1 in 80 years and that the impact should such an incident occur would be to amenity and not to health.

79 The proposed 5 broiler farms will generate in the order of 6,630 heavy vehicle movements per year. As a result issues were raised in relation to the impact from this increase in truck movements along the existing local roads and the impact this will have on residential amenity, traffic safety and the maintenance of the roads. Element 6 of the Broiler Code is concerned with vehicle movements to ensure that access to the farms does not interfere with the function of adjoining roads and impacts on nearby sensitive uses are minimised.

80 The Responsible Authority in a condition of the permit had already pre-empted the concerns expressed regarding heavy vehicle access to the farms through the township of Lethbridge via Russell Street and we support this condition which provides:

All truck traffic generated as a result of this application must access [the] site and the Midland Highway by way of Tall Tree Road, Laird Road and Lower Plains Road, No truck traffic shall use Russell Street, Lethbridge to access the site

81 We believe that compliance with this type of condition should be undertaken although the preparation of a traffic management plan is not specifically required. We also note that the use of B-Double vehicles on local roads requires a special permit from the Responsible Authority.

82 The roads along the proposed truck route require some upgrading in parts and with the higher volume of trucks expected from the five farms we consider the upgrading requirements to be both essential and appropriate. There was some criticism of what depth of seal would be placed on the roads. We consider that the details of the construction and the materials to be used is best assessed by the Council's Engineering Department as they are ultimately the body responsible for the standard and care of the roads within the municipality.

83 Ms Dunstan provided a detailed breakdown of the expected truck movements in relation to the expected cycles of 5.5 batches per year with each cycle involving a maximum of 1,165 heavy vehicle movements. The breakdown of truck movements provided indicated there would be no truck deliveries or pick-ups on weekends, Christmas Day or Good Friday. The truck movements would be spread throughout the batch with the highest movements on days when birds were picked up or delivered. Birds are picked up on 34 days within the batch with such pick-ups generally occurring between 10pm and 6am at night. Chick deliveries may also occur on days when birds are picked-up.

84 A resultant break down by Ms Dunstan indicated 40 truck movements would occur on a typical peak activity day, 30 on a moderate activity day and 20 on a low activity day. Three truck movements per hour can be expected at night during the peak with 4 truck movements in any two hour period during the day with 12 days each year expected to be the peak and 92 days with between 30 and 39 truck movements. During moderate and low activity days the majority of truck movements are to occur during the day with approximately 3 truck movements per hour during the day and 1 per hour at night. At the lowest activity times, that is less than 20 truck movements will occur on 188 days of each year.

85 Whilst it may be noticeable at times that there are additional truck movements on the roads we do not consider that 3 additional truck movements per hour likely to be generated by the proposals will result in an unreasonable impact on the amenity of the area. We accept the conclusions reached by Ms Dunstan that the additional traffic generated as a result of the proposed farms will be relatively low on a daily and weekly basis and will not have a detrimental impact on the safety and operation of the road network provided upgrading works are undertaken.

86 It is expected that there will be an on site manager for at least three of the farms as well as additional staff. Ms Dunstan estimated this would be likely to generate an estimated 40 car based vehicle trips per day. We do not consider that this will have any perceptible impact on the area which already has a number of dwellings that would be expected to generate at least 10 vehicle trip movements per day.

87 The assessment by Ms Hui of the likely noise impacts were based on two sources of noise generation, firstly from the proposed farms from fork lift activity, truck movements into the site during the loading of birds and fan noise, and secondly from the noise of trucks travelling to and from the farms at night.

88 In relation to the noise generated from the proposed farms she concluded that Dwellings 1, 3, 5 and 8 are all located at least 600m away and based on a worst case scenario of all farms being loaded on the same night she considered the noise from the on farm activities would not exceed the minimum recommended level stated in the EPA's Interim Guidelines for Control of Noise from Industry in Country Victoria.

89 There are no EPA guidelines in relation to trucks travelling along rural roads. Ms Hui however based her assessment on the impact from night time trucks on sleep disturbance criteria referred to by the NSW EPA. Given this area is very quiet she adopted the lower level of 60dBA to be achieved. Three dwellings were assessed as likely to be impacted, a dwelling located on the south east corner of Lower Plains Road and Laird Road, as well as dwellings at 50 and 107 Lower Plains Road these dwellings are located 10m, 67m and 77m respectively from the roads with all other properties along the route to be travelled setback at least 80m or further from the road.

90 Ms Hui estimated the trucks travelling along the road would result in maximum noise levels above 60dBA at each of the three dwellings. The largest increase in noise would be at the dwelling near the corner of Lower Plains Road and Laird Road where Ms Hui believed there would be a 19dBA increase, whereas the increase to the other two dwellings would only be in the order of 1-2dBA, with such an increase being difficult to discern.

91 It was Ms Hui's view that if the windows to the dwelling on the corner were closed there would be unlikely to be any sleep disturbance to the occupants even with the increase in noise. If however the windows were opened sleep disturbance could occur. She indicated the applicant had advised that all trucks used for bird pick-up would be required to be fitted with sound-reducing mufflers. Ms Hui was not able to refer to any acoustic data to determine the effect of such mufflers but it was her belief that some reduction in noise levels would be achieved by their use.

92 From her assessment Ms Hui made several recommendations in relation to noise control measures that could be adopted:

•

A reduction in the night time speed limit along the local road network.

•

Random noise testing of trucks using the facility as a warning to transport companies' that, if any truck is found to be in exceedance of the EPA guidelines, it will be reported.

•

Detailed complaint management such as that implemented at airports, where complaints about noise can be linked to specific aircraft or, in this case specific trucks.

93 We are of the view that if some of Ms Hui's recommendations were adopted there is unlikely to be any on going impact on the area as a result of noise either from the farm operations or the night time truck movements. We expect that initially the residents of 50 and 107 Lower Plains Road may be aware of the increase in truck movements but with the upgrade of the road as well as the implementation of the recommendations we expect that the truck movements will not cause long term sleep disturbance to these residents.

94 We also expect that residents of dwellings located at further distances from the road, as are Mr and Mrs Krusic-Golub may be aware of the truck movements from time to time, but we do not consider that on the evidence presented that the truck movements will result in unacceptable noise impacts upon their amenity.

95 Inevitably in the current world climate where there are daily references to 'bird flu' outbreaks and the reporting of several deaths of humans as a result of such outbreaks in other countries, the applicants for review raised concerns about the possibility of disease spreading from the birds and its possible impact on humans. This concern also stemmed from an outbreak of Newcastle disease which spread to a nearby poultry flock several years ago.

96 Dr Turner's evidence with respect to the possibility of an outbreak of disease amongst the birds to be kept on the farms, the likely impact on humans and the management of such an outbreak if it did occur, satisfied us that although highly unlikely could be managed and would not lead to infection of residents.

97 Dr Turner stated: 'Health concerns about the disposal of dead birds on site are not realistically based as the environmental management plan has all dead birds being disposed of offsite following freezing. Health concerns about manure spreading on the property leading to airborne infections, such as avian influenza and Newcastle disease, in humans are also not factual as infection with these agents can only come from close contact with live or dead infected birds or their manure. Fears that an outbreak of avian influenza in birds at the Tall Tree complex would lead to infections and disease in humans up to 3km distance are without foundation, the environmental management plan may be modified to provide for all litter to be removed from the site further reducing the probability'.

98 Dr Turner also observed that the use of litter in agriculture is an accepted practice that has been used for centuries and remains a valuable source of soil nutriment and conditioning.

99 Three waterways on the properties have all been impacted upon by agricultural activities carried out on the land and on Mr Roy's assessment have a low ecological value. There is potential for these waterways to be further impacted upon as a result of the proposed developments.

100 We understand the land is located within the Western (Basalt) Plains Grassland Community. Mr McCallum was critical that there had not been a flora or fauna survey undertaken on the land although he did concede the land has been significantly impacted upon by the agricultural activities carried out on the land, as did Mr Roy for the applicant.

101 Mr Roy recommended mitigation measures for the construction and operation of the farms to ensure there is no further damage and an opportunity to enhance the ecological value of the area, including setbacks of at least 30m to Stony Creek, the development of a drainage and stormwater management plan in relation to runoff and a water quality monitoring program.

102 Mr Roy was of the view that Stony Creek had the potential for rehabilitation and in this respect it was indicated the applicant was intending to revegetate the waterways. A landscape plan presented with the application indicated the proposed fencing off of the creek with the planting of indigenous plants to occur along the banks of the creek.

103 The Tribunal received a letter addressed to the President dated 20 January 2006 from the South West Regional Director of the Department of Sustainability and Environment in relation to native vegetation. We understand this letter was prompted by a number of requests from one of the applicants for review Mr S McCallum who also appeared before us as an expert witness in relation to native vegetation.

104 We note that there is no requirement for a permit for the removal of native vegetation from the land, any removal being exempt under the provisions of clause 52.17 of the Golden Plains Planning Scheme which provides:

A permit is required to remove destroy or lop native vegetation.

•

To the removal, destruction or lopping of the minimum extent of native vegetation necessary for the construction, operation or maintenance of a farm structure, including a dam (other than on a stream), tracks, bores, windmills, tankstands, fences, stockyards, loading ramps, sheds and the like. This does not include the removal, destruction or lopping of native vegetation required for the installation or operation of a central pivot irrigation system.

105 Mr McCallum carried out a number of surveys on the land. He conceded that the land is generally under crop with only some areas of significant native vegetation being evident. One area of the land being within proposed lot 3 on PS546329R appears to be the least disturbed of the land in terms of native grasses.

106 We were not greatly assisted by the evidence of Mr McCallum appearing before us in two roles that of an expert witness and also an applicant. We were unable to conclude that as an expert he was either objective or impartial. However Mr McCallum made general suggestions not dissimilar to the recommendations put forward by Mr Roy particularly in relation to the protection and enhancement of Stony Creek.

107 Given that there is no requirement for a permit for the removal of native vegetation on the land and also given that the land is generally under crop with little or no native vegetation remaining we do not see that any flora and fauna assessment is necessary. There may be some minimal removal of native grasses as a result of the siting of some of the sheds but generally we believe the sheds are to be sited in areas that are under crop.

108 We consider Mr Roy's recommendations should be adopted. Mr Roy as did Dr Turner also recommended against the spreading of litter on the farms to ensure there was no likely affect on the quality of the surface water runoff into the waterways and we consider this will assist in the long term ecological enhancement of the sites.

109 A detailed written report by Mr Martin Haege in relation to water and waste management was provided to us. Mr Haege was not called to give evidence. Mr Haege's report has been considered by us and we see no reason to not rely upon the conclusions reached in the report that the proposals will have an adequate water supply, negligible impacts on local surface water and all liquid and solid wastes can be managed without impacting on the local environment.

110 An overall assessment of the proposals in terms of the policies contained within the Golden Plains Planning Scheme resulted in Mr Walters concluding that the use was appropriately located within a rural zone, as well as being well located to the poultry processing plant in nearby Geelong. The proposal is well supported by State and Local policies. The economy of the Golden Plains Shire is recognised as being built on the agricultural sector and poultry farming is recognised as a significant farm type in the area.

111 We do not accept the description put on the proposals by Ms Halls as 'industrial farming'. What is proposed clearly falls within what is aptly described within the planning scheme as 'intensive animal husbandry' and encouraged in clause 17.06 with a policy objective to 'facilitate the establishment and expansion of ... poultry farms and other intensive animal industries in a manner consistent with orderly and proper planning and protection of the environment'.

112 Each lot is a large area within this rural zone with very low expected site coverage of approximately 1.32% to 1.88%. The visibility of the sheds and silos within this rural landscape will not have an unreasonable impact on the surrounding area. Sheds, silos and other farm structures are all part of the rural landscape. The proposed landscaping around the sheds will contribute to the reduction in visibility of the farm buildings. Based on the decision guidelines contained in Clause 35.01-6 Mr Walters concluded the proposals should be approved provided the various best practice guidelines contained within the Broiler Code are met.

113 The location of the township of Lethbridge approximately 3km away will not be impacted upon by this proposal rather it is likely to provide additional jobs in the area. We do not consider that an agricultural based proposal that is appropriately located within a rural zone will impact on the future growth and development of the township of Lethbridge. Our observation is that there are adequate areas within the township itself to allow for a considerable amount of development without any need to expect that this rural land will be required at some time in the future.

114 We conclude as a consequence of the above discussion that permits should issue for the two westernmost lots namely; Lots 1 and 4 P444823B and Lots 2 and 3 PS546329R of the easternmost land to be subdivided.

115 We are of the view that a certain amount of caution is required given the magnitude of the enterprise proposed here and the uncertainties contained within the model calculations. We are also taking account of the fact that the 5OU level should preferably correspond to the boundary buffer as contained within the Broiler Code and as such should be contained within the subject site to provide security against upset conditions. The 5OU contour for the proposal falls well outside the site to the north and to the south and although there are no sensitive uses to the south there is a dwelling contained within the contour to the north of the land. The deletion of Farm 1 on Lot 1 PS546329R on the eastern parts of land will reduce the impact of odour on Dwellings 3, 6 and 7 by just under 40% and would have a significant beneficiary effect on Dwelling 8. Such a deletion would give us a measure of confidence that there would not be an unreasonable amenity affect by way of odour and dust on adjoining sensitive uses.

116 With respect to the other likely impacts from the proposal we are satisfied that in relation to traffic, health issues and noise that there will be no unreasonable impact on the amenity of the most proximate residents or the township of Lethbridge.

117 In our view the landscape proposal particularly with respect to the rehabilitation of Stony Creek will add to the environmental values of this land and contribute to the overall environmental values of the locality.

118 A set of draft conditions were provided for discussion by the parties during the hearing. We have considered the submissions made in relation to the conditions and have made amendments where appropriate.

[1] Golden Plains Planning Scheme Clauses 15.01, 15.03, 15.04, 15.05, 15.07, 15.09, 15.11, 15.12,17.05 and 17.06

[3] [2006] VCAT 134 (10 February 2006)

(a) ensure that the environmental quality objectives of the State environment protection policy (Ambient Air Quality) are met;

(b) drive continuous improvement in air quality and achieve the cleanest air possible having regard to the social and economic development of Victoria; and

(c) support Victorian and national measures to address the enhanced greenhouse effect and depletion of the ozone layer.

[5] Clause 81.01 Golden Plains Planning Scheme

[6] State Environment Protection (Air Quality Management ) Schedule C, Modelling emissions to Air, Part C - Clause 1

[7] Objective Method for Estimating Surface Roughness Length for Industrial Facilities by Peterson, Parce and Radbideau

[8] Air Pollution Meteorology by Paolo Zannetti, published by Van Nostraned Reinhold