Krusic-Golub v Golden Plains SC [2006] VCAT 255

Krusic-Golub v Golden Plains SC [2006] VCAT 255 - VCAT 2006 case summary — Zoe

[74]

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'.

[75]

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:

[79]

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:

[94]

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.

[95]

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.

[97]

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.

[100]

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.

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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:

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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.

At a glance

Court

Decision date

Source

Judgment (118 paragraphs)

Krusic-Golub v Golden Plains SC [2006] VCAT 255 (24 February 2006)

Parties

Legislation Cited (1)