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[1999] VCAT 2253
appellant. Allowed in part. The Responsible Authority's decision to refuse a permit is set aside. A permit is granted for the development and use of the land for extensions to an existing poultry farm...
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A farming couple wanted to expand their chicken farm by building two new sheds, which would have more than doubled their chicken numbers. The local council refused permission, saying the farm was too close to neighbouring houses and didn't meet environmental guidelines about how far chicken farms should be from homes. The couple appealed to the Victorian Civil and Administrative Tribunal (VCAT). VCAT said that while the farm didn't meet the specific distance rules, those rules weren't based on solid science. VCAT used computer modelling to work out that if the farmers upgraded their existing sheds and only built ONE new shed (not two), the smell wouldn't get any worse than it already was. VCAT also noted that the area already had smells from market gardens using chicken manure as fertiliser. The Tribunal allowed the appeal in part—permitting one new shed with strict conditions about how it must be built and operated, including requirements for special ventilation, landscaping, noise barriers, and rules about when chemicals could be used. The decision shows that planning rules can be flexible when guidelines are outdated, but developers must still prove their proposal won't harm neighbours.
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DATES OF HEARING: 29 September and 30 September 1999
The order of the Tribunal is that the application for review is allowed in part and a permit is granted for the development and use of the land for the purpose of extensions to an existing poultry farm (broiler farm) at Lot 40, LP 1740, (No.30) Boundary Road South, Pearcedale and Lot 39, LP 1740 (No.71) East Road, Pearcedale, the consolidation of the said lots and buildings and works to three existing broiler sheds subject to the following conditions:
1. The development must not be commenced until three (3) copies of amended plans have been submitted to and approved by the Responsible Authority. The plans must be drawn to scale with dimensions. The plans must be submitted within two years of the date of this permit. When approved, the plans will be endorsed and form part of the permit. The plans must be generally in accordance with the submitted plans but modified to show to the satisfaction of the Responsible Authority:
(a) The deletion of Shed 5 and associated changes in the location and configuration of Shed 4, accessways and the like.
(b) The location of feed silos and other ancillary structures.
(d) The specific location of all buildings and setbacks from boundaries.
(e) The correct location of the existing dam and drain, and the extent of any works required to increase the storage capacity o the dam including lining materials, freeboard and outlet flow rates.
(f) The colours and external finishes of the sheds and silos, which must harmonise with the landscape and not include highly reflective metallic finishes. Low pitched roofs that are not readily visible from public areas may use such finishes provided they are necessary for temperature control of the broiler sheds
(g) The location of drainage lines directed at ensuring discharge of polluted runoff from the site. Such details to form part of a drainage plan.
(h) The shed constructed on clay fill pads to a minimum floor level of 600mm above the estimated floor level as determined by Melbourne Water.
(i) A landscaping plan, indicating the area or areas set aside for landscaping and planting, any vegetation to be retained and a schedule of all proposed trees, shrubs.
(j) Measures along the east and south-west boundaries including mounding and acoustic fences to attenuate the impact of the new shed. Such measures to be limited to the line of view from the dwellings on the adjoining properties to the shed .
2. The shed is to be of minimum ventilation tunnel and shed design incorporating cooling pads and roof mounted extractor fans, so as to be able to provide an airflow velocity of up to 2 metres per second and up to 60 air changes per hour. Alternative technologies may be used with the prior written consent of the Responsible Authority.
3. The site retention dam must be constructed to the satisfaction of the Melbourne Water and the Responsible Authority and incorporate the following features:
* 900 cubic metres of freeboard storage in dam above full supply level per hectare of catchment area (including the dam area);
* freeboard storage to be no less than 450mm deep and above the natural surface level;
* outlet from the dam controlled to 3 litres per second per hectare of catchment (including the dam area) and connected to an existing outfall water course;
4. The modified plans required by Condition 1 must not be approved by the Responsible Authority until they have been referred to Melbourne Water and EPA for comment. The Responsible Authority must consider the comments of Melbourne Water and EPA if they are received within 21 days of the referral.
5. The new shed shall not be commissioned until such times as the following works on the existing shed have been completed to the satisfaction of the Responsible Authority:
* Shed 1 - Install tunnel vent fan in western end wall and install nipple drinker system
* Shed 2 - Install 'tunnel vent type' duty fans along ridge of shed and double curtains
* Shed 3 - Convert to minimum tunnel ventilation tunnel design.
The Responsible Authority may grant consent to substitute any of the proposed measures with alternative works that will achieve an equivalent level of odour minimisation.
6. The layout of the site and the size of the proposed buildings and works as shown on the endorsed plan must not be altered or modified without the written consent of the Responsible Authority.
7. The use and development must be carried out in accordance with the "Environmental Management Plan" for Leitch Enterprises Pty Ltd, a copy of which is appended to this permit. The Environmental Management Plan is part of this permit and compliance with its provisions is a condition of this permit. The Environmental Management Plan must not be varied without the prior written consent of the Responsible Authority.
8. Polluted drainage must not be discharged beyond the boundaries of the lot from which it emanates, or into a watercourse or easement drain but must be treated and/or absorbed on that lot to the satisfaction of Responsible Authority.
9. Water must not be discharged from the site other than in accordance with the approved drainage plan.
10. Dead birds must not be buried on the land, Dead birds must be either composted by a chicken composting machine, frozen before subsequent removal from the land or disposed of in a manner satisfactory to the Responsible Authority,
11. All trees and shrubs included in the approved Landscaping Plan shall be planted within six (6) months of the commencement of the development hereby permitted and shall thereafter be maintained in a healthy condition to the satisfaction of the Responsible Authority and any dead or diseased trees shall be replaced as soon as possible.
12. If the Responsible Authority determines that the amenity of nearby residents is adversely affected by the emission of an unreasonable level of odour from the poultry farm the operators must immediately take actions and/or undertake works to rectify the emission of odour to the satisfaction of the Responsible Authority.
13. Litter is to be used in all places where broiler chickens are to be kept and must be dry and of an approved substance capable of rendering droppings dry and inoffensive at all times to the satisfaction of the Responsible Authority.
14. Temperature control and water dispensing techniques must not permit litter to become damp.
15. All litter and associated waste must be removed from the site at the end of the batch/cycle and must not be stored on the site or distributed on the site as fertiliser except in accordance with normal agricultural practice.
16. All waste materials must be disposed of in such a manner as to render such materials harmless and inoffensive to the satisfaction of the Responsible Authority.
17. The amenity of the area must not be detrimentally affected by the use or development, through the:
(a) transport of materials, goods or commodities to or from the land;
(b) appearance of any building, works or materials;
(c) emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil;
18. The poultry sheds and all feed stores must be vermin and bird proof to the satisfaction of the Responsible Authority.
19. The permit holder must use its best endeavours to ensure that deliveries or removals are made via Tyabb-Tooradin Road and not through the Pearcedale residential area.
20. Other than the loading and removal of birds no deliveries to or removals from the site shall take place after 7.00pm or before 7.00am on any day without the prior written approval of the Responsible Authority.
21. The surface of the car parking and loading areas and access lanes must be treated to the satisfaction of the Responsible Authority to prevent dust and drainage run-off causing a loss of amenity to the area.
22. Noise levels emitted from the site must not exceed the permissible levels determined under State Environment Protection Policy (Control of Noise from Commercial, Industrial and Trade Premises within the Melbourne Metropolitan Area) No. N-1.
23. All outdoor lights must be designed, baffled and located to the satisfaction of the Responsible Authority to ensure that no direct light is emitted outside the site to prevent any adverse effect on adjoining land.
24. All vehicles used in the pick-up and transportation of live birds during night time hours shall be fitted with high performance mufflers to the satisfaction of the Responsible Authority and the permit holder shall use its best endeavours to ensure that such activities do not cause any detriment to the amenity by noise or excessive vehicle movements.
25. Chemical spraying is only to be conducted where dispersion conditions are good. Shed doors must be closed during and after spraying to ensure airborne sprays and odour are not transmitted beyond the site.
26. In the event of a spill, leak, fire or incident that may cause off-site odour, the permit holder must immediately notify the Responsible Authority.
27(a) A list of chemicals, disinfectants and other chemical concentrations used in the operation of the proposed sheds (including cleaning out thereof) must be submitted to the Responsible Authority for its approval and updated when necessary.
(b) No chemicals, disinfectants or other chemical concentrations, other than those on the list, are to be used in the operation of the sheds.
28. The permit holder/operator shall use all appropriate management techniques to the satisfaction of the Responsible Authority to minimise emission beyond the site to the detriment of any person of any poultry and/or chemical, disinfectant or associated odour and noise associated with the poultry farm operation hereby permitted.
29(a) Vermin bait stations may be placed around each broiler shed and feed store. Bait systems are to be regularly monitored with details of monitoring and results being recorded in a log book. The log book is to be kept for a period of twelve months after commencement of the permitted use, and shown on request to an officer of the Responsible Authority.
(b) Bait stations are to be of a design (approved by the Responsible Authority) to minimise the risk of native wild life gaining access to the baits.
(a) the development is not commenced within two years of the date of this permit; or,
(b) the development is not completed within two years from the date of commencement.
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.
NOTE: Unless no permit is required under the Planning Scheme, advertising signs must not be constructed or displayed without a further permit.
__________________ ___________________
Mr. W. Chow of Zoneworks appeared on behalf of the City of Casey.
Ms. L. Lowe of KLM Gerner Consulting Group, appeared on behalf of the Applicants and called Mr T.J. Pollock of Egis Consulting Australia as an expert witness.
Mr. D. Hayes, Ms. L. Brooks, Ms. E. Brooks and Mr. D. Counsell, each appeared on their own behalf.
1. This is an Application under Section 77 of the Planning and Environment Act 1987 (the Act) brought by M. and A.L. Leitch to review of a decision by the City of Casey to refuse a permit.
2. The proposal is for the extension of an existing broiler farm by the construction of two additional broiler sheds. The existing farm has three sheds and a capacity of 77,500 chickens. The proposal is to increase this number to 177,500 chickens.
3. The proposed sheds are intended to be 4.2 metres high to the apex and have dimensions of 128 x 18.45 metres. The proposal includes three new feed silos, a vehicle access way and a vehicle turning area to the rear of the sheds. It is also intended to enlarge an existing dam on the subject land. This proposed dam will be developed in accordance with the requirements of Melbourne Water as outlined in their letter to the Responsible Authority dated 11 November 1998.
4. The shed design is intended to be of the minimum tunnel ventilation style. This style of shed uses tunnel ventilation when cooling is necessary by drawing air through the shed by means of a bank of extractor fans located at one end. The air is drawn through evaporative cooling pads located at the opposite end to the fans to control temperature within the sheds. Minimum ventilation is used at times when cooling is not necessary, ie. when the birds are small or during evening and night time periods. Duty fans located near the shed ridge line draw air through vents located along the top side walls of the shed at these times. These vents are closed when the shed is operating in tunnel mode. Heating will be provided to the sheds when necessary by means of gas burners.
5. Shed side walls consist of "dwarf" solid concrete walls to a height of 0.6 metres sunk some 0.15 metres below the surface ground level to exclude vermin with mist green Colorbond walls above. The Colorbond walls consist of two layers with insulation material between.
6. The floor of the sheds will be a 300mm compacted clay base of low permeability, this base will be covered by an absorbent layer some 6 to 8cm thick of sawdust or rice to collect bird droppings during the growth phase. This litter is intended to be removed from the shed after each batch.
7. Water will be supplied to the birds from the mains system supplemented by water from the dam by means of an automated nipple drinking system with drip trays to prevent water falling onto the floor of the sheds. Feed will be automatically delivered to the birds by means of an auger system through enclosed ducts.
8. Vermin are intended to be excluded from a shed by means of the dwarf walls already mentioned, and the sheds will be bird proof. Provision will also be made for bait stations to be located around the exterior of the sheds. Dead and diseased birds are intended to be collected on a daily basis and frozen to be collected from the property.
9. The proposal also includes an upgrade to the existing sheds. The level of upgrade is limited by the design of the sheds particularly the oldest shed, Shed 1, which has the lowest bird capacity of 7,500. The Tribunal was informed that all three sheds have already had nipple drinkers installed. Further improvements include the installation of a tunnel vent fan in Shed 1, the installation of duty fans in the ridge of Sheds 2 and 3 to enable them to operate in minimum ventilation mode, the complete conversion of Shed 3 to tunnel vent design, and the installation of double curtains on Shed 2.
10. The proposed upgradings to the existing sheds were part of an application made near the end of the final day of the hearing by the applicant to amend the permit application to enable such works to be carried out, a permit for works being required in the new format planning scheme. The applicant at that time also requested the consolidation of the two lots that make up the subject site and the deletion of one shed from the application. The deletion of the shed was objected to by the third parties at the hearing because of concerns regarding the locational changes that might be involved. The Tribunal therefore made the amendment with respect to buildings and works but not with respect to the reduction in the number of sheds. These changes as outlined above are made under the provisions of Section 64 Schedule 1 of Victorian Civil and Administrative Tribunal Act 1998.
11. The subject site consists of two lots, one of 4.69 hectares which contains the existing three sheds, and the other of 6.07 hectares where the new sheds are intended to be built. As already mentioned these lots will be consolidated as part of the proposal.
12. The southern section of the land is traversed by a water course which drains towards Westernport Bay, part of this southern area is subject to flooding. Land to north of the subject site is used for market gardening, land to the west is partly used for market gardening and partly for grazing. Land to the east and to the south is used of grazing purposes.
13. The subject land lies on the edge of the area covered by the Casey Planning Scheme. Land to the south on the opposite side of South Boundary Road comes under the Mornington Peninsula Planning Scheme. There are up to eleven dwellings within a 500 metre radius of the subject site including the Brooks house on the opposite side of the Tyabb Tooradin Road, the Hayes house which is a newly constructed dwelling on land adjoining the subject site to the west, and a dwelling on the opposite of South Boundary Road on land owned by the Counsell family.
14. The new sheds are intended to be set back 70 metres from East Road and 40 metres from the boundary of Mr Hayes' property. The Tribunal was informed that the wall of the dam that is intended to be increased in capacity as part of the proposal is located on the common boundary between the subject land and the property owned by the Hayes family.
15. The title on which it is proposed to build the new sheds is of an irregular shape lying at the junction of South Boundary and Tyabb Tooradin Roads bounded by East Road. Land to the north, west and north-east of the subject site is laid out in a regular pattern with lot sizes of the order of 4 hectares. Lot sizes to the east and south are generally larger associated with the use of the land for grazing. The property at present contains two houses occupied by three generations of the Leitch family. The northern section of the subject land is leased to the adjoining neighbour for market gardening purposes, the southern section of the land however is not suitable for market gardening because of its flood prone nature and soil type.
16. The proposal was considered under the provisions of the new format Casey Planning Scheme which was gazetted on 26 August 1999. The site and surrounding land lies within the Rural Zone (RUZ3) which includes Intensive animal husbandry as a permit required use. The proposal also requires a permit for buildings and works under the provisions of the zone as a Section 2 use, and also because buildings are proposed with 100 metres of a Road Zone Category 1 and the proposal includes works on a dam with a capacity greater than 1 cubic metre.
17. The site is also covered by Schedule 3 to the Rural Zone which requires a minimum subdivision lot size of 8 hectares, and requires a permit for all earthworks which change the rate of flow or the discharge point of water across a property boundary.
18. The Responsible Authority is required to have regard to the State Planning Policy Framework, the Local Policy Planning Framework including the Municipal Strategic Statement and Local planning policies when assessing the proposal. Local policies of relevance to the present proposal, the Westernport Coastal Policy and the Poultry Farming Policy.
19. The Responsible Authority also had regard to the following two reports:
* Broiler Farming: A policy for the Westernport Region (March 1988)
* The Draft Victorian Code for Best Practice Broiler Chicken Farms (July 1999)
20. The use of the Westernport Region Policy with respect to broiler farming is legitimised in the new planning scheme at Clause 22.12-4 which requires the Responsible Authority to consider the following: with respect to broiler farms:
* The views and advice of the Environment Protection Authority
* Broiler farming: A Policy for the Westernport Region
* AQ2/86 Recommended Buffer Distances for Industrial Residual Air Emissions Environment Protection Authority
21. The Responsible Authority also had regard to a report by Phillips Agribusiness dated December 1997 - City of Casey Land Use and Rural Industry Analysis and a Report to the City of Casey by Ian Sargent with respect to soil quality in the Rural Farming Zones.
22. The Tribunal was informed that the Responsible Authority had no planning approval record for the original poultry farm, but permits had been issued for the land as follows:
23. The Responsible Authority required advertising of the proposal and six objections were received. The Responsible Authority referred the matter to the Environment Protection Authority and Melbourne Water.
24. The EPA's response dated 31 December 1998 noted that the proposal failed to meet the EPA's buffer guidelines and noted that the modelling indicated significant risk of events of extensive offsite odour under worst case conditions. The EPA's letter went on to say:
"Modelling and risk assessment is a useful planning tool, but the real test is operational performance. Should the Council decide to approve the development, after consultation with interested parties, we suggest performance based planning conditions offer a means of safeguarding the environmental quality of neighbouring households (including those who feel they are adversely affected by the existing sheds irrespective of the current proposal) and the interests of the applicant.
Performance based planning conditions should include development of agreed contingency plans which mandate further odour controls should offensive off-site odour occur, as verified by independent assessment. This approach is broadly mooted in the EMP provided by the applicants in Sections 3.2 and 6 of their document. We suggest the 'triggers for action' need to be more carefully defined through discussion of different scenarios and then incorporating a workable procedure into the planning permit.
This approach takes a whole site management perspective and assumes that the best outcome is reducing net site odour emissions, rather than just focussing on the application for new sheds. Any action to improve the operation of the older sheds is likely to have a disproportionately positive effect in reducing odours, compared to changes to the new shed design. This approach will only be feasible if Council is able to devote staff resources to immediate independent assessment of odour if complaints occur."
25. The letter was accompanied with a list of suggested principles to guide the development of performance based planning conditions for broiler farm extension proposals.
26. Melbourne Water responded by letter dated 11 November 1998 subsequent to seeking further information. In their letter Melbourne Water indicated that they did not object to the proposal subject to certain conditions being included in any permit that might issue.
27. The Responsible Authority at its meeting on 1 June 1999 resolved to refuse a permit on the following grounds:;
(1) The application does not meet the Environment Protection Authority buffer requirements.
(2) The application does not fully achieve compliance with Council policy.
28. The Tribunal is of the view after the hearing the submissions before it that the issues in this appeal can be reduced to the following:
The Tribunal is of the view that each of these issues need to be considered in the context of the existing activity on the subject land and the surrounding land uses.
29. Odour was the overriding of the concern of objectors to this proposal. It was Mr. Hayes and Mrs. Brooks evidence that they are at present significantly affected by odour from the sheds, not only in Mr. Hayes' case from the smell of the developing chickens and the associated litter, but also from the chemicals that are used to disinfect the sheds when the fully grown birds are removed.
30. The Responsible Authority assessed the proposal against the EPA's recommended buffer distance, the Westernport Broiler Farm Policy and the draft Victorian Code for Best Practice Broiler Chicken Farms. The proposal fails to meet the EPA's recommended buffer distance of 500 metres between a broiler farm use and a sensitive receptor in that there are of the order of 11 houses within the 500 metres of the proposed and existing sheds. The proposal also fails to meet a number of the requirements of the Westernport policy including; the number of dwellings within 400 metres of the proposed development, the setback from a public road and the setback from a watercourse.
31. The Tribunal has in recent times been critical of the specific requirements of the Westernport Code and the EPA buffer distance on the basis that they have not been substantiated by any valid scientific investigation. The Tribunal has had particular concerns with respect to the Westernport Codes criteria which permits up to 10 houses within a 400 metre buffer distance and a minimum buffer of 100 metres for a single dwelling. The Tribunal is uncomfortable with the suggestion that any impact is satisfactory for a fixed number of dwellings, but not for an additional dwelling.
32. A number of studies have been carried out since the Westernport Broiler Policy and the setting of the EPA buffer distances. The studies have used the AUSPLUME model to predict odour concentrations within the vicinity of broiler farm operations. The models require as input emission data and meteorological parameters. Odour concentrations predicted by the modelling process are dependent on the quality of the input data. The applicant was fortunate in the present circumstances in having odour emission data taken in 1996 by the EPA on samples from Sheds 2 and 3 on the subject land. The measurements were undertaken in November and the chickens at that time were 5½ weeks old. Odour emission values used for the proposed sheds were taken from measurements on similar sheds at Pakenham and Lang Lang. Account was taken of the number and age of birds in the modelling calculation, and in the case of the new sheds, the variation of emission with ambient temperature as deduced from the Pakenham and Lang Lang shed measurements was factored in. The Tribunal accepts that the approach used by Mr. Pollock is appropriate, however it is the Tribunal's view that the number and range of emission measurements is insufficient to confer certainty on any model results derived from them. In this regard the Tribunal notes that the model has never been validated for broiler sheds in a field trial.
33. The meteorological conditions which have the potential to result in higher odour concentrations are those associated with poor mixing, ie. stable conditions and light winds, and as a consequence are dependent on local topographical conditions and less readily represented by data taken from the nearest available station. In the present case, met data was taken from Long Island Point some 8.5km to the south.
34. The more recent draft Victorian Code, which has been on public exhibition and is now a subject to a Panel review, sets a number of buffer standards for broiler farm operations which are a function of the so called class the farm falls into, and the number of birds involved. Class A farms meet the most stringent criteria, the stated intent is that the development of a poultry operation on such farms will be "as of right" provided all other aspects of the code are complied with. A permit will still be required, but no public notification or advertising is necessary. Requirements for Class B farms are less stringent and advertising will be required on such farms, a minimum of 200 metres from shed centroids to the property boundary is stipulated. All other proposal fall within Class C and require that an environmental risk assessment be carried out. There is no question that the proposed development would fall within Class C of the new code. The risk assessment requires, among other things, the modelling of odour emissions. The Tribunal was supplied with expert evidence from Mr. Pollock of Egis Consulting with respect to the odour impact of the proposed development. The odour output from the model is plotted as odour contours at the 99.5% frequency of non exceedence level (3 minute averaging time) on the B2 scale. The 99.5% frequency level represents a value that is predicted to be exceeded on no more than 44 hours in any one year. The Tribunal has in the past accepted the use of an odour threshold of five odour units at the 99.5% level on the so-called B2 scale which relates to the method used to quantify the odour, Appeal No. 1998/8023 P & M Hermans v Shire of Cardinia, Mrs E. Glendinning and others is an acceptable standard at a sensitive receptor in the Rural Zone. The modelling results indicate a degree of non-compliance of the existing farm with this standard. The level of non-compliance is increased by the inclusion of the two new sheds, the number of houses that lie within the 5 odour unit contour increasing from 3 to 5 with two further properties being in a marginal position.
35. Mr. Pollock conducted a further calculation for the amended proposal which includes conversion of Shed 3 to minimum tunnel ventilation design, the addition of duty fans to Shed 2 and the installation of a tunnel vent in Shed 1. This calculation indicates that such measures ensure the odour thresh-hold of five units can be met for all neighbouring dwellings.
36. The Tribunal has already expressed its reservation with respect to the weight that can be put on the predicted odour unit contours, both with respect to their absolute values, as a consequence of concerns about the quality of emission data, and with respect to their location because of doubts related to the use of a meteorological data file from a distant met station that does not consider the micro meteorology of the subject site. The Tribunal however is of the view that the model does allow for the testing of the impact on the relative odour unit contours resulting from the upgrading of Sheds 1, 2 and 3 as proposed.
37. The Tribunal therefore finds that the consequence of upgrading the sheds would together with the two new sheds result in an odour regime that is comparable to that which exists at present. The Tribunal however is aware of the minimum buffer distance available on the subject land and the proximity to a number of dwellings of the proposed development. The Tribunal appreciates that lot sizes in the area are small and has previously found in these circumstances that adjoining property owners are entitled to protection from odour nuisance not only at their dwelling but over a reasonable proportion of the surrounding land in their ownership. In this regard however the Tribunal is aware that the majority of properties in this area, although small, are working farms associated with horticulture and further that a number of these properties used chicken manure as a fertiliser.
38. Mr. Pollock provided the Tribunal with a calculation of the odour impact associated with the spreading of fertiliser on the market gardens to the north. These calculations indicated a significant impact, of the order of 200 odour units depending on conditions, at the Hayes property. The Tribunal has some reservations about the assumptions made by Mr. Pollock in his calculation particularly with respect to the odour emission rate being 10 times that measured in shed litter but does note the high background odour obtained by the EPA when measuring the odour emission rates from Shed 2 in November 1996. The Tribunal concludes that there is an odour impact associated with market gardens in the area that is of a similar nature to the emission of the chicken shed. The Tribunal considers this a mitigating factor that needs to be considered in favour of the proposal.
39. In conclusion it is the Tribunal's view with respect to the odour impact of the proposed development that the closeness of the development to other sensitive uses in the area requires a significant margin of safety to be imposed with respect to the development. The Tribunal however is of the view that the permitting of one new shed on the Leitch property together with the upgrading of the existing sheds would result in an odour regime that in all probability would be more satisfactory than that which exists at present. The Tribunal is therefore prepared, with respect to odour considerations, to grant a permit subject to new plans reducing the number of new sheds proposed from two to one.
40. The Tribunal is aware that there were concerns expressed about the chemical smells associated with the disinfecting of the sheds between batches. The spread of odour from such activity would be very similar to that associated with the odour from the sheds ie. favoured by similar meteorological conditions. The Tribunal is of the view that such disinfecting occurs on a discrete number of occasions per year and that it would be appropriate to require the applicant to carry out such disinfecting under meteorological conditions that favoured dispersion ie. during the day and not when weather conditions are still.
41. Concerns was expressed by neighbours with respect to noise associated with trucks most particularly because bird pick up takes place at night. It was generally accepted that there is machinery noise in rural areas but that this is intermittent and that the proposal would represent a more frequent source of noise activity and at a time when people are generally sleeping.
42. It was Ms. Lowe's evidence that there will be no more than two truck trips during the day to the subject land and further that there had been changes in the industry which resulted in a split of pick-ups between day and night time resulting in a consequent reduced amenity impact. Further she informed the Tribunal that the forklifts used within the shed to load the birds would not be fitted with reversing beepers. It was further pointed out to the Tribunal that market gardeners often start operating at 4.00am in the area.
43. The Tribunal is of the view that truck noise in the early hours of the morning and late in the evening is not unusual in a rural environment and that the proposed development, although adding to this, would add to it only on a number of discrete occasions. The Tribunal however thinks that it would be appropriate for some measures to be taken to mitigate noise impact on adjoining properties. These measures should include mounding to the east of the sheds and acoustic fencing along the part of the west boundary in line with the proposed new shed.
44. The two new sheds would have resulted in the order of 86 additional truck trips during each ten week chicken batch. The reduction in the number of sheds would reduce this number to 43. These vehicles will travel along the Tyabb Tooradin Road south of the site. This road is fully constructed and sealed. The access to the site is proposed to be moved closer to the Tyabb Tooradin East Road intersection and this will serve to reduce the impact on the Brooks property. The Tribunal concludes that the impact will be acceptable in the above context. The truck numbers will be increased from the present 52 to 95 per batch and the number of night time pick ups is likely to be unchanged because of changed practices in the industry.
45. Some concern was expressed about the nature of the intersection of East Road with Tyabb Tooradin Road. The Tribunal is of the view that although the intersection meets the main road at an oblique angle, the intersection treatment is such as to ensure good visibility and the increased level of traffic should not be a problem and will not provide any additional risk with respect to the use of the road or result in excessive additional wear and tear.
46. The Tribunal was informed that the walls of the proposed shed will be mist green Colorbond and that extensive landscaping was intended. There was some criticism about the effectiveness of the existing landscaping on site, however it would appear that the species used were those required in the landscaping condition placed on an earlier permit. The Tribunal in particular finds that this is one of the few broiler properties that it had seen where the imposed landscaping conditions have been correctly implemented, and the Tribunal is confident that the further landscaping requirements placed on the applicant would also be implemented. The Tribunal considers that it is possible to mitigate the visual impact of what is now to be a single additional shed on the property from being a significant visual intrusion on the amenity of this rural area.
47. The nature of the activity is such that in the Tribunal's view, the probably of waterway contamination is low. The Tribunal also notes in this regard that Melbourne Water was fully aware of the closeness of the proposal to its drain and to flood prone land and offered no objection to the proposal.
48. It was argued by Mr. Chow on behalf of the Responsible Authority that a significant amount of the site was located on Class 1 soil. The Tribunal agrees that this is indeed the case for the northern part of the land but the grading is not applicable to the southern section. The part of the northern section of the land that is available and suitable for intensive agricultural activity is at present used for that purpose and this is unlikely to change as a consequence of the proposal. The area to be occupied by the new shed is on the edge of the quality soil and is the Tribunal's view will not of itself represent a significant alienation of potential land that could potentially be used for intensive agricultural purposes.
In light of the above the Tribunal is of the view that the application for review should be allowed in part and the Responsible Authority's decision is set aside.
___________________ ___________________
Leitch M & AL
City Carey [1999] VCAT 2253
Allowed in part. The Responsible Authority's decision to refuse a permit is set aside. A permit is granted for the development and use of the land for extensions to an existing poultry farm (broiler farm) subject to 30 conditions including: reduction to one new shed (not two); deletion of Shed 5 and associated changes; mandatory upgrading of existing Sheds 1, 2 and 3; specific shed design and ventilation requirements; dam construction to Melbourne Water specifications; drainage and pollution controls; landscaping; noise attenuation measures; odour management protocols; chemical use restrictions; vermin control; and permit expiry provisions.