Victorian Civil and Administrative Tribunal|2009-08-14

The application, as amended, arose out of discussions between the applicant and the objectors. The applicant had originally applied for two, 320,000 bird broiler farms (Planning Applications PP116/08 Farm A and PP117/08 Farm B). The permit applicant also applied for a subdivision permit (Planning Application PP115/08) for re-subdivision of the land to accommodate the two separate farms. The Tribunal was informed by Mr D'Oliveyra that the objectors had come to an agreement with the applicant and would support a single 640,000 bird farm subject to a number of agreed conditions. Council informed the Tribunal that they had had limited time to consider the proposal and although they had given conditional support to the proposal, subject to the Tribunal's approval of the environmental risk assessment, they had had not had time to consider the 640,000 bird proposal in depth.
The Tribunal issued an order subsequent to the first days hearing adjourning the matter to 26th June 2009 and requiring the applicant to serve the notice of intent to amend the permit application in accordance with the requirements of Clause 11 of the VCAT Practice Note PNPE1 General Procedures to all persons and other agencies (including EPA, VicRoads, Corangamite Catchment Management Authority, Southern Rural Water and DSE). This additional advertising was not required to be made to the objectors represented by Mr D'Oliveyra.
Council subsequently resolved at a meeting on 24 June 2009, two days prior to the hearing, to:

Advise the Victorian and Civil Administrative Tribunal at the review hearing on 26 June 2009, that Council would support the use and development of 210 Pierces Road, Beeac (CA 140, 141, 148, 149, 152 and 153, Parish of Ondit) for a single 320,000 bird capacity broiler farm which complies with the requirements of the Victorian Code for Broiler Farms 2001 providing an Environmental Risk Assessment is undertaken for odour, dust and noise and demonstrates that the risk from odour, dust and noise is acceptable and the boundary buffer and separation distances are adequate to protect the amenity of the nearby sensitive uses.

The proposal, as amended, is for one, 640,000 bird broiler farm. The birds are to be contained within ten 175m long by 18m wide sheds as set out on the plans substituted by amendment at the hearing. The sheds will run east-west and will be tunnel ventilated with exhaust fans located at the western end.
The shed design is of the minimum ventilation tunnel type which is generally considered to be best practice technology within the industry. Air is drawn through the sheds by way of the extraction fans, the incoming air being cooled by evaporative cooling pads located at the eastern end of each shed. The sheds are also provided with a cross-flow ventilation system which is applied when the birds are less than 21 days old and a lesser airflow to maintain temperature is required. It was Mr Pollock's evidence that the cross-flow ventilation capacity was some 9% of the tunnel mode ventilation capacity.

The total land area is some 193 hectares made up of six crown allotments (CA140, 141, 148, 149, 152 and 153 Parish of Ondit). The land has a frontage of 1,595m to Pierces Road and 1,211.37m to Weering School Road. Pierces Road is an unsealed gravel road and Weering School Road has a sealed pavement. A 10m wide landscape buffer is proposed along the full length of the southern boundary of the property and for 600m along the eastern boundary. Access to the farm will be via the Weering School Road. The shed complex will be visually shielded by a 15m wide landscape buffer.
The land is some 5km from the township of Beeac. Properties in the area are generally used for farming purposes including the grazing of livestock.
The separation distances from the centroid of the farm complex (the centroid being the midpoint of the shed complex at the exhaust fan end of the shed, ie between Sheds 5 and 6) are as follows:
- 950m from the nearest dwelling to the east of the site;
- 873m from Pierces Road;
- 335m from the southern side boundary;
- 860m from the eastern side boundary; and
- 735m from the western boundary.
Dwellings on neighbouring land identified as R1, R2, and R3, are located to the north of Pierces Road at separation distances of 1,380m, 995m and 1,135m from the shed centroid and Dwellings R4 and R5 located to the east of Weering School Road at separation distances of 1,025m and 950m respectively. The plans show two dwellings proposed within the site to the north of the shed complex off Pierces Road and one proposed dwelling at a distance of 950m on adjoining land to the north-west.

The subject site is located within the Farming Zone. The schedule to the zone specifies a minimum subdivision area of 80 hectares. A permit is required under the zone provisions for a broiler farm subject to the requirements of Clause 52.31. Under the provisions of the clause a broiler farm must comply with the Victorian Code for Broiler Farms, September 2001(the broiler code).
The western part of the subject site is included within the Land Subject to Inundation Overlay (LSIO). The area of the site to be occupied by the proposed broiler sheds and associated works is outside the LSIO.
State Planning Policy of relevance to the proposal is contained at Clause 17.05 - Agriculture and Clause 17.06 - Intensive Animal Industries.
Clause 17.05 seeks to ensure that the State's agricultural base is protected from the unplanned loss of productive agricultural land due to permanent changes of land use. The clause requires consideration, in assessing a proposal to develop agricultural land, of the impact of the proposed development on the continuation of primary production on adjacent land with particular regard to land values, to the viability of infrastructure for such production and the compatibility between the proposal and the existing uses of the surrounding land.
Clause 17.06 has the objective to facilitate the establishment and expansion of cattle feed lots, piggeries, poultry farms and other intensive animal industries in a manner consistent with orderly and proper planning and protection of the environment. The clause requires the responsible authority to have regard to the broiler code in assessing a broiler farm application.
Local Planning Policy at Clause 21.03 and 21.04 seeks to maintain the viability of large scale agriculture and the retention of high quality land.
The broiler code is an incorporated document. The particular provisions of the Planning Scheme at Clause 52.31 state that any proposal for a broiler farm must comply with the requirements of the code. The Tribunal notes that the State Planning Policy provisions with respect to intensive animal husbandry require regard to be had to the code rather than the mandatory compliance contained in Clause 52.31.
The broiler code divides farms into Class A, Class B, Class C and Special Class farms. The classification of farms into Class A and B are dependant on the farm capacity in terms of bird numbers and the ability to meet buffer boundary and separation distance requirements where boundary buffer is the shortest distance from the centroid of the emission points on the shed and the property boundary and separation distance is the distance from the shed centroid and the nearest sensitive use eg a dwelling. A Class A farm will meet both of these requirements within the property boundary while a Class B farm will have part of the separation distance on neighbouring land.
The requisite boundary buffer and separation distances for Class A and B farms are set out in the broiler code for farms of up to 320,000 birds. Farms that have a capacity for more than 320,000 birds are classified as Special Class Farms. Special Class Farms require the boundary buffer and separation distance requirements to be established by way of an Environmental Risk Assessment (ERA) which includes modelling of odour, dust and noise impacts on neighbouring sensitive uses.
The proposal, as amended, fits the category of a Special Class Farm. For a Special Class Farm the boundary and separation distances are required to be met within the property boundary. These distances are to be established by way of the Environmental Risk Assessment. The standard required to be met for odour is 99.9% of model predictions of maximum odour levels calculated as three minute averages and not exceeding 5 odour units (ie. five times the odour threshold as measured by the EPA B2 method) at and beyond the boundary buffer. This standard allows for nine exeedances in any one year.
The State Environment Protection Policy, Air Quality Environment (AQM) at Schedule C sets out the procedures for odour and dust emissions modelling from stationary sources. The model to be used is specified as the currently approved version of Ausplume. The criteria for odour as has already been mentioned is five odour units at the 99.9 percentile level (calculated on three minute averages) at and beyond the boundary. The dust standard as contained in the State Environment Protection Policy is a total suspended particle value of 183 mg/m3 at the 99.9 percentile (one hour average).
The EPA has prepared an Interim Guideline for Environmental Risk Assessment (Odour) (ERA) for broiler farms. There have been a number of draft ERA guidelines developed but at this point in time there is no final version. The September 2008 Working Draft version of the ERA guidelines states that the:

SEPP, AQM specifies that in situations where the design criteria cannot be met a risk assessment taking into account specific circumstances and demonstrating that the beneficial uses of the environment are protected will be considered.

The draft ERA guidelines outline three stages in developing a risk assessment. Stage 1 is the modelling of odour to determine whether the design criteria contained within the AQM are met. In Stage 2, if the design criteria cannot be met, an assessment of the risk to surrounding sensitive uses is required. If the risk assessment shows the impact to be acceptable, no further assessment is required. Where risk or impact is not acceptable, Stage 3 requires the proposal to be reconsidered in terms of re-siting of sheds, reduction in farm size, re-orientation of sheds and odour control technologies.
The above outline of the staged process would appear to imply that the determination of acceptability of impact should be based on an actual risk assessment. However the AQM, the broiler code and the ERA draft guidelines require all state that odour emission rates must be based on the worst case scenario during normal routine operations and that the design criteria of five odour units at the 99.9 percentile must be met at and beyond the boundary of the premises with the failure to meet the standard as well as a number of other criteria requiring the default criterion of one odour unit to apply. We note that for a Class B farm the separation distance is to the nearest sensitive receptor and not the property boundary and question whether in a rural environment this is not the point where typically the standard should be met.
The AQM has as its policy intent:

Emissions to the air environment will be managed so that the beneficial uses of the air environment are protected.

The AQM outlines the beneficial uses to be protected throughout the Sate of Victoria. The beneficial uses of relevance to odour and dust emissions is the protection of local amenity and aesthetic enjoyment.
Schedule A of the AQM deals with air emissions and the standards or design criteria that need to be met to protect beneficial uses. Footnotes 8 and 9 to the Schedule deal with odour emissions for a range of activities including intensive animal husbandry. Footnote 8 states the design criteria for new sources of general odour is the odour detection threshold (one odour unit) should be applied at and beyond the boundary of a premises. Footnote 9 deals specifically with intensive animal husbandry and states:

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

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

We acknowledge the argument put by Mr Pollock that there is some ambiguity in these provisions, in particular, Footnote 9 would seem to allow for discretion with respect to the criteria to be applied.

It was not contended by the council that the proposed use and development is inappropriately located in the Farming Zone. Nor was it contended that the proposal is contrary to the general thrust of planning policies relating to use and development in farming areas, or that the outcome proposed would be unacceptable from a visual viewpoint, or traffic. As a general proposition, we accept that this type of use and development is appropriately located within farming areas.
The central issue in this matter is whether the proposal meets the requirements of the Planning Scheme, the AQM and the broiler code with respect to odour and to dust.
Evidence was called by the applicant from Mr Tim Pollock of GHD and by the Responsible Authority from Dr Iain Cowan of URS. Mr Pollock carried out dispersion modelling of the odour impact using AUSPLUME and provided an environmental risk assessment based on the results of the model. Dr Cowan provided a critical assessment of Mr Pollock's witness statement. Mr Pollock subsequently provided a response to Dr Cowan and further calculations of the odour impact making use of stub stacks to disperse emissions more effectively. A number of points of contention arose with respect to the input data to the ASUPLUME model used by Mr Pollock and his risk assessment methodology. It is important to note that Dr Cowan did not criticise Mr Pollock's application of the AUSPLUME model his criticisms being centred on the input data and the assumptions associated with that data.

Dr Cowan was critical of the odour emission rate data used by Mr Pollock. We are satisfied, on the evidence of Mr Pollock and the references provided by him, that the emissions rate data used by him represent the results of a number of studies into emission rates from broiler sheds and are the best available.
Emission rates from broiler sheds vary according to the age of the birds, the downtime in the sheds, the time of day and the season of the year. Mr Pollock in his modelling made use of the information available on the actual emission rates from the sheds as a function of bird age, the season and diurnal temperature. As part of his calculation he assumed a conservative minimum emission rate of 200 odour units per cubic metre per second per thousand birds at times when the ambient temperature was less than 12o, this being the time when ventilation from the sheds is at a minimum or when the sheds are empty or the birds are less than 21 days old.
Dr Cowan acknowledged that the emission estimate used by Mr Pollock was a reasonable reflection of the actual emissions. It was however his contention that the AQM, the broiler code and the draft ERA guidelines require the worst case value to be used, 24 hours a day, 365 days a year.
The application of worst case emissions would require some 18,000 hectares to contain the five odour unit contour within the site. Dr Cowan was prepared to concede that it would be reasonable to use a winter and a summer odour emission rate value as opposed to the worst case value the AQM requires. Even with this concession, Mr Pollock estimated that the use of summer and winter emission rates would result in the need for some 10,500 hectares to contain the five odour unit criteria.
The outcome of the application of maximum emission rates, even taking into account seasonal variations, results in a land area requirement for this type of use that is, in our view, obviously absurd. The main consequence would be that no large broiler farm development could occur within reasonable distance of markets for the produce. This conclusion was also reached by the Tribunal in the case of Krusic-Golub v Golden Plains Shire Council at paragraph 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.

We are therefore of the view that, given the intent of the AQM and broiler code requirements is to ensure that the amenity of sensitive receptors is protected, the most appropriate odour emission data to be used should be that which most closely resembles the real situation. We consider that the use of such data will be conservative given the above discussion on the farm size required to contain a 640,000 bird operation.

Mr Pollock carried out a calculation of the amount of land necessary to contain the five odour unit standard at the 99.9 percentile within the boundaries of a site using variable emission data. Some 1,900 hectares would be required with a reduction in the area to just over 1000 hectares if stub stacks are used.
This again seems excessive and logically inconsistent with the boundary buffer and separation distances set in the Broiler Code for Class A and B farms. Such distances are considered in the Code to be sufficient to protect sensitive uses from the impact of a 320,000 bird operation.
The boundary buffer and separation distance for a 320,000 Class A farm as required in the Code, would in our calculation, be contained in a property of some 50 hectares. There therefore appears to be some lack of consistency in the requirement for a farm of twice the number of birds needing to be 20 to 40 times this area. In this regard we note that the previous application for two, 320,000 bird farms on the land, subject to the subdivision being approved, would have met the requirements for Class B farms and effectively allowed for 640,000 birds on the same land area.

Mr Pollock calculated odour contours resulting from the placement of two stub stacks per shed. The results indicated a twofold reduction in the 99.9 percentile odour levels with the effect being more marked for Residences 1, 2 and 3 to the north of Pierces Road. Dr Cowan was of the view that the beneficial impact of stacks would be improved if the stack height was increased to 2.5 times the shed ridge height and the exit velocity to 10m/s.
Mr Pollock provided calculations for the higher velocity exit from higher stacks. The results show a small to negligible effect, the greatest impact being for Dwelling 5. It was his contention that the benefit was minor. In particular he was of the view that a higher exit velocity was only of benefit in strong wind situations, these however are not the situations where maximum odour impact is experienced.
We accept the evidence of Mr Pollock that the optimal benefit will be obtained from the placement of two, five metre high stub stacks with an exit velocity of 6.7m/sec on each shed; with the stacks to be attached to one west facing duty fan and the easternmost cross flow fan for each shed.

Dr Cowan was critical of Mr Pollock's use of the meteorological file TAPM Version 2 for the year 2002 as the met file for his model calculation. He provided the Tribunal with a comparison of the results for TAPM Version 2 2002 with the updated TAPM Version 4 for 2008. The TAPM Version 2 results showed a higher frequency of lower velocity events.
Mr Pollock conceded that TAPM 4 was the more appropriate file and provided a recalculation of the peak odour limits at the nearest residences making use of the TAPM 4 for the year 2008. The calculations were done for the proposal with stub stacks added. The results show an increase in peak odour levels at Dwellings 1 and 2 from 4.9 to 7.3 and 5 to 7.2 respectively; and Dwelling 3 a reduction from 7 to 5.3 with effectively no change for Dwellings 4 and 5. We accept Mr Pollock's contention that the change of met file was not of an order of magnitude that affected the final assessment the use of stub sacks having an overriding benefit.

Dr Cowan was critical of the failure of Mr Pollock to take account of the change in batch sequence which would inevitably occur from year to year. He was of the view that this would have an impact on peak odour levels because emissions would not always peak under the most favourable meteorological conditions for odour impact.
Mr Pollock carried out a number of calculations with batch start dates deferred by two, four, six and eight weeks respectively. The results indicated that the effect of batch sequence was very small and that the odour input data used by him was less than 4% below the eight year maximum. In our view this would be well below the margin of error.

A risk assessment is called for in the AQM at Footnote 9 of Schedule A. The ERA guidelines (2008 draft) quotes the footnote to the schedule with the addition of the following statement:

If any of these criteria cannot be met then the default of one odour unit for general odour applies.

This appears to be an unequivocal statement that the draft guidelines would require the 99.9 percentile by odour unit contour to lie within the boundaries of the property. However, this contention does not fit comfortably with the draft guidelines three stage approach to determining the risk assessment of odour which is a common element in each of the guideline drafts.
Stage 2 of the 2008 version of the guidelines requires modelling to be undertaken to demonstrate the proposal does not impact on the beneficial uses of the environment stating:

The risk assessment process and a subsequent decision on the acceptability of a proposal are undertaken on a case by case basis taking into account site specific information.

The draft guidelines outline the data that needs to be had regard to in carrying out a risk assessment but does not provide any methodology about how the data should be used to determine risk.
Mr Pollock developed a risk assessment methodology which takes account of the odour levels and the frequency of exceedance of those levels at each residence in a matrix form. Mr Pollock's methods exclude the exceedences of five odour units that occur between 12 pm and 5 am, these being the hours when the majority of the population would be asleep. Dr Cowan was of the view that this was an inappropriate exclusion on the basis that some people may well be awake at that time and that some may be woken by the odour.
Mr Pollock contended that it would take several thousand odour units to cause a sleeping person to awake and that the probability of people being up and about during the excluded hours is very low and it is not therefore inappropriate in determining the risk to amenity impact to exclude them.
We agree with Mr Pollock's argument and also note that at the excluded times people would in all probability be indoors where the odour impact is less.
Mr Pollock assessed the risk of amenity impact at each of the dwellings to be low. The number of exceedences of the 99.9 percentile 5 ODU standard with the benefit of the stub stacks and excluding exceedences that occur between 12 midnight and 5 am was six occasions for Dwelling 1, five for Dwelling 2, eleven for Dwelling 3, nine for Dwelling 4 and eight for Dwelling 5. An exceedance of 10 odour units was predicted on one occasion for Dwellings 2 and 5, on three occasions for Dwelling 3 and on two occasions for Dwelling 4. The maximum exceedance of 20 ODU occurred on one occasion for each of Dwellings 4 and 5.
The question then arises as to whether these levels of exceedance are acceptable given the SEPP and Code requirements for an exceedance of no more than five odour units at the boundary and beyond of the property ie. on nine occasions in any one year.
We find in this regard that the central consideration has to be whether the beneficial uses, that is the amenity of the dwellings is protected. It is essentially our view that with odours associated with farming activities, the impact of odour on broadacre farmland is not a critical consideration. However, we accept that the amenity of dwellings should be preserved and note that this appears to be the intent of the separation distance requirements applied to a Class B farm in the broiler code ie. that part of the required separation can be on adjoining land.
On balance we are satisfied, given the preceding analysis and discussion, that the amenity of adjoining sensitive uses will not be unreasonably impacted by the proposal. The number of exceedances of the standard at the sensitive receptors during the hours when the impact on amenity would be expected to be greatest only occurs for Dwelling 3 and then only on two occasions. We find that this level of impact is minimal and probably would not be detected.

The Tribunal has been critical in the past of the use of the 99.9 percentile standard which allows for only nine exceedences in any one year. It has been the Tribunal's view that the 99.5 percentile standard is more appropriate to a rural situation and more consistent with the separation distances for Class B farms as contained in the broiler code.
We are, however, cognisant that it is a requirement in both the AQM and the broiler code that the 99.9 percentile standard be met. In this regard we acknowledge Mr Jones' assertion that the AQM and the Code are subordinant instruments. A discretion remains available that may be exercised.
Section 84(b) of the Planning and Environment Act 1987 requires the Tribunal to take account and give effect to any relevant State Environment Protection Policy declared in any order made by the Governor-in-Counsel under Section 16 of the Environment Protection Act 1970. As the Tribunal stated in Krusic-Golub:

It is our view that taking account of and giving effect to the 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 consideration.

We note that the ERA draft guidelines call for a risk assessment to be undertaken in circumstances where the standard is not met. However, this document is only in draft form and contains within it a number of contradictions.
We also are aware that there are a number of uncertainties in the data and therefore modelling that are yet to be resolved, although there has been a significant improvement in the quality of data over recent years.
In addition, the odour standard refers to the EPA B2 measurement technique for determining odour. This technique has been superseded and there is some evidence that the new methodology is up to two times more sensitive ie 5 ODU on the B2 scale would register as 10 ODU on the new scale.

The only other matter of concern raised by the council is the potential negative impact of dust emissions from the proposal.
Dust emission information was provided in the initial environmental risk assessment. Total suspended particulars were calculated at the rate of 14.3mg per second per thousand birds and the PM10 emissions using a pro rata value of PM10 to total suspended particulate factor of 38%. Emission figures for a 640,000 bird complex, as calculated by Mr Pollock, were 9.2 g/s the total suspended particulates and 3.5g/s per PM10.
Mr Pollock acknowledged the criticisms of Dr Cowan with respect to pro ratering the total suspended particulates to obtain PM10 values which fails to take account of the loss by deposition of the coarser fractions of the total suspended particulate between the sheds and the residences. The result of Mr Pollock's re-calculation of the PM10 values demonstrate that in all cases the value is below the EPA criteria.
Dr Cowan was critical of the total suspended particulate TSP calculations because in the earlier documentation TSP was modelled as a series of sub-volume sources on the basis that the shed emissions were released along the full length of each shed. This approach is relevant to a situation when birds are less than 21 days in age. Subsequent calculations demonstrated that the dust emissions for birds of less than 21 days made a negligible contribution to the 99.9 percentile levels of total suspended particulates. It is for this reason that the later model calculations were made assuming the sheds were operating in tunnel mode.
We accept that the proposal readily meets the dust emission requirements for nuisance dust and that there is a low probability of any health issues associated with PM10 aside from the necessary precautions that need to be taken by people working within the sheds.

Mr D'Oliveyra explained that the residents of dwellings surrounding the site supported the establishment of a 640,000 bird farm over the previous proposal which involves two separate farms. Nonetheless, on hearing Dr Cowan's evidence, they remained concerned about the impacts of the proposal. In this regard Mr D'Oliveyra advised that the residents do not have the expertise or the resources to verify evidence of the technical nature that was presented by the two experts at the hearing. Ultimately, Mr D'Oliveyra simply submitted that the Tribunal should be satisfied that a permit should be granted on the basis that amenity impacts are not unreasonable.
It was clear on hearing the submissions from the council that the key issue revolved around whether the odour and dust emissions from the proposal would have an unreasonable impact on the beneficial uses of the environment, specifically in this case in relation to the impact on the amenity of sensitive receptors being nearby dwellings. We have carried out a detailed assessment of the proposal and the evidence against the AQM, the broiler code and draft guidelines. It has been demonstrated to our satisfaction that the amenity of the nearby dwellings will be protected.
Accordingly, given the zoning of the land, policy support for the location of this use within farming areas and the absence of unreasonable impacts on amenity of nearby dwellings, we find the proposal to be satisfactory subject to some minor changes, generally as recommended by Mr Pollock. These can be implemented by permit conditions. We will therefore set aside the council's decision and direct the grant of a permit.

Before the use and development commences, 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:

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 plans identified as Figures 2, 3, 4 and 5 Revision B dated 18 March 2009, substituted by the Tribunal as the application plans in Application for Review No P3024/2008 at the hearing, but modified to show: 1. The access road must be set 12m north of the southern common property boundary; 2. 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. Deletion of the spent litter pads; 4. Stormwater wetland treatment pond and other drainage; 5. Location, dimensions and specifications of any dams to be constructed on site; 6. Each shed fitted with two 1.2m diameter 5m high stacks with a 6.7m per second exit velocity with the stacks for each shed to be installed on the duty fans; one on a western tunnel fan and the other the easternmost cross flow fan. 2. Environmental Management Plan (EMP) which is site specific:

Water use and re-use plan addressing stormwater, rainwater and reticulated water use and re-use issues including a plan for the management 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.

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 including the landscape plan must be indigenous to the locality. The landscape plan must show: 1. A 10m wide landscaping buffer along the southern common property boundary between the Weering School Road frontage to the western property boundary; 2. A 10m wide landscaping buffer along the Weering School Road frontage from the southern common property boundary for a distance of 600m; 3. A 15m wide landscaping buffer around the perimeter of the broiler shed complex with dams and silos inside the landscape buffer. 4. The landscaping buffers must contain a mixture of canopy trees and shrubs to ensure effective screening.

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

Earthworks plan must be submitted that shows the extent of the earthworks to be undertaken including details on the amount of fill required for the construction of the development. The earthworks plan will be referred to the CCMA for comment.

The use and development approved by this permit must at all times be conducted in accordance with the requirements of:
- (a) The Victorian Code for Broiler Farms, September 2001, as amended;
- (b) The Code for Accepted Farming Practice for the Welfare of Poultry, December 2003, as amended;
- (c) Environmental Management Plan;
- (d) Each of the permit documents

The layout of the site and the size of the buildings and works, as shown on the endorsed plans, must not be altered or modified without the consent in writing of the Responsible Authority.
Prior to the commencement of the use, the owner must enter into an agreement with the Responsible Authority under Section 173 of the Planning and Environment Act 1987 stating that:

If the land is used and developed as a 640,000 bird capacity broiler farm on CA 140, 141, 148, 149, 152 and 153, Parish of Ondit, none of the aforesaid crown allotments may be disposed of separately to ensure the protection of the boundary buffer and separation distances required for a special class farm in accordance with the Victorian Code for Broiler Farms; 2. Other than a single dwelling on both CA 152 and CA 153 no further dwellings will be permitted on any crown allotment while the land is used in accordance with 4a.

The Responsible Authority would only agree to remove the Section 173 agreement should the planning permit expire and the land not be used and developed for a broiler farm or, if the use is established, the use of the land for a broiler farm ceases.

Evidence of lodging of this agreement in accordance with Section 181 of the Planning and Environment Act 1987 must be submitted to the Responsible Authority. All costs associated with the agreement will be met by the permit holder.

The poultry shed must be designed and constructed using a tunnel-vented exhaust or such other alternative technology which complies with the requirement of the Broiler Code, to the satisfaction of the Responsible Authority.
All trees and shrubs included in the endorsed landscape plan must be planted prior to the completion of the development and the commencement of the use and must thereafter be maintained to the satisfaction of the Responsible Authority. In the circumstance where there are seasonal conditions that would be unfavourable to the establishment of the landscaping, the permit holder may apply in writing to the Responsible Authority for an extension of time to complete the landscaping.
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:
- (a) An estimate of the quantity and type of materials, watering equipment, plants, etc. required; and
- (b) 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 the 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.

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.
There shall be no stockpiling of litter on the site. No used litter may be spread or otherwise disposed on the site without the further written consent of the Responsible Authority. Used litter not proposed to be spread on the site (as soil fertiliser) must be removed from the site as soon as possible after it is removed from the sheds. All trucks removing litter from the site must have covered loads.
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 and no removal may be undertaken on Sundays and public holidays including Christmas Day and Good Friday.
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 offsite disposal, dead birds must be held in sealed refrigerated containers or otherwise as approved by the Responsible Authority.
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.
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.
The poultry sheds and all feed stores must be vermin and bird proof to the satisfaction of the Responsible Authority.
The manner of discharge of all water from the site must be to the satisfaction of the Responsible Authority and the CCMA.
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. The only exception to this is in emergency situations when vehicle or plant breakdown make it necessary for feed to be delivered outside these times.
The permit holder shall require that all contractors and suppliers accessing the site from the Hamilton Highway do so by way of Weering School Road and Barpinda-Poorneet Road.
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.
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 runoff.
Security lighting or external floodlighting (if required) must be installed in such a manner that it does not create amenity problems outside the site.
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.
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.
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.
All goods and materials must be stored out of view of so as not be unsightly when viewed from nearby roads to the satisfaction of the Responsible Authority.
Prior to the commencement of the use, the permit holder must enter into an agreement with Barwon Region Water Authority (Barwon Water). The agreement must provide for a centralised potable water storage facility to be established to serve the development authorised by this permit. The agreement shall provide for the taking of up to 50 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 development. 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 other water users in this area.
An all waste septic tank disposal system is to be constructed concurrently with the new dwellings, such that all liquid waste must at all times be contained within the cartilage of the title. Such system must be designed and installed to the satisfaction of the Responsible Authority.
A permit to install an all waste septic tank system must be lodged and approved by the Responsible Authority prior to the commencement of works. Such system must be designed and installed to the satisfaction of the Responsible Authority before a permit to use the waste septic tank system can be issued.
The proposed septic tank system must not be located within 60m of the bank of any surface waters, unless the liquid waste is treated to the satisfaction of the Responsible Authority. Any such reduction in distance to the surface waters will be at the discretion of the Responsible Authority.
The floor of the manager's dwelling must be constructed no lower than 118.0m Australian Height Datum.
If any works will impact on a waterway or groundwater or will include the use of water for irrigation or commercial purposes from these resources or from a dam, soak or spring, it will be necessary for the land owner or permit holder to apply to Southern Rural Water for a licence in accordance with Section 51 or 67 Water Act 1989.
The permit holder must demonstrate that the Barpinda-Poorneet Road approach to the Hamilton Highway intersection is of sufficient standard to accommodate the turning path of articulated vehicles and/or 25m long B-double vehicles used in the operation of the broiler arm, to the satisfaction of VicRoads. If the standard of the intersection is insufficient to accommodate these vehicles, the permit holder shall be required to carry out widening of the approach to the Hamilton Highway intersection to accommodate these vehicles.
Access off Pierces Road will only be permitted for the approved dwellings. No access will be permitted from Pierces Road to service the broiler farm complex.
Access onto Weering School Road must be constructed to the minimum standard for farm access in accordance with the requirements of VicRoads' Guidelines for Truck Access to Rural Properties, April 2006 and allow sufficient storage area to cater for a B-Double to be parked within the gateway area ie. 25m off the edge of the road to the gate into the property.
Access points onto Weering School Road must be constructed with an asphalt overlay over Weering School Road for the length of the road abutting the access point as well as the sealing of the holding area required in Condition 35 to the satisfaction of the Responsible Authority.
Any B-Double vehicles 25m in length or in excess of 50 tonnes must obtain written consent from the Responsible Authority and VicRoads to use Weering School Road and/or Barpinda-Poorneet Road.
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 a plan, when approved, shall be endorsed and form part of this permit.
Prior to the construction of the access road, construction plans must be submitted showing the details of the standard of the access and any drainage requirements, to the satisfaction of the Responsible Authority.
This permit will expire if one of the following circumstances applies:

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

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

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

Lemic v Colac Otway SC [2009] VCAT 1637 (14 August 2009)

Lemic v Colac Otway SC [2009] VCAT 1637

At a glance

Court

Decision date

Source

Judgment (48 paragraphs)

Parties

Cases Cited (1)

Lemic v Colac Otway SC [2009] VCAT 1637 (14 August 2009)