Lewis v Central Goldfields SC [2015] VCAT 410

Lewis v Central Goldfields SC [2015] VCAT 410 | Case summary | Zoe

[29]

The subject land comprises some 128 hectares of grazing and cropping land. The western part of the site falls from a high point generally at the south-west of the property. It falls gradually toward an escarpment associated with Joyces Creek, within the property. This is part of an open valley leading to the Creek's flats. The Creek runs south-north and flows into the Cairn Curran reservoir.
A shed, commonly known as "Ivor's big shed", is on the west side of Clarkes Road at the crest of the hill. Clarkes Road traverses part of the ridgeline and rises toward the subject land before falling with the topography to the south. To the west, land falls toward Middle Creek.
Two broiler farms ["Farms 1 and 2"] are on land owned by the permit applicant generally described as being at the south-east corner of Clarkes Road and Rodborough Road. These farms were approved in 2008 and 2012 by the Council. Collectively they have planning approval for 884,000 birds (Farm 1 - 384,000 and Farm 2 - 500,000). They are operating. The proposed farm would be separated by around 1.4km from the nearest of those existing farms. Between the subject land and Farms 1 and 2 is a property known as the Phillips' land (emu farm) that we were advised has been conditionally purchased by the permit applicant subject to a planning permit issuing in the current proceeding. All of this land, and the subject land, are on an easterly slope of the north-south ridgeline between the two Creeks.
Surrounding land to the south and west is used for grazing and cropping. Larger properties are to the west of Clarkes Road including a holding described by the Objectors as being some 400 acres. Smaller land holdings are to the south and east across the Joyces Creek valley. Multiple lots are shown on cadastral plans. Ms Margaret Lewis described some of the background to the development of the area in her submission and evidence.
Clarkes Road is a gravel road whereas Rodborough Road is sealed in part. Strathlea Road (also known as the Glengower-Joyces Creek Road) is sealed. Mr Cameron and Mr Sutcliff explained the substantial financial commitment the Council made, with grant funds, to improve the road network to service Farms 1 and 2 including in Rodborough Road. We refer to this later in these reasons.
Rodborough Road extends east into the Mount Alexander Shire where it joins with the Pyrenees Highway. The crossing of the Joyces Creek is constrained and this is near to the intersection of Rodborough Road with the Strathlea Road.
Geological conditions vary across the locality as do the vegetation patterns, as we also refer to later. The Moolort Plains are open with some swamps and wetlands and limited timberlands.

[34]

It is common ground that:
- The subject land is within the Farming Zone, as is all other land in the immediate and wider vicinity.
- The subject land is affected by an Environmental Significance Overlay, Land Subject to Inundation Overlay and Salinity Management Overlay that apply in the eastern part of the property but beyond the area for the proposed use and development.
- A planning permit is required under Clause 35.07 to use and develop the land for a broiler farm.
- Under Clause 53.21 a permit application to use or develop land to establish a new broiler farm, or to increase the farm capacity of an existing broiler farm, must comply with the Victorian Code for Broiler Farms 2009 [Code].
- The proposal does not involve use or development for that part of the subject land that is within the Mount Alexander Shire and under the Mount Alexander Planning Scheme.
Various themes in State and local policy[6] are relevant to our assessment, in addition to, and reflecting, matters raised by the decision guidelines in the Farming Zone. They include protection of land and water resources including the water supply of the Cairn Curran reservoir catchment and minimising the risk of pollution, land use compatibility, environmental and design considerations, landscape and biodiversity values, heritage and tourism, and infrastructure. We do not recite them in these reasons but have had regard to the relevant policies and provisions.
Clause 11.12 addresses the Loddon Mallee South Regional Growth Plan. It reinforces the principles and strategies in other parts of the Scheme. It is unnecessary to fully recite the policies but again we have had regard to them such as environmental and water supply protection, encouragement of tourism, and supporting the sustainability of small towns.
Particularly relevant to the dispute before us is Clause 11.12-6 that addresses agricultural productivity and the Loddon Mallee South Regional Growth Plan's aim to attract new food processing industries. The Plan itself makes reference to the quality of the landscapes that attract tourists with the mix of towns, farmlands, forests and goldfields. With respect to intensive agriculture, including poultry, it states[7]:

[48]

The Code is part of the Scheme. It is cited in Clauses 14.01-2, 52.31 and 81.
The purpose of Clause 52.31 is to facilitate the establishment and expansion of broiler farms in a manner that is consistent with orderly and proper planning and the protection of the environment. As noted earlier, Clause 52.31 requires that a permit application to use or develop land to establish a new broiler farm must comply with the Code.
The Code nominates separation distances that are designed to provide sufficient space to minimise the risk of offensive odour and dust emissions under both routine and upset conditions adversely affecting the amenity of existing sensitive uses[15]. Separation distance requirements assume that the design and ongoing management of broiler farms employ best practice[16].
All broiler farms must meet the objectives and standards of six best practice Farm Design and Operation Elements set out in the Code[17]. The Code contains objectives, standards and approved measures for each element. Approved measures are approaches that are deemed to comply with the standard but are not mandatory. Alternative measures may be considered "if the applicant can demonstrate that the relevant Code objectives and standards can still be met with equal or superior performance"[18]. The Code states that "the onus rests with the proponent to demonstrate that the relevant objectives and criteria will be met". It continues that a responsible authority may require more detailed information to demonstrate compliance with particular elements, depending on the circumstances and risks of the proposed development and the development site.
As has been observed in other Tribunal determinations[19], at page 6 the Code states that compliance with the Code alone will not ensure all relevant planning scheme requirements are met. There are other planning matters to take account of with respect to the State and Local Planning Policy Frameworks and the purpose and decision guidelines of the Zone. However, in terms of potential environmental and amenity impacts, the Code addresses key amenity and environmental issues. It explains how animal welfare considerations are given effect through other legislation and processes[20]. It has also been observed in other Tribunal decisions that it is not the Tribunal's role to review the standards and measures in the Code. Rather our role is to apply the Code as we find it and that is how we have proceeded.
Finally, we note Practice Note 63 Applying for a planning permit to farm chickens (2012) is to be used by permit applicants and responsible authorities when assessing and deciding on a permit application.

[50]

The points made above about the application of the Code are not, we think, contentious. We are adopting the same approach as is typically the case in these types of applications.
However, this case raises a number of additional observations about the application of the Code in the circumstances of this land and this proposal. We are not aware that the same matters have arisen in other Tribunal proceedings. The following are among them, and are matters to which we return to as relevant to the assessment of the planning merits of this permit application and particularly the consideration of Approved Measure E1 M1.3:
- The lack of any specific guidance in the Code as to what form of assessment under Approved Measure E1 M1.3 should be undertaken given that an Odour Environmental Risk Assessment [OERA][21] is not directed and noting that EPA Publication number 1509 November 2012 relates to an odour risk assessment with respect to special class farms and farm clusters.
- The relevance of the existing odour environment to an analysis of additional separation distances, if required, under Approved Measure E1 M1.3.
- The relevance of increased separation distances assessed as being required as a result of local meteorological and topographic circumstances under Approved Measure E1 M1.3 that have the consequence of causing separation distances nominated for an existing farm and a proposed farm to overlap.
- Nominating a separation distance for an existing broiler farm with more than 400,000 chickens based on the extrapolation of Formula 1 in the Code.
Unlike previous permit applications for broiler farms considered by other divisions of the Tribunal to which we were referred by the parties, this case has involved competing evidence and odour assessments with respect to local meteorological and topographic circumstances that are relevant under Approved Measure E1 M1.3. Local meteorological and topographic circumstances can affect the dispersion of residual air emissions. A number of Tribunal decisions have stated that no attention was drawn to these matters as being relevant to an assessment[22]. In 134th Larena Pty Ltd, the Tribunal proceeded on the basis of an increased separation distance identified by the permit applicant. We refer to this again later in the context of the material presented by the parties in the current proceeding.
It is essential to state that by identifying the issues above we are not revisiting rulings on questions of law that have been made in these proceedings (recited below) including the classification of farms.
Our reasons do not discuss non-contentious Approved Measures in our Code assessment but our conclusion has taken into account compliance with them. These matters were set out in Mr Kraan's evidence for the permit applicant, and also referred to by Mr Cameron, for the Central Goldfields Shire Council. Examples are under Elements 3 and 5.

[52]

Over the protracted course of these proceedings, several matters were raised as questions of law and/or were the subject of hearings before DP Dwyer and SM Rickards. Orders and reasons were separately published by them.
Our decision in these proceedings is underpinned by, and applies, the findings on the questions of law as determined by the Tribunal's orders dated 6 August 2014 and 11 December 2014. It is appropriate to record the determinations as this is the basis upon which we have proceeded with our consideration of the material before us:
- The proposed broiler farm is classified under the Victorian Code for Broiler Farms 2009 as a Class B broiler farm.
- There is no specific requirement under the Victorian Code for Broiler Farms 2009 for an Odour ERA to be completed for a Class B broiler farm.
- The permit applicant is entitled to apply the separation distance as calculated under Formula 1 in the Victorian Code for Broiler Farms 2009. But applying the calculated separation distance does not indicate there is compliance with the six best practice elements referred to in section 7 of the Victorian Code for Broiler Farms 2009.
- If no specific Odour ERA under section 6 of the Victorian Code for Broiler Farms 2009 is required for a Class B farm then the Tribunal is not able to refuse a permit application on the basis that it is not satisfied under section 6 of the Victorian Code for Broiler Farms 2009.
- The Code is specifically required to be complied with under the Central Goldfields Planning Scheme. In order to determine whether the Code has been complied with, an odour assessment may be relevant in determining whether Approved measure E1 M1.3 has been addressed in the proposed development. It is open therefore for the Tribunal to seek evidence in the form of an odour assessment in order to be satisfied the Code has been complied with, or there is a need, depending on the circumstances and risks of the proposed development and the development site, that a greater separation distance than the minimum separation distance may be required.
- The separation distance upon which the impact of prevailing meteorological conditions and topographical features are taken into account for the purpose of Approved Measure E1 M1.3 of the Victorian Code for Broiler Farms 2009 is the separation distance prescribed by Formula 1 of the Code.

[53]

The Council and permit applicant referred to a number of benefits from the proposal. Attention was drawn through the submissions, and Mr Kraan's evidence, to the diversified and enhanced agricultural production resulting from the introduction of a new enterprise and the continued use of the balance of the subject land for sustainable farming. The contribution to the region's economy, such as feed stock suppliers and trades/services, and investment in high value agriculture were relied upon with comparative gross returns cited by Mr Kraan. Extrapolating figures relating to Farms 1 and 2, Mr Kraan said that there would be indirect employment for approximately 29 persons and increased spending associated with the general day to day operation of the broiler farm. He said the proposal would provide a "significant economic contribution in the region"[23].
Further, the use of existing infrastructure, upgraded roads and ability to support the region's small towns through substantial new investment were other benefits identified. Mr Kraan stated that the proposal would contribute to the social well-being of the region.
Mr Cameron, for the Council, made some similar submissions. He referred to the contribution that can be made to the Council's rate base (adding to rate and financial/sustainability issues raised by Mr Cameron and Mr Sutcliffe) and the use of infrastructure such as roads that the Council contributed to in the construction of the existing two farms to the north of the subject land. The sum of road works was said by the Council to be some $2.8 million while Mr Peake stated that $0.5 million of works were undertaken by the permit applicant to extend three phase power and install a bore and electricity supply in Rodborough Road.
In reply, the Objectors acknowledged that the proposal is an investment and may bring limited employment, but were critical of the lack of a cost benefit analysis and a wider perspective being taken with respect to environmental and social impacts. Mr Park referred to wider environmental impacts in his evidence. The Objectors referred to the small number of jobs and the lack of evidence in support of the contended economic benefits.

[55]

The Council and permit applicant argued that the use of the land for a broiler farm is appropriate and is consistent with the purpose of the Farming Zone as well as State and local policy. Among key arguments presented about the suitability of the subject land for the broiler farm, and referred to by Mr Kraan, were the fact that the land is zoned for farming purposes and that the proposal is a high value agricultural enterprise. It was observed that the use will take up only a small portion of the subject land leaving the balance to continue to be used for cropping and grazing. It was said that the proposal will add to agricultural diversification. Mr Kraan also emphasised the proximity to utilities, services and infrastructure and chicken meat processing facilities. Any conflict with dwellings for rural living should, Mr Kraan stated, be decided in favour of agriculture.
In support, Mr Peake referred to the difficulties in finding appropriate sites that can meet the separation distances, and that are close to highways, suppliers and processing plants. Mr Peake submitted the subject land is well located for the proposed broiler farm being more than one kilometre from houses, able to contain much of the buffer on the proponent's land (noting additional land being acquired to the north), the distance to the creeks and land within Overlays, and access to roads and services. Mr Peake observed that there are no dwellings along the designated truck route between the proposed farm and the Pyrenees Highway. With respect to State policy and the Regional Growth Plan, Mr Peake submitted that there is nothing within the Scheme or Growth Plan that indicates the subject land is unsuitable for the proposed use, rather, intensive agriculture is encouraged through Clause 22.04. He also contended that the Objectors want "no change" and that the proposal is acceptable because it provides the necessary separation distances and concerns about the existing Code-compliant farms are not relevant to this application.
The Objectors submitted that the subject land is better used for land-based agriculture, consistent with local policy in Clause 22.04. They emphasised the Regional Growth Plan identifies two preferred areas for intensive animal husbandry, that do not include the subject land and surrounds. These identified locations are, they argued, better serviced by existing transport networks and would not impact on tourism and environmental values associated with the environs of the subject land.
Mr Munt submitted the proposal would stymie the development of agri-tourism, undermine the Scheme's preference to cluster future intensive animal husbandry uses closer to Bendigo, and would be unlikely to satisfy the policy preference for sustainable agriculture. Mr Munt challenged Mr Kraan's evidence as failing to take account of the full suite of policies including those relating to environmental values and the promotion of a diversified economy including tourism. A key concern expressed in submissions and lay evidence by Objectors is the expansion of broiler farms in this location, noting that few people objected to the establishment of the first two farms. It is their experience with those farms now being operational that underlies their concern about the additional farm in close proximity. Attention was drawn to the number of small lots in the area that could see more dwellings being constructed.

[56]

We make the following findings regarding the suitability of the subject land for a broiler farm:
- The siting of a broiler farm in a Farming Zone is acceptable subject to a detailed assessment in relation to the specific circumstances of any application.
- The same finding derives from State policy. It is further made in local policy at Clause 22.04 where intensive agricultural industries are encouraged to be located and managed having regard to soil and water quality, the adequacy of infrastructure services and the potential to affect the amenity of surrounding land uses and developments. There is, however, arguably some tension with that aim and another local policy to strongly discourage the conversion of land to non-soil based use and development. The broiler farm is not soil-based but we think the local policy needs to be applied in the context that intensive agricultural industries are expressly encouraged. Agricultural quality cited in Clause 21.02[24] has not been demonstrated to be of such high value in terms of the capability of the subject land that we reach the conclusion the proposal should be rejected, in principle, for reasons relating to the loss of high quality soil-based agriculture.
- Farming is a priority in the Farming Zone however dwellings can legitimately be part of a farming community. Many of the sensitive receptors in this proceeding are not "rural lifestyle" lots, a descriptor sometimes used pejoratively, but houses associated with farming and what we understand to be lawfully established businesses.
- The Regional Growth Plan identifies an area where intensive industries are concentrated but that is not exclusive and does not mean other locations are unsuitable for intensive animal industries. That is acknowledged in the Plan itself.
- We understand that the growth of broiler farms in the immediate area has given rise to concerns that the current proposal will set a precedent for more broiler farms to be proposed and approved. We do not consider this means that the Objectors in this proceeding are adopting a position that there should be "no change" and we note the limited objection to the first two broiler farms being established. The appropriate and accepted approach is for each permit application to be assessed on its merits, based on its own facts and circumstances.
- That there could be the potential for more dwellings is not something that we have explored; mindful that there is no suggestion that Approved Measures E1 M5.1 and 5.2 in the Code are not met. Any future dwellings that require a planning permit will need to be assessed on their own merit and there can be no presumption that permits will be granted for dwellings on small lots in the Farming Zone.
For the above reasons, we do not consider the permit application should be rejected for an "in principle" reason that the subject land is an unsuitable location when tested against agricultural policy and the outcomes being pursued through the Regional Growth Plan. Rather, the critical and determinative matters are whether the layout, siting, design and operation of the proposed broiler farm comply with all Elements of the Code and achieve an acceptable planning outcome based on the application of the Farming Zone and other relevant provisions of the Scheme.

[64]

The Objectors contended the proposal is contrary to the Code as its fails Approved Measure E1 M1.3 and the associated Standard and Objective. In addition, they submitted the modelling relied upon by the permit applicant is flawed and not founded in the Code. They argued the expert evidence of Dr Cowan should be preferred over that of Mr Pollock. Mr Peake argued in the reverse, that is, the Code is met and the Objector's approach is flawed. He submitted the Objectors and Dr Cowan have asked the wrong question, have adopted the wrong starting point in their odour assessment, and have relied on expert evidence that is seeking to reclassify the proposed broiler farm.
Extensive technical information was tendered to support the positions adopted by the odour experts, which we do not repeat fully. The experts agreed that the separation distances provided by Formula 1 in the Code are applicable under normal atmospheric and topographical features. They also agreed that the meteorological and topographical conditions encountered at the proposed broiler farm mean that additional consideration is required under Approved Measure E1 M1.3 in relation to the separation distance. They disagreed on a range of matters including the starting point, modelling/methodology used, and conclusions of their respective odour assessments. The odour experts met and prepared a joint report demonstrating points of agreement and disagreement that has been very helpful in our consideration.
Lay evidence, information and commentary about odour complaints relating to the existing broiler farms were received by the Tribunal.
A range of other material was relied upon by the Objectors and permit applicant including some (but not all) prepared during the permit application process and in association with the expert evidence statements[26].
Further material includes modelling undertaken by the EPA during the permit application phase[27] in the form of an OERA. The EPA is not a referral authority for a Class B broiler farm[28] and an OERA is not required to be undertaken. In the same vein, other earlier material includes the assessment of the existing farms as a cluster[29] and that, too, contrasts with the legal ruling upon which we have proceeded.

[83]

We accept the position that the assessment relates to increased separation distances under Approved Measure E1 M1.3[35]
It is unfortunate that the Code does not provide any guidance as to what type of assessment is envisaged for the purposes of the Approved Measure E1 M1.3.[36] We have been in the position of considering very different approaches from two acknowledged experts in odour assessment and modelling. We have been required to determine which, if any, we accept.
We accept the expertise of both witnesses and appreciate that both consider their approach is relevant to the assessment of Approved Measure E1 M1.3. After careful review of the large volume of material which has been helpful to our consideration we have not been persuaded to prefer the evidence of either witness for reasons we explain next.
With respect to Mr Pollock's evidence:
- The method adjusts the same area created by the separation distance boundary applied under Formula 1 of the Code. The method adopted is not articulated in any statutory policy or provision. That does not mean it should not be accepted. However, if reshaping the area created by the separation distance applied under Formula 1 of the Code was sought it seems that this could have been simply stated.
- Adjusting the same area created by the separation distance boundary applied under Formula 1 of the Code assumes the impacts of local meteorological and topographic conditions will not and should not alter the area created by applying the distances calculated under Formula 1. We have not been persuaded why this assumption can be presumed and should be accepted.
- In undertaking an odour assessment under Approved Measure E1 M1.3, we are not persuaded that an understanding of the frequency, duration and intensity of odour emissions from the proposed farm are irrelevant. It is self-evident that the Formula 1 separation distance is deemed to be acceptable[37]. However, Approved Measure E1 M1.3 seeks to test this against site specific topographical and meteorological conditions. The influence of local weather and terrain may alter the frequency, duration and intensity of odour emissions experienced by sensitive uses even with the distances involved here.
- The absence of an understanding of the "base" conditions with respect to the frequency, duration and intensity of odour emissions when applying the "standard" separation distance adds to the difficulty in reaching a conclusion about the adequacy of the increased separation distance relied upon in the permit applicant's evidence.
- The data relating to prevailing winds do not appear to correlate with the directional buffer, as Mr Pollock accepted in answering questions from the Tribunal.
- The increased separation distance relied upon has not satisfied us that the impacts of local slope flow have been taken into account, that is, the drainage of odour during temperature inversion and still air conditions. There is real potential for this given the form of the Joyces Creek escarpment and valley.
- The concept of separation distances is based on emissions from a single farm without an overlap. The evidence shows an overlap of possibly up to around 200 metres with Farm 2[38]. We do not accept the permit applicant's submissions that this is irrelevant because the overlap means that there is the potential for cumulative contributions to odour which are not otherwise accounted for.
- We do not consider the physical distance to dwellings can be assumed or presumed to mean that there is no potential for adverse impacts given the above findings.
With respect to Dr Cowan's evidence:
- This seeks to find a base case or starting point and, in using 5OU, is consistent with an assessment based on State Environment Protection Policy (Air Quality Monitoring) [SEPP(AQM)]. However, in concluding that the separation distance under Formula 1 of the Code is not adequate, the evidence does not define what increased separation distance would be adequate.
- The report concludes an OERA is required but this is not the purpose of the odour assessment under the Approved Measure E1 M1.3.
- The modelling has not satisfied us that the impacts of slope flow have been taken into account, that is, the drainage of odour during temperature inversion conditions. We have not been presented with any evidence to suggest that such impacts would not be experienced in this case.
- The basis for the meteorological data and calculations raise some questions with respect to the formula Dr Cowan applied and the distances at which observation stations are from the subject land.
For these reasons, we do not have a level of confidence that the increased separation distances relied upon by the permit applicant are adequate to minimise the risk of odour impacts. We also do not accept that the contours relied upon by Dr Cowan at, say 5OU or 10OU, can or should be suggested to be the increased separation distances for the purpose of Approved Measure E1 M1.3.
The reliance on the Tribunal's decision 134th Larena as support for Mr Pollock's approach must be considered cautiously and having regard to all of the circumstances in that case and differences with the current case. From our reading of the decision, there was no competing expert odour evidence, only one broiler farm was being proposed and there was no overlap with separation distances calculated for another broiler farm.
We conclude this section by recording that, for the purposes of our consideration of Approved Measure E1 M1.3, we think there is a question about the validity of nominating a separation distance for existing Farm 2 by extrapolating Formula 1 of the Code to that 500,000 bird capacity broiler farm. This was the subject of some discussion late into our hearing. We have taken our question no further having regard to Mr Peake's submission that the dimension relied upon by the permit applicant for Farm 2 was accepted and has been settled by the Tribunal in the legal ruling. Our question has not influenced our final decision - our assessment and conclusions are made on the dimensions relied upon by the permit applicant[39].

[86]

The permit applicant argued that any allegations of odour associated with the existing broiler farms are not relevant and are not properly substantiated. Conversely, a key concern of the Objectors is that the proposal will add odour into an environment that they contend is already subjected to odour impacts from the existing broiler farms. Contentions in submissions and evidence included increased odour levels during colder weather when there was little or no wind. Odour drift down the valley and the influence of weather/inversions in the Joyces Creek were said to be experienced at private and public locations. Evidence was led by Mr Munt from several lay witnesses including Ms Margaret Lewis, her daughter Ms Madelaine Lewis, and Mr Skilbeck, which we do not recite. Mr Cameron and Mr Munt both tabled documents listing complaints while we have responses to some of this material prepared by Mr Kraan.
The lay evidence and submissions with respect to odours do not accord with the observation of Mr Peake and the evidence of Mr Kraan that (notwithstanding that the permit applicant says any existing odours are irrelevant) odours are not verified. Mr Peake also submitted that the current litigation may heighten awareness or provide an impetus for complaints to be made.
In addition to challenging the veracity and relevance of existing odours, Mr Peake argued against the relevance of modelling by Dr Cowan and the EPA as well as earlier work by Mr Pollock. This work involved modelling of a different type to that adopted by Mr Pollock in his expert evidence for the permit applicant for the purpose of considering Approved Measure E1 M1.3 because odour level concentrations were identified and the analyses took existing background odour into account. The permit applicant also argued that there is no basis to undertake an assessment of the type referred to in SEPP(AQM).
In the legal ruling, in Lewis, the Tribunal said the Code does not take into account other nearby uses that may also generate odour unless there is a farm cluster[41]:

[88]

Thus, the Tribunal's position about the irrelevance of other broiler farms is consistent with Mr Peake's submission.
That ruling was made prior to expert evidence being filed with respect to Approved Measure E1 M1.3 where the evidence shows an overlap in separation distances as we have discussed above. Although competing, the expert evidence is nonetheless consistent on the point of overlapping separation distances between the proposed farm and an existing farm. For reasons already given, we do not accept Mr Peake's submission that the lack of houses in the overlap area is enough to reach a conclusion that Approved Measure E1 M1.3 is met.
To the extent that any or all of that the modelling by Dr Cowan and the EPA as well as earlier work by Mr Pollock is said to be an OERA for the purposes of section 6 of the Code, we have not referred to it for that purpose. Moreover, the material cannot be relied upon, or must be read with caution, for a range of reasons including:
- It was prepared on different assumptions that are not consistent with the legal ruling in this proceeding.
- Much of the material has not been the subject of testing through cross-examination and its relevance is not agreed between the parties.
- The variations from the separation distance deemed acceptable under Formula 1 of the Code are substantial.
- The EPA report did not provide detailed information in relation to the meteorology used in its modelling.
- Different durations of emissions and different odour emissions rates are among some of the variables applied and the reasons for the differences are not necessarily clear.
We have not relied upon the material to reach our earlier conclusion, ie. that the permit applicant has not demonstrated to our satisfaction that there would be equal or superior performance under Approved Measure E1 M1.3. That conclusion was because of uncertainties and unaccounted-for variables associated with the assessment relied upon by the permit applicant.
With respect to complaints, we appreciate that there may be many reasons why people choose to complain about something or why, even though they are concerned or are subjected to nuisance or impacts, those concerns or impacts are unreported. The belief expressed by some witnesses was that the complaints are not actioned or responded to in a way that gives confidence to the complainants. The travelling time and distance involved for enforcement officers to attend to observe or verify a complaint is an element in this.
We believe from the evidence, submissions and cross-examination that some of the complaints are related to waste litter from an existing broiler farm being dumped in several places. In addition, the permit application process may be a time where people may take the time to record things that they otherwise only observe or accept. We accept that there are odour emissions associated with the existing farms which have caused complaints to be made to the Council and EPA and some to which Mr Kraan provided responses on behalf of the permit applicant.
The complaints have not influenced the conclusions we have drawn at paragraphs 76 to 89 with respect to the permit applicant's expert evidence. The additional material does, however, support submissions that the setting of the subject land is not without risk and that there is odour migration associated with the local meteorological and topographical conditions.

[89]

Ms Bright, Ms Hall and Ms Berg raised concerns in relation to potential for dust particle emissions from the broiler farm to settle on the roofs of houses and thereby enter water supply tanks. Ms Bright said residents had not been provided with any information in relation to dust particle emissions from the broiler sheds. Ms Margaret Lewis presented a photograph showing what appeared to be chickens feathers along the sides of the approach roads to the existing broiler farms. She identified her concerns in relation to the potential contamination from the broiler farm to affect agriculture in the area.
Mr Cameron stated that potential sources of dust include vehicles using the local roads, sheds and litter removal. He said that the distances involved and lack of complaints prior to the current application indicate that dust should not be a problem however the Council had sought strict conditions to limit the potential. These conditions include sealing Clarkes Road, surfacing the farm access and entry road, and a dust screen facility for the loading and unloading of litter.
Mr Peake submitted the proposal would not cause unacceptable amenity impacts as a consequence of dust emissions. The separation distances, he said, ensure this is the case and it is relevant that the proposed farm complies with the necessary separation distance that will ameliorate dust impacts. He acknowledged Ms Lewis' reference to dust and responded that there is no evidence in support of contentions about dust emissions outside of the site. Mr Peake referred to existing dust emissions gauges placed to the north-east and south-west of the existing farms and, other than them indicating "that this is generally a dusty area"[42], said no dust emissions have been caused by the existing broiler farms.
Mr Pollock, for the permit applicant, said dust deposition reduces rapidly with distance from the sheds. He stated that detailed monitoring undertaken at a 1.4 million bird farm in New South Wales had a deposition rate of 0.2 g/m² per month which was 10% of the criterion used in New South Wales. He therefore had little concern of any possible impact of dust deposition from the proposed farm impacting on tank water supplies at houses which are in excess of one kilometre from the proposed sheds.
Mr Pollock advised that the original GHD report[43] in relation odour emissions from the site did not include discussion relating to the deposition dust as previous assessments had shown that odour is the more critical constraint compared to dust deposition rate. He advised that in recognition of this the EPA does not now require modelling of dust emissions for proposed broiler farms as compliance with the odour criterion will ensure compliance to the dust deposition criteria.[44]

[91]

Evidence and submissions addressed noise from fans associated with the broiler farm sheds and trucks including trucks at night.
Mr Peake submitted the proposal meets Standard E2 S4 of the Code based on the expert evidence of Mr Goddard. He observed that the Standard relies on the Interim Guidelines for Control of Noise from Industry in Country Victoria but that has been replaced by the EPA's Guideline: Noise from Industry in Regional Victoria ["NIRV"]. Mr Peake submitted that even in a worst-case scenario with all fans operating, the applicable night time noise limit would not be exceeded for any dwelling except the property being purchased by the permit applicant.
Mr Goddard's written evidence addressed the noise from fans and concluded NIRV requirements would be met. In response to questions in relation to the tonal character of the fans, Mr Goddard advised that they were a broadband sound and therefore he did not consider it necessary to provide any adjustment for tonal character.
Mr Goddard did not assess other noise sources because he felt that houses are too far from the subject land to create an unacceptable risk/impact. Based on questions put to him including by the Tribunal, Mr Goddard estimated that the combination of the fans at maximum speed and the trucks could possibly add 3 dB(A) to the noise levels at the nearby houses. This would still be in compliance with NIRV requirements.
The permit applicant suggested that trucks could collect birds from the central aisle between the farm sheds to assist to reduce noise emissions. The sheds would offer some shielding of truck noise. In addition, through questions of Mr Goddard, the permit applicant submitted that there is the potential to further reduce noise including through:
- Providing an earthen bund, which, he advised would need to be relatively close to the sheds and of an appropriate height to maximise the benefit;
- Arranging internal circulation to limit use of reversing beepers for road vehicles;
- Requiring reversing beepers to be inaudible beyond the site and for beepers to be broadband type;
- Providing non-road vehicles with flashing lights instead of an audible alarm;
- Installing speed controls on fans so that they start up/slow down in a controlled way (described by Mr Goddard as "a valuable way to reduce noise");
- Arranging for the night-time collection of chickens to be undertaken between the two banks of four sheds wherever feasible; Mr Kraan advised that this was the intention. However, there may be occasions when the collection of chickens at the eastern end of the shed would be required for operational purposes.
Mr Kraan commented on some of the operational matters that we do not recite.
Mr Munt accepted the acoustic assessment that noise emissions from the proposed sheds would not exceed the recommended maximum levels. Mr Munt submitted that the lack of acoustic assessment of trucks, as well as factors such as the prevailing agricultural character, existing nearby tourism uses, and increased trucks compared with the existing situation, mean that the proposal is likely to have unacceptable noise impacts.
Objectors expressed concern about the extent to which they hear noise from fans and trucks associated with the existing two farms and from trucks moving along local roads which they believe will be exacerbated by the proposal. That includes a low pitched humming sound. Objectors noted that the proposed broiler farm is situated at a higher elevation in comparison to Farms 1 and 2, which would potentially also increase both fan and truck noise levels at all houses in the vicinity. The Objectors houses are situated at a lower elevation to the proposed farm and generally on or close to the valley floor. They described the influence of the Joyces Creek valley on noise levels such as echo, reverberation and reflection. Ms Bright's material noted that the noise from vehicles and machinery around the existing broiler sheds is particularly evident in the early morning and evening. This was also stated by Ms Berg, Ms Hall, and the Skilbecks.
Mr Goddard did not agree that the existing conditions give rise to the impacts described by Objectors.
Mr Cameron also submitted that there has been no quantification or substantiation of nuisance although in the Council's submission he indicated that the ambient noise levels would be quite low and the Joyces Creek valley could affect noise transmission or create an echo.

[95]

It is common ground that noise from the sheds, such as by fans, can comply with NIRV and the Code. We accept that this can be done and that there are ways in which the fan speed can be controlled to reduce noise as discussed by Mr Goddard in his oral evidence. This does not mean that there would be no sound audible at dwellings rather that the established standard has been/can be met through permit conditions.
Mr Goddard's conclusion was that the maximum noise level at nearby dwellings would be 33 dB(A) compared to the NIRV recommended maximum noise level for night time of 36 dB(A).
We accept that this has elements of conservatism, such as Mr Goddard's evidence that his modelling was based on the assumption that all fans in all three farms were operating at their maximum speed at the same time, with a light breeze in the direction of the nearest dwellings, a circumstance that he said would never actually occur. He said all fans would never be operating at night or in the early morning, when temperature inversions occur as the ventilation requirements are lower and the age of the birds in the three farms would be different, all resulting in varying ventilation requirements. Further, mounding might assist to mitigate some noise emissions and, unlike the fans for Farms 1 and 2 of which some submitters complained, the fans for the proposed broiler farm are proposed to be located between the two banks of sheds and that would assist in limiting the noise to be experienced at the dwellings to the east.
It is relevant to the assessment of noise that Mr Goddard estimated that the combination of the fans at maximum speed and the trucks could possibly add 3 dB(A) to the noise levels at the nearby houses. This would still be in compliance with NIRV requirements although, if relying on a level of 33 dB(A), would reach the limit defined by Mr Goddard.
We have less certainty about adopting Mr Goddard's findings with respect to truck movements than fan/shed operation because:
- There is no standard to be applied;
- There is no detailed analysis about the internal road grades and the potential impacts on noise;
- The intent is to use the central aisle but the use of the east side of sheds cannot be precluded given doors are included in the east elevation of this group of four sheds;
- There is no detailed analysis or modelling as to whether weather and terrain referred to by Objectors are influences with respect to noise transmission particularly at night when trucks collect mature birds.
Further, the amount of planting required on or in lieu of an earthen mound to assist to mitigate noise impacts would need to be very substantial and, as discussed below, such a result, if it could ever be achieved, would not be so for many years.
For the above reasons, we would have preferred more detailed information with respect to noise from truck movements but have proceeded on the basis that Standard E2 S4 of the Code is met. We accept that nearby residents may hear the operation of the fans and truck activities associated with Farms 1 and 2. However, the land is zoned for rural activities and these invariably result in a variety of noises from time to time including at night time.

[99]

We accept the permit applicant's submission and evidence that fixed lighting and vehicle circulation within the farm have been designed to seek to limit light spill. During our site inspection, we were shown the external lighting on the sheds of Farms 1 and 2 that is mounted on the outside of the sheds. The same approach is not proposed in the application before us and we accept that lighting can be baffled.
In addition, the addition of a bund for landscaping purposes (as discussed below) would be expected to have benefits with respect to limiting the visibility of lights particularly from trucks moving into and out of the site.
The entrance to the proposed farm from Clarkes Road is at a higher elevation than the area to the east such that there is potential for the light from trucks turning off Clarkes Road to shine across the open pasture towards the houses across the Joyces Creek valley. If the entrance road to Farm 3 was angled slightly towards the sheds the headlights of trucks entering at night would be directed on the walls and roofs of the sheds thus reducing the offsite impacts.
The location of the proposed broiler farm compared with some dwellings at a lower position in the topography may mean that the development is visible because it is lit even though appropriate baffling and design considerations minimise light spill as sought by the Code. Despite this, we are satisfied that truck lighting impacts can be adequately addressed by the proposed design and operation of the farm and by further permit conditions addressing the design and operation particularly related to lights associated with trucks at night.
In our experience, these measures will not prevent a presence of lighting that may also be affected by weather events such as fog. We think that this type of impact underlies the Objectors' concerns, particularly given the sheds sit higher in the landform than many of the dwellings, but it is not a matter that is expressly dealt with by the Code. It is a matter we consider next with respect to the visual and landscape impacts of the proposal.

[101]

Objectors raised concerns about the visual impact of the proposal in terms of both the public and private realms. The submissions were elaborated upon through the expert evidence of Mr Park, and lay evidence Ms Teese, Mr Skilbeck and Ms Lewis.
Attention was drawn to the landscape quality of the Moolort Plains and the Strathlea Valley. Mr Park described the environmental values of the Plains and potential impacts on wetlands that are one feature of the Moolort Plains. Ms Teese's evidence cited the Central Goldfields Shire Heritage Review Stage 1, Rowe and Jacobs, 2005 that lists both Moolort and Middle Creek as important cultural landscapes. Heritage assessments of the Plains were cited in this context.
Objectors submitted the proposal will have unreasonable impacts on the identified landscape values of the Moolort Plains and the Strathlea Valley. Doubts were identified in the Objectors' submissions and evidence as to what will be able to be seen from their properties and road network noting the absence of detailed visual impact assessment by the permit applicant. They described the scale of the proposed development as adversely affecting landscape values and amenity, and therefore not satisfying various Approved Measures and Standards in the Code[45], particularly with respect to:
- Views to the sheds and silos on the Joyces Creek escarpment mindful of their position with respect to the horizon rather than nestling into the landscape.
- Views from houses and around farming properties.
- The alteration to the landscape values.
- Impacts on the landscape values of the tourist route "Goldfields Way".
- The cumulative negative visual impact of multiple broiler farms that will be seen from various roads around the near and wider area, as shown on a plan of the wider area tendered at the hearing[46].
- Glare from the roofs of the sheds at certain times.
- Based on their experience and knowledge of local soil types and indigenous plantings, insufficient ability to effectively screen the proposed development because indigenous vegetation/suitable vegetation will not grow to a height that will screen the sheds.
- The introduction of a planting style (eg. straight rows on a bund) that is not typical or characteristic of this EVC (copses and very scattered trees and shrubs).
Mr Cameron stated that the broiler farm structures present as an unnatural, man-made factory type building in a natural open plains landscape. He said the proposal will add to the presence of the existing farm sheds and structures that are landmark features, but the change will be incremental in an already modified setting.
Mr Peake submitted that the subject land does not have recognised landscape qualities in the Scheme and disputed the importance of its landscape values as expressed by Objectors. He submitted the sheds, silos and other works are proposed to be constructed on relatively flat land to minimise cut and fill and to minimise visual impact. The proposed development would occur below the ridgeline or crest that occurs around Ivor's big shed and the silos would also be below the floor level of that shed.
Mr Peake submitted the proposed broiler farm can be satisfactorily landscaped while acknowledging that indigenous planting will be slow growing. He accepted that works such as a bund and landscape strips do not constitute natural landscaping or reinstatement of pre-settlement landscape but the purpose is to ameliorate the visual presence of the sheds in accordance with the Code. It is not necessary to hide the buildings, he said. Mr Peake relied on the evidence of Mr Kraan and Mr Kelly. He acknowledged the proposed farm would be seen from various vantage points but submitted that would be at a considerable distances and will form a small part of the viewshed. Mr Kraan stated that the sheds would be at a sufficient distance from the tourist route (estimated at 4km) to be considered as part of a distant vista and were only visible intermittently for a short distance along the highway. The proposed height of the silos would be lower than those at Farms 1 and 2.
Mr Peake stated that the sides of the sheds would be non-reflective as would silos, if painting to match the Colourbond walls is required by the Tribunal. He did not support the shed roofs being modified from Zincalume, a matter of discussion at the hearing. Mr Peake stated that the Zincalume will weather but conceded that it is open to the Tribunal to require a change should the specific circumstances of this case suggest this is necessary.
Mr Peake offered for the whole of the Clarkes Road frontage to be landscaped and fenced from stock and for additional planting along the southern boundary for a distance beyond the east end of the proposed sheds. He also stated that the proponent was prepared to accept a condition requiring the silos from above eave height to be painted a similar colour to the walls of the sheds, to further assist in reducing their presence.

[109]

The Code sets minimum setbacks but that does not preclude the need to assess whether the physical presence and appearance of the proposed development are acceptable taking into account factors such as the landform and views to the structures. It is also necessary to emphasise that visibility of the proposed development is not the test of whether a development has an unacceptable visual impact.
The presence of structures associated with agriculture in the landscape is not particularly contentious, rather, it is the scale of the proposal and the additional presence of sheds and structures given Farms 1 and 2, that are the core of the concerns.
The parties and expert witnesses addressing this matter variously attempted to identify the extent to which the proposed sheds and silos would be seen from locations around the subject land. There is no sightline analysis of the type seen in a detailed independent visual assessment.
The extent to which the proposed sheds and associated structures would appear or be perceived atop of the escarpment or ridgeline is a legitimate concern based on our assessment. This is less the case with views from the Pyrenees Highway and more distant roads than the closer context such as along several sections of the Strathlea Road. We have not been persuaded that the position of the sheds would integrate with the surrounding landscape where they are seen from the east as being on or above the escarpment. It is conceded by the permit applicant that planting will take time to achieve a softening of the form.
The suggestions made over the course of the hearing to provide a bund across the eastern end of the sheds[48] and to extend and strengthen landscaping along several boundaries (Approved Measure E4 M1.1) would improve the outcome but we have some ongoing concern about this aspect of the proposal.
We have specific concerns about the Zincalume finish to roofs which we refer to again below. With the position of the sheds and the site cut associated with the proposal, the shed roofs will be clearly apparent along Clarkes Road and other public locations.

[119]

The Objectors submitted the proposal does not satisfactorily address the likely environmental impact of the broiler farm's approval including on groundwater, wetlands and protected species. More specifically, they identified potential impacts with respect to:
- The Cairn Curran reservoir potable water supply catchment.
- Ground water.
- Runoff with threats to the drainage lines, Joyces Creek, wetlands/swamps that are a feature of the Moolort Plains.
- Raptors as a consequence of rodent baiting.
- Litter dumping.
The Objectors emphasised the location of the subject land in a declared water catchment. In addition, Mr Park, Ms Lewis and Ms Teese described the environmental values of the Plains and potential impacts on wetlands that are one feature of the Moolort Plains.
Mr Park was critical of the failure of the Council or permit applicant to provide an environmental impact assessment and said that there has been insufficient assessment of environment impacts. Mr Park was of the view that there is a major weakness in the Code - "While acknowledging water issues associated with Broiler Farms are very important, it ignores broader consideration of impacts on ecosystem processes, biodiversity and soils". In summary his concerns related to potential impacts on the Moolort Plains wetlands, degradation of landscape amenity, impacts on surface and groundwater, lack of rigour in the cost benefit evaluation and impacts on raptors.
In cross-examination, Mr Park conceded that it cannot be said that there will be environmental impacts but he also said that there is no direct evidence that wetlands and species will not be affected. His opinion was that the precautionary approach should be applied and that the environmental values are so significant that a more comprehensive and diligent assessment is required. Sustainable farming practices associated with the proposed broiler farm were challenged by Mr Munt with respect to water usage and supply.
Mr Peake submitted the proposal meets its obligations with respect to waste and water management without creating adverse environmental impacts. He referred to the position of Goulburn Murray Water ["GMW"] that did not object to a permit issuing subject to conditions. To the extent that any water is discharged from the site, he submitted it would be of significantly better quality than the existing untreated pasture runoff. He further challenged the presence of wetlands that could be impacted by the proposal.
The permit applicant relied on the evidence of Dr McCowan that all runoff will be directed to the proposed retarding dam and then reused in the broiler sheds or released at flow rates no greater than existing conditions. There will be no spreading of litter on the subject land. The aim is to avoid increased nutrient loadings into Joyces Creek. Dr McCowan stated that any overflow to Joyces Creek will have a negligible impact compared with uncontrolled activities today from runoff and stock access direct to the watercourse (ie. treated vs uncontrolled).
A range of detailed matters about the design of the proposed dam and stormwater management were raised through Dr McCowan's evidence and cross-examination including:
- The use of grass swales.
- The form of dam lining and grade of dam batters.
- The extent to which the dam might be overtopped.
- The availability of water from a bore should rainfall be insufficient to maintain the water supply.
Mr Peake emphasised that agreement had been reached with respect to conditions sought by GMW and the North Central Catchment Management Authority.

[120]

There are a range of environmental values identified through the Scheme that are relevant.
Clause 21.02 identifies the Moolort Plains as a land management type. We are aware from the material tendered by the parties that there are a series of valuable wetlands dotted across the Moolort plain. These wetlands are mostly ephemeral and are often located within private farm land. Their value has been increasingly recognised and in recent years many have been voluntarily managed to assist in their survival. We understand that the wetlands are used by a wide variety of bird life, including threatened species.
There is no wetland on the subject land, however there are the remnants of a small wetland approximately 500 metres north of the site. It straddles the road reserve and is midway between Farms 1 and 2 and the site.
The subject land is farming land traversing the Joyces Creek and close to Middle Creek. We note multiple Overlays applying to the eastern part of the subject land. These are an Environmental Significance Overlay (Schedule 1 Streamsides Watercourses and Storages), Land Subject to Inundation Overlay and Salinity Management Overlay that are beyond the area for the proposed use and development.
We note that ESO1 refers to the degraded condition of watercourses and streams and has objectives to (inter alia) prevent pollution and enhance water quality. This is important given Joyces Creek (and Middle Creek) flows into the Cairn Curran reservoir. There are additional aims relating to native vegetation and fauna. Decision guidelines in ESO1 supplement those in Clause 42.01. They reinforce the emphasis in Clause 21.03 about the protection of water quality and maintaining water supply which are described as priority issues in the Loddon River and Avoca River catchments. The same Clause states "There are an increasing number of dams being constructed in the catchment within the shire. Dam siting and the size of dams need to be controlled to safeguard water quantity in the catchments".
The breadth of the Salinity Management Overlay beyond the site across the Plains is evident and Clause 21.01 cites salinity as a land degradation issue.
The decision guidelines in Clause 35.07 also address a range of environmental issues that we have also considered. Clause 65 requires consideration, as relevant, of factors likely to cause or contribute to land degradation, salinity or reduce water quality and whether the proposed development is designed to maintain or improve the quality of stormwater within and exiting the site.

[130]

The issues arising from submissions and evidence focus on increased trucks and their travel routes as well as the extent of road upgrades that should be required by the permit applicant. There are also more detailed matters addressing the proposed entry into the site.
The Council and permit applicant relied on a designated travel route for trucks servicing the proposed broiler farm. The permit applicant agreed to various conditions to give this effect as well as an amended condition 17 proposed by the Mount Alexander Shire and the installation of directional signage at the intersection of Rodborough Road and the Pyrenees Highway should the relevant authority agree.
The permit applicant accepted that it should upgrade Clarkes Road to the extent required by its use. The dispute with the Central Goldfields Shire Council through Application P623/2014 related to the form of the works having regard to the opinions of Mr Turnbull, Mr Altmann, Mr Holmes and Mr Tostovrsnik. They variously addressed matters relating to the road construction type, width, shoulders, sealing, timing of works, and to what standard. Central to the different views expressed are the strength and nature of subsurface materials, the benefits and disbenefits of bitumen vs gravel, the necessary road width, the extent to which use would degrade the road, and the fair maintenance obligations that should be imposed on the permit applicant. We have not summarised the various positions and opinions provide by the experts but have carefully considered their evidence in arriving at our decision.
The package of works agreed to by the permit applicant is widening Clarkes Road to 6 metres where necessary, re-sheeting Clarkes Road to a depth of 24mm, constructing Clarkes Road with a bitumen surface for a distance of 25 metres south of Rodborough Road, and constructing a 30mm asphalt overlay over the bitumen with the intersection of Clarkes Road with Rodborough Road. Mr Peake referred to various Tribunal cases involving broiler farms where the standard of road construction was discussed and where widths of 5-6 metres were accepted for gravel roads of appropriate load bearing strength.
Mr Cameron and Mr Sutcliffe considered more is required as set out in revised permit conditions prepared by the Council and the very detailed submissions and material they prepared. We appreciate the extent of time and effort by the Council in preparing its submissions and evidence on these questions which, we understand, are of importance to the Shire. They are seeking Clarkes Road to (inter alia) be sealed with a width of 7 metres.
The Objectors submitted the proposal would be likely to result in an unacceptable increase in truck traffic along Rodborough Road and along Clarkes Road. They are concerned about trucks using inappropriate routes and do not consider that the route to be required by a permit condition will be effective. Ms Lewis described the lack of maintenance and the manner in which trucks currently use the road. Mr Munt referred to Mr Skilbeck's evidence of non-compliance with an existing prohibition on the use of the eastern end of Rodborough Road in support of his submission that trucks will use the inappropriate route of Rodborough Road. That is, Mr Skilbeck's evidence was that the required route is not complied with, such as by a gas truck. Mr Munt submitted that because the proponent cannot operate Farms 1 and 2 in compliance with existing permit conditions relating to truck use, the Tribunal should find that the proposal would not comply with new conditions seeking to govern the same activity.

[132]

The existing conditions of the surrounding road network were described in Mr Altmann's evidence including:
- Clarkes Road - The existing trafficable crushed rock pavement width is 6 metres and varies considerably in depth over clay, from 20mm to 180mm. The surface has well established wheel paths, with some surface rutting and very isolated potholes.
- Rodborough Road and Lock Lane - These roads have a sealed pavement width of 7 metres and are both in good condition with negligible signs of surface deformation.
Traffic count results for Locks Lane, Rodborough Road and Clarkes Road for the years 2009 and 2014 are between 50 and 90 vehicles based on two-way daily 5 and 7 day averages. Commercial vehicles comprise one quarter to one third of the traffic.
Mr Sutcliffe advised that prior to five years ago Clarkes Road had been an earthen track. Due to upgrading works on the Rodborough Road bridge where it crosses the Joyces Creek, the Shire undertook upgrading works of Clarkes Road to provide a short-term bypass while the bridge works were undertaken. The upgrading comprised primarily of a 125mm topping layer on the existing track. Since completion of the bridge works, Clarkes Road has been used primarily by light vehicles as a shortcut between areas to the south and Rodborough Road.
Mr Sutcliffe advised that Locks Lane and Rodborough Road were completely re-built and upgraded with a sealed surface approximately two years ago to provide all-weather access to Farms 1 and 2. The upgrading works had been partly funded by a State government grant.
Due to poor ground conditions in the general area there had been three pavement failures in the Locks Lane and Rodborough Roads in the last two years.
Mr Sutcliffe advised that Clarkes Road had similar poor ground conditions as for Rodborough Road and noted that, prior to the upgrade, Clarkes Road had been deviated around the edge of a wetland further south of the proposed farm but during the upgrading works the deviation had been removed.
Clarkes Road comprises variable clay types which are expansive. In response to various failures of the pavement, material has been added in a number of areas to provide a more stable sub-base.
Mr Sutcliffe advised that if the Shire was required to construct Clarkes Road to the same standard as Rodborough Road the Shire would have to consider increasing rates or cancelling other budgeted road works as the Shire had already borrowed over $1.5M "... to essentially keep the doors open." He confirmed that the Shire was keen to attract new industries and residents to the Shire to improve the financial situation. He further advised that Central Goldfields Shire was identified to be one of 10 councils considered to be at financial risk due to the comparatively small rate base[50]. The review considered that the Shire had a structural inability to be sustainable based on its population size versus the length of their road network.

[133]

Mr Turnbull's evidence explained that:
- Each growing cycle in each broiler shed is approximately 65 days (including a 7 to 8 week growing cycle plus approximately a 10 to 14 day period for shed clean up and turn around). There are approximately 5.6 batches of chickens grown in a year.
- Mature bird pick-up typically occurs over a period of about four nights (including one night as a result of the 'thinning' process on about day 39, and three nights at the end of the growing cycle). This equates to roughly 16 trucks (32 movements) on each of the collection nights.
- Additional vehicles would attend the subject land including feed deliveries, service vehicles and associated with a manager's house (the latter now deleted from the permit application).
- There would be a total of 334 truck movements during the 65 day growing cycle and an estimated 1,870 truck movements per year[51] (based on 5.6 growing cycles per year), which corresponds to an average of 35.9 movements (18 trucks entering and exiting) per week.
Mr Holmes accounted for the additional vehicles in his assessment which estimated 18 light vehicle movements and five heavy vehicle movements per day. Construction traffic was estimated be factored up by 50%. He stated that his figures relating to heavy vehicles is similar to the planning report provided with the permit application. He referred to 1,473 heavy vehicle movements per year[52].
The proposed heavy vehicle route from the site to the arterial road network is:
- North along Clarkes Road from the site to Rodborough Road;
- West along Rodborough Road from Clarkes Road to Locks Lane;
- North along Locks Lane from Rodborough Road to Pyrenees Highway.
With the exception of Clarkes Road (between the subject site access point and Rodborough Road) all other routes identified in the Broiler Farm Road Route Plan are sealed roads which are VicRoads approved B-Double routes.
On the evidence before us, we are satisfied that the roads that are proposed to be relied upon have capacity to accommodate the increased traffic likely to be generated by the proposed use. The broiler farm should not be refused on grounds relating to road condition and traffic management issues because these matters can be addressed by way of conditions.
The current traffic volumes on Clarkes Road are low and primarily relate to light vehicle traffic which has limited impact on the road pavement. The declared roads are now built to a high standard. The appropriate treatment of Clarkes Road, the means for maintaining the proposed truck route, and enforcement of the proposed truck route, are matters to which we refer to next. Subject to resolving those matters, we accept Mr Turnbull's opinion that the increased truck traffic will not impact on the safe and efficient operation of the road network and we give weight to the fact that the Council also does not see these as matters that cannot be addressed rather the concern of the Council is how these matters are addressed.
We have not pursued a question raised through Mr Turnbull's evidence of the need to declare Clarkes Road as a B-Double route - this would be a matter for the Council as road manager.

[134]

We appreciate concerns about trucks using other roads raised by the Mount Alexander Shire Council and Objectors. We have noted the suggested permit condition revisions by the adjacent Shire and agree with the need to avoid trucks using the narrow and more difficult eastern end of Rodborough Road where there is the narrow bridge crossing that is unsuitable for large articulated trucks. We agree with Mr Stafford's submission on behalf of Mount Alexander Shire with respect to the benefit of an advisory sign at the intersection of Rodborough Road and the Pyrenees Highway; a condition which we support.
We further appreciate that there is the potential for heavy vehicles to use a variety of the roads in the general area, including those to the south of the subject land.
We are satisfied that the preparation of a Traffic Management Plan ["TMP"], to the satisfaction of the Council, prior to the commencement of operation would provide an assurance that all heavy vehicle drivers will only use the designated route and gives the Council a mechanism to monitor and enforce compliance.
The TMP, combined with the design of the entry to the Farm to make entry and exit to the south difficult, plus appropriate signage at the exit and the training of heavy vehicle drivers are measures that can work together to minimise heavy vehicle traffic to the south and east. We cannot guarantee that there would never be trucks that do not use the required route and in this regard we have noted Mr Sutcliffe's references to complaints to the Council for this reason. However, as noted by Mr Turnbull and Mr Kraan the heavy vehicle drivers will be under contract and regularly attending the site. They can therefore be required to undergo relevant training identified in the TMP and any breaches of the TMP can be adequately addressed by the operator.
We have been mindful of issues about truck speeds including on Clarkes Road where there are undulations that affect sight lines for cars but are less problematic for drivers in elevated truck cabins. We have considered Mr Turnbull's comments with respect to 40km/hr on Clarkes Road between the site and Rodborough Road as part of a traffic management plan for vehicles to reduce night time noise and keep trucks to the designated truck route. We consider this would be desirable and, as part of an approved TMP, could be facilitated by the Council as road manager should it agree.

[136]

We accept the Council's submission that Clarkes Road has only ever been a rural farm track servicing farm paddocks and was constructed accordingly. There are no Council plans to reconstruct or upgrade Clarkes Road. We further accept that the Council is unable to fund the construction of Clarkes Road to a suitable standard to provide an all-weather access route to the broiler farm. There is a direct nexus to the improvement to Clarkes Road as a result of the proposed development.
Our findings with respect to the range of opinions about the standard and form of road and farm entry construction, and timing of such works, are as follows:
- The increased traffic volumes due to the broiler farm will still result in low traffic volumes, but the impact on the pavement from the heavy vehicles due to the expansive clay in the area will require a 270mm thickness sub base and a 190mm pavement thickness to address the increased pavement wear.
- The permit applicant should meet the reasonable costs associated with undertaking any additional testing to confirm the current depth of the existing sub-base and shoulders.
- The technical specifications for the materials to be used should be based on the Council's experience and similar to those used at other locations with expansive soils.
- Due to the potential for safety issues to arise during passing between the heavy vehicles and other both light and heavy vehicular traffic, the total formation width including full depth pavement shoulders should be a minimum of 6 metres to allow safe passing without having to drive off the road formation onto the adjacent land, which while being comparatively flat is considered by the experts to have limited bearing capacity when wet.
- The intersection of Clarkes Road and Rodborough Road should be upgraded to include sealing in accordance with the specification provided in the Council's draft conditions and generally in accordance with the layout as shown on the Traffix Design drawing G17049-01 dated 7 July 2014.
- The proposed farm entry should be at right angles to Clarkes Road. The entrance should be constructed to the same pavement standard as Clarkes Road and generally in accordance with the layout shown on the Traffix Design drawing G17049-2 dated 7 July 2014 and include a drainage crossing to the Council's design standard SD255.
- A condition survey should be undertaken prior to the commencement of any construction work and the road should be maintained in a similar condition by the permit applicant throughout the construction period to the satisfaction of the Council.
- All road upgrade works shall be completed prior to the use of the broiler farm commencing.

[142]

We have found that:
- The proposal has a number of cited benefits, although these have not been independently assessed.
- The subject land, being in a Farming Zone, is suitable for the proposed use "in principle" having regard to the Zone's purposes and the applicable suite of Scheme policies.
- The proposal meets many of the requirements of the Code and would be acceptable with respect to many of the technical elements relating to its operation and design.
- Contended impacts with respect to truck traffic are not reasons to refuse a permit.
- A number of concerns raised by parties in these proceedings could be addressed by permit conditions, such as road works and revisions to the proposed landscape treatment.
We have not been persuaded that:
- The increased separation distances relied upon by the permit applicant demonstrate "equal or superior performance"[53] with respect to Approved Measure E1 M1.3 and, further, that Standard E1 S1 and the Objective of E1 are met with respect to odour. That is, we have not been persuaded that there is adequate separation provided from sensitive uses with respect to odour (E1 S1) or that the risk of adverse amenity impacts on existing sensitive uses as a result of odour is minimised (Objective E1).
- The visual impacts of the proposed broiler farm in the public realm are entirely satisfactory or comply fully with the Code.
The risk of amenity impacts as a consequence of odour is a critical issue with respect to broiler farms. The landscape impacts are also an important element within the Code and, more broadly, the Scheme although it is fair to say our concerns on this point are secondary to those of odour risks.
The benefits and acceptable outcomes we have found could be achieved by this permit application do not outweigh our conclusion that some elements of the Code have not been fully complied with and that we cannot be satisfied that the proposal achieves an acceptable outcome. The concerns are not ones that we find can be addressed by permit conditions and have led us to set aside the Council's decision and direct no permit issue.

At a glance

Court

Decision date

Source

Judgment (143 paragraphs)

Lewis v Central Goldfields SC [2015] VCAT 410 (14 April 2015)

Parties