Ophir Poultry Pty Ltd v Central Goldfields SC & Ors [2013] VCAT 428

Ophir Poultry Pty Ltd v Central Goldfields SC & Ors [2013] VCAT 428 - VCAT 2013 case summary — Zoe

[23]

To achieve the purpose, the Code includes various requirements in relation to siting and size of broiler farms, construction, management and operation of farms and ongoing monitoring.
Under the Code, the proposed 200,000 bird farm would remain classified as Class B farm with specified minimum separation distances from a sensitive use of 472 metres measured from the external edge of the broiler shed.
We note that the proximity of a 200,000 bird boiler farm on the adjoining site combined with a 200,000 bird farm on the review site would not create a 'farm cluster' as defined in the Code. The combined farms would still be classified as a Class B farm and its attendant size related environmental management requirements.
One of the purposes of the Code is to protect local amenity from adverse impacts including odour. It aims to achieve this through the application of best environmental practice for example through the operation and management of broiler farms. Above 400,000 birds there are heightened environmental management requirements. The classification of the Potts Lane farms as Class B was not disputed by the parties.
State and local policy in the Scheme provide a number of themes that are relevant to the proposal including:
- Strong support for agricultural production in rural areas including facilitation of intensive animal industries.[3]
- Consideration of amenity impacts arising from intensive agricultural industries including noise effects on sensitive land uses and protection of air quality.[4]
- Minimising potential for land use conflicts through appropriate siting, management and suitable separation between land uses that reduce amenity and sensitive land uses.[5]
Of note is the Environment Significance Overlay Schedule 2 - Air Emissions Buffer (ESO2) that applies to the review site and nearby land. This overlay seeks to control development of land for sensitive land uses within the buffer distance of the abattoir effluent disposal ponds located to the north west of the review site and encourages agricultural, industrial and commercial developments that are less sensitive to odour to locate within the buffers whilst discouraging residential development. No permit is required under ESO2 as no buildings or works are proposed.

[24]

It is the position of the applicant that there is no planning basis to refuse the increased bird numbers sought given the proposal fully complies with the Code, is located in a Farming zone, has excellent sealed road access and will facilitate outcomes sought by planning policy to expand intensive farming enterprises and assist in attracting poultry processing industries to industrial areas in the municipality.
Concerning the alleged complaint history, Mr Peake asserts the complaints come from a small number of residents, at least some of the parties have been mistaken about the nature of the odours, the extent of the odours are overstated or the parties are unusually sensitive to poultry odours. It is relevant, in his view that the vast majority of nearby residents have not complained about odours or objected to the current application. He pointed out there are a variety of potential sources of odour in the area including a former municipal land fill and general farming uses and further that the complaints do not differentiate between the two broiler farms. Mr Peake criticised the information presented on complaints on the basis that there was inadequate detail about location and timing of complaints, weather conditions, extent of odour impact, the conditions at the farm at the time of complaint, whether complaints had been responded to or verified by Council or EPA officers attending the property.
Mr Peake acknowledged that there had been some isolated incidents where odour had occurred. However he pointed out the despite investigation of at least some of the complaints, neither Council or the EPA have detected any unreasonable odour at either of the farms or identified any failure to operate the farms other that in accordance with best practice, save for the spent litter and bird composting issues that were the subject of a now resolved Clean Up Notice.
The applicant submits that the Code is designed to protect sensitive land uses from unreasonable odour impacts not from any odour impacts and parties who live in a Farming zone or in a small country town with an interface with a farming zone cannot be guaranteed to be free of odour. Mr Peake cited the Department of Primary Industries publication Living Together in Rural Victoria: Tips for Purchasing Rural Land [6]which in relation to this case says that agriculture is an industry and it can, from time to time and in certain locations, be noisy, dusty and smelly. It advises those considering buying rural land to identify, for example, intensive animal industries within a few kilometres and get information on prevailing wind direction and assess the likely impact of odours.
In the applicant's view the unverified odour complaints from a small number of residents from locations where many other dwellings would be expected to be affected does not justify rejection of a relatively small increase in the number of birds at an existing broiler farm that is in accordance with the Code.

[25]

Council advised that in the first half of 2011 there was a series of complaints about odour from several Carisbrook residents to the north and east of 132 Potts Lane. In the last 18 months, Council advised that there have been few complaints lodged but noted that most complaints during this period have been lodged directly with the EPA. In his submission, Mr Cameron, for Council, stated that the Potts Lane broiler farms ... have generated ...an unprecedented degree of neighbourhood objection.... He also said that these complaints have, no doubt, a basis in fact despite the subjective nature of odour matters.
Council referred to the EPA comments on the application[7] that advised of a significant number of community complaints regarding broiler farm odour and noise in this area and that an increase in bird density would increase odour generation and potentially cause additional negative impacts on the local community. If Council is to progress the application, the EPA strongly suggested conducting odour modelling inclusive of the adjoining broiler farm at 76 Potts Lane, to help determine what additional odour impacts are likely to result on nearby premises from additional bird numbers.
The timing of the application that precedes construction of the final 3 sheds of the 5 shed complex and stocking at approved capacity, in Council's view does not allow appraisal of the performance of the operation and the external impacts, especially odour. In the context of an extensive complaint history this allow inadequate opportunity to assess performance and is inappropriate in terms of assessing potential amenity impacts.
Acknowledging that the broiler farm complies with the Code separation distances, Council submits that these distances are only effective if best practice operation and management is employed. In relation to the existing broiler farm on the review site and the adjoining broiler farm, Council submits that the complaints received from locations at up to 2km from the farms suggest the operational practices have not been adequate.
The efficacy of the Code is, in Council's view, entirely dependant on best practice performance by farm management and operation. Council concedes that the two farms have operated with fewer complaints more recently and allows that a continued, consistent operation of both farms that avoids unreasonable odour emissions could result in support for a future application to expand bird numbers.

[26]

Mrs Blazko submitted that odours from the existing broiler farms prevent her family living normally on their property. Specifically she raised concerns about difficulty in planning outdoor activities due to unpredictable nature of odour, needing to close house entirely due to odour and the triggering of asthma by the irritant nature of the odour. Despite numerous complaints, primarily to the EPA since 2010, the only apparent action was a Clean Up Notice issued in 2012. Mrs Blazko expressed frustration over the broiler farm operating without odour emissions for a period of time after the clean up notice was served which in her view demonstrated that with proper management unacceptable odours can be avoided. In her submission, greater bird numbers should not be approved if odours cannot be continuously contained with the current bird numbers.
Mr Rowe advised that offensive and intrusive odour from the broiler farms limit enjoyment of his garden and pool despite his house being located about 2140m from the farms. He advised he had made numerous complaints about odour to both Council and the EPA since 2009. In a situation where past odour events have demonstrated that the applicant's inability to properly manage the farms, Mr Rowe submits another 40,000 birds should not be approved.
Mr Rowe advised that he has submitted, since 2009, over 30 formal and numerous informal complaints about offensive odours to the Council and the EPA and Mrs Blazko advised she had reported odours to the EPA on some 29 occasions, noting that there have been many times where odour was unacceptable but the reporting procedure too onerous. Mrs Blazko and Mr Rowe told the Tribunal that they cannot distinguish whether odours emanate from the 132 Potts Lane broiler farm or from its neighbour although acknowledge complaints prior to December 2010 would relate only to 76 Potts Lane.
Mr Rowe and Mrs Blazko advised that following a public information meeting on the issue in 2010,[8] residents were instructed, instead of contacting Council with complaints, to complete an odour diary which EPA distributed at the meeting. Mr Rowe said that he has collected completed odour diaries from several other residents and submitted them to EPA. Mrs Blazko said she has completed 6 diary booklets. Both Mr Rowe and Mrs Blazko expressed frustration with the lack of response from the EPA to the complaints made.
Mr Rowe disputes the applicant's submission that the odour is experienced by only a couple of residents. He described Carisbrook as a small close knit community where people don't feel comfortable 'dobbing in locals' and he suggested that this explains why only he and Mrs Blazko attended the Tribunal.
Statements of grounds by two other respondent objector parties raise concern about regular offensive odour events that interfere with enjoyment of homes, both inside and outside.
In short, the position of the respondent objectors is that given unacceptable odours can't be controlled with current numbers, additional birds cannot be reasonably supported.

[29]

Mrs Blazko and Mr Rowe described the impact of the odours on their lives with both variously saying the smell often prevents them inviting people over to their homes, inhibits their enjoyment of their private outdoors areas, requires them to turn off evaporative coolers to prevent the smell entering their houses, being woken up by the smell, feeling ill and having the odour infiltrate their soft furnishings. Mr Blazko's husband who trains horses at their property is sometimes prevented from working outside because the smell is so overwhelming. Mrs Blazko describes it as a rotten vomit like smell and Mr Rowe as a dynamic lifter type smell.
Following odour complaints and inspections of 132 and 76 Potts Lane the Environment Protection Authority (EPA) under Section 62A of the Environment Protection Act 1970, issued a Clean Up Notice on the owner of 132 Potts Lane. The works required of the Clean Up Notice were complied with and the notice revoked on 14 November 2012. The EPA letter of 21 January 2013 to Council implies that since 7 November 2012 that EPA had received only two complaints. However, Mr Rowe and Mrs Blazko said they have each phoned the complaints phone number during that period and had lodged additional complaints since 21 January 2013.
Mr Peake asserts that the some of the parties have been mistaken about the odours, or have become overly sensitive to poultry odours. He also asserted that there are other potential odour sources in the area. The Tribunal after having inspected the area and considered submissions is not convinced by these arguments. We found the submissions of Mrs Blazko and Mr Rowe credible and their concerns about odour impacts were supported by the statement of grounds submitted by two other respondent objector parties, the EPA letters, EPA actions and Councils' submission.
We agree with Mr Peake's criticisms about how complaints have been dealt with in relation to the Potts Lane broiler farms. There is no clear information on the number and timing of complaints, the location of complainants, the extent of the odour impact, weather conditions and importantly whether the complaints were confirmed by inspection by either of the relevant authorities. We acknowledge that the applicant was unaware of at least some of the complaint history and in such circumstances cannot be criticised for failing to respond. It appears to the Tribunal that while the residents including Mrs Blazko and Mr Rowe have been reporting odours to the EPA for more than two years, apart from the Clean Up Notice and associated inspections,[9] the EPA has failed to adequately respond and its communications with the parties has been poor.
Despite our concerns about the complaint management regime, we have been persuaded that there is an odour issue caused by the existing broiler farm operations.

[30]

The applicant did not present any expert evidence that provided the Tribunal with an odour assessment. The Tribunal must therefore rely on other information to determine whether the odour impacts are above the acceptable level.
Under Clause 60 of the Planning and Environment Act 1987 the Council, and the Tribunal on review, may consider any relevant state environment protection policy. In this instance the State Environment Protection Policy (Air Quality Management) is relevant and in particular Schedule A. This Schedule includes an odour design criteria that, at the 99.9 percentile averaged over three minutes, odour should not be more than one odour unit at and beyond the property boundary. However a footnote to the Schedule allows for a design criteria of 5 odour units (over a 3 minute averaging time, at the 99.9 percentile) not to be exceeded at and beyond the boundary for intensive animal husbandry and that certain criteria may be applied. Therefore at and beyond the boundary, based on our calculations the 5 odour units could be exceeded for up to a total of approximately 9 hours per year for odour events of more than 3 minutes. This design criteria is a based on modelling of air emissions, (which in this case have not been provided), and includes upset conditions.
Five odour units provides us with some guidance. In Barac v Strathbogie SC[10] the Tribunal, which was also considering an application for a broiler farm and had the benefit of expert witnesses and air emissions modelling, concluded that in assessing impacts the following bands should apply:
- 0-5 OU will be so unlikely to cause annoyance as to be discounted, as this would represent an odour of imperceptible to very weak odour;
- 5-10 OU may be detectable and recognisable but very unlikely to lead to annoyance and adverse impact on amenity, representing a weak to distinct odour;
- 10-20 OU is likely to be perceived as a distinct to strong odour and may be possible but not very likely to have an impact on amenity;
- 20-40 OU is a strong to very strong odour that is likely to have an adverse impact on amenity if it occurs often enough; and
- 40 OU or more would be a very strong odour that if it were to occur would be an adverse impact on amenity.[11]
Based on the descriptions of the odour events experienced by Mrs Blazko and Mr Rowe and the impact bands provided in Barac v Strathbogie SC we consider that the odours from the Potts Lane broiler farms are excessive and, at and beyond their boundaries, certainly far exceed the allowance of 5 odour units for intensive animal husbandry under State Environment Protection Policy. Furthermore, it appears that the odour events experienced by the respondents are of a duration and frequency that is unacceptable. The applicant has not provided expert evidence or odour modelling to refute this. While there could be an expectation of some farming odours impacting on properties such as Mrs Blazko's which is in the Farming Zone, the odours should not be of the severity described and this is even more applicable for those living in residential zones.
Mr Peake acknowledged that there had been some isolated incidents where odour had occurred. Both broiler farms use town water and during the drought the water supplied had a higher salt content which in turn affected the birds and resulted in odour. A desalination plant has been purchased to overcome any future occurrence of this problem. Odour also occurred recently as additional cooling was required during an above 40 degrees Celsius day required the addition of cooling air to keep the chicks alive.[12] We were informed there haves been some recent infrastructure improvements and upgrades to sheds. The Tribunal however is not convinced that the complaint history supports a view that the adverse odour incidents are isolated or relate only to extreme weather events.
It is relevant in our view that the current operation of 132 Potts Lane is 52,000 birds under its approved capacity. If operating at its approved capacity, there is potential for increased adverse odour impacts.

[31]

By order dated 8 April 2013, the Tribunal affirmed the decision of Central Goldfields Shire Council in relation to permit application no. C013/12 and refused the application to amend a planning permit D232/02 issued for a broiler farm at 132 Potts Lane, Carisbrook.
Correspondence was received from the applicant after the hearing requesting that a Correction Order be issued to address a number of errors. Copies of the correspondence were sent to the other parties to the proceeding allowing an opportunity to make a submission on the request for a correction order. Council and Mr Rowe made a submission.
Section 119 of the Victorian Civil and Administrative Tribunal Act 1998 provides for the correction of orders in certain circumstances including where there has been a clerical mistake or an error arising from an accidental slip or omission.
We have found that there are errors in the reasons and find it appropriate to authorise a correction of the Order.
Having considered the request and the submissions made we reissue this Order with corrected reasons that include the following corrections:
- In paragraph 15 the population of Carisbrook is changed from 7630 to 713, the figure as submitted by the applicant.
- Footnote 8 cited in paragraph 40 has been altered to change a reference to a public meeting. The corrected footnote refers to a meeting on 23 March 2010 that was held to discuss permit condition enforcement strategies and actions to address issues with odour and dust arising from the broiler farm at 76 Potts Lane. The incorrect meeting date referred to in the original Order was based on information in Council's submission which they have subsequently advised was in error. We do not include reference to another meeting held on 26 October 2010 since the purpose of the footnote is to identify when residents were instructed to complete odour diaries distributed by the EPA.
- Footnote 9 cited in paragraph 50 is altered to reflect the correct reference to an odour specified in an EPA Clean Up Notice. The original footnote included errors in relation to the description of the odour and its reference in an EPA inspection report.
- Footnote 12 cited in paragraph 56 is altered to refer to August 2011 rather than November 2012 to show the correct date of an odour episode relating to a farmer using chicken litter as fertiliser.

At a glance

Court

Decision date

Source

Judgment (43 paragraphs)

Parties

Cases Cited (1)

Ophir Poultry Pty Ltd v Central Goldfields SC & Ors [2013] VCAT 428 (8 April 2013)