Plaintiffs v Defendants

2 The proceedings relate to three 400,000 bird broiler farms proposed by the first defendant on land at Baringhup West, within the Shire of Mount Alexander ('the responsible authority').

3 On 5 December 2013, the first defendant applied to the responsible authority under the Mount Alexander Planning Scheme ('the Scheme') for three permits to develop and use the land identified in each application for the purpose of a Class B Broiler Farm, each having a capacity of 400,000 birds. Each farm was proposed as an independent broiler farm comprising eight broiler sheds, access roads, water collection and supply, machinery sheds, staff amenities, backup power and ancillary services. The officer report recommended the grant of permits. The responsible authority refused the permit applications.

4 On 13 November 2014, the first defendant lodged three applications for review with the Tribunal. The plaintiffs, together with other objectors, lodged statements of grounds and opposed the applications for review.

5 Following directions hearings, the applications for review were heard at Bendigo on 23 March 2015. The plaintiffs submitted, as a preliminary matter, that four days earlier two prefabricated dwellings had been placed on properties that some of them owned. The two dwellings had been placed within the separation distance, as defined in the Victorian Code for Broiler Farms 2009 ('the Code') published by the Department of Primary Industries,[2] for Farms 1 and 2. The plaintiffs also said that occupancy permits and certificates to use septic tanks had recently been granted in respect of the prefabricated dwellings. The dwellings had been occupied by the first plaintiff and some other objectors. The Tribunal then heard argument and undertook a view.

6 On 1 April 2015, the Tribunal adjourned the hearing and gave directions for the filing of written submissions by the parties. Two of the questions it posed were:

(1) [Is] the presence of the nearby recently constructed structures on the Forbes and Smith land to be taken into account in assessing sensitive uses and separation distances for the three proposed 400,000 bird broiler farms being applied for?

(2) Is the relevant time for the consideration of classification and assessment of the proposed broiler farms fixed at and limited to the date on which the permit applications were lodged with the responsible authority?[3]

7 In the interim determination, Senior Member Byard, a legally qualified member of the Tribunal,[4] answered the two questions in the following manner:

(2) Yes, in relation to the classification of broiler farms; and yes, in relation to new dwellings established within the proposed separation distances and in relation to proposed changes to broiler farms after the making of the present application, but otherwise not necessarily.[5]

8 The full hearing of the applications for review extended for a total of 18 days. In the final determination, the Tribunal directed the issue of permits for each broiler farm.[6]

9 The plaintiffs seek to review the interim and final determinations on five questions of law and seven grounds of appeal.[7]

10 The questions of law listed in the amended proposed notice of appeal are:

1. The manner in which the provisions of the [Scheme], incorporating the [Code], concerning separation distances from broiler farms are to be applied in circumstances where dwellings have been erected and used within the relevant separation distances after the permit application is lodged, but before a decision is made to grant a permit for the broiler farms;

2. The manner in which the word 'property' in Approved Measure E1 M5.1 of the [Code] is to be interpreted concerning land comprised of lots which do not adjoin another lot in the same ownership, or lots in the same ownership and which adjoin each other, where lots are considered to adjoin each other if they are separated only by a stream, stream reserve, or unmade or unused government road or rail reserve;

3. The manner in which the word 'property' in Approved Measure E1 M5.[2] of the Code is to be interpreted concerning land comprised lots which do not adjoin another lot in the same ownership, or lots in the same ownership and which adjoin each other, where lots are considered to adjoin each other if they are separated only by a stream, stream reserve, or unmade or unused government road or rail reserve;

4. Whether it was open for the Tribunal to have found that Crown allotment 3BE Section 3 Parish of Eddington was not a 'property' within the meaning of Approved Measure E1 M5.1 of the Code;

5. The manner in which the provisions of the Code are to be interpreted concerning the classification of broiler farms as being of a particular class.[8]

1. The Tribunal erred in law in holding that the presence of recently constructed dwellings on the Forbes and Smith land is not be to taken into account in assessing separation distances from sensitive uses for each of the three proposed 400,000 bird broiler farms;

2. The Tribunal erred in law in holding that the relevant time for classifying, and assessing the separation distances for, the broiler farms is fixed on the day or days on which the permit applications were lodged with the responsible authority;

3. The Tribunal erred in law in directing that each proceeding ought be listed for hearing in circumstances where, based on the Tribunal's findings of fact, the [Scheme], incorporating the [Code], prohibited the grant of a planning permit in respect of the applications which are the subject of proceedings P2030/2014 and P2031/2014, as those applications cannot meet the separation distance requirements defined by Formula 1 of the [Code];

4. The Tribunal erred in holding that the word 'property' in Approved Measure E1 M5.1 of the [Code] means land comprised in a lot which does not adjoin another lot in the same ownership, or lots in the same ownership and which adjoin each other, where lots are considered to adjoin each other if they are separated only by a stream, stream reserve, or unmade or unused government road or rail reserve;

5. The Tribunal erred in holding that the word 'property' in Approved Measure E1 M5.2 [of the] Code means land comprised in a lot which does not adjoin another lot in the same ownership and which adjoin each other, where lots are considered to adjoin each other if they are separated only by a steam, stream reserve, or unmade or unused government road or rail reserve;

6. The Tribunal erred in law in determining that the land comprising Crown allotment 3BE Section 3 Parish of Eddington was not a 'property' within the meaning of Approved Measure E1 M5.1 of the Code;

7. The Tribunal, having held that the word 'property' in Approved Measure E1 M5.1 [of the] Code means land comprised in a lot which does not adjoin another lot in the same ownership, or lots in the same ownership and which adjoin each other, where lots are considered to adjoin each other if they are separated only by a stream, stream reserve, or unmade or unused government road or rail reserve, erred in law in failing to apply this holding to the subject land when assessing the classification of the proposed use; and, as a consequence, erred in determining that the proposal was for three, Class B broiler farms; and thus failed to characterise the proposal as one Special Class broiler farm (for which a permit could not have been granted). [9]

12 The parties who appeared before the Court were the plaintiffs and the first defendant. An officer of the responsible authority attended the hearing but did not appear.

13 The Planning and Environment Act 1987 (Vic) ('PE Act') lists the objectives of planning in Victoria as:

(a) to provide for the fair, orderly, economic and sustainable use, and development of land;

(b) to provide for the protection of natural and man-made resources and the maintenance of ecological processes and genetic diversity;

(c) to secure a pleasant, efficient and safe working, living and recreational environment for all Victorians and visitors to Victoria;

(d) to conserve and enhance those buildings, areas or other places which are of scientific, aesthetic, architectural or historical interest, or otherwise of special cultural value;

(e) to protect public utilities and other assets and enable the orderly provision and coordination of public utilities and other facilities for the benefit of the community;

(f) to facilitate development in accordance with the objectives set out in paragraphs (a), (b), (c), (d) and (e);

(g) to balance the present and future interests of all Victorians.[10]

14 The objectives of the planning framework established by the PE Act include:

(a) to ensure sound, strategic planning and coordinated action at State, regional and municipal levels;

(b) to establish a system of planning schemes based on municipal districts to be the principal way of setting out objectives, policies and controls for the use, development and protection of land;

(c) to enable land use and development planning and policy to be easily integrated with environmental, social, economic, conservation and resource management policies at State, regional and municipal levels;

(d) to ensure that the effects on the environment are considered and provide for explicit consideration of social and economic effects when decisions are made about the use and development of land;

(e) to facilitate development which achieves the objectives of planning in Victoria and planning objectives set up in planning schemes;

(f) to provide for a single authority to issue permits for land use or development and related matters, and to co-ordinate the issue of permits with related approvals;

(g) to encourage the achievement of planning objectives through positive actions by responsible authorities and planning authorities;

(h) to establish a clear procedure for amending planning schemes, with appropriate public participation in decision making;

(i) to ensure that those affected by proposals for the use, development or protection of land or changes in planning policy or requirements receive appropriate notice;

(j) to provide an accessible process for just and timely review of decisions without unnecessary formality;

(k) to provide for effective enforcement procedures to achieve compliance with planning schemes, permits and agreements...[11]

15 The power of a responsible authority to issue a permit is governed by Division 1 of Part 4 of the PE Act.[12] Before deciding on an application, a series of matters must be considered by the responsible authority:

(a) the relevant planning scheme; and

(b) the objectives of planning in Victoria; and

(c) all objections and other submissions which it has received and which have not been withdrawn; and

(d) any decision and comments of a referral authority which it has received; and

(e) any significant effects which the responsible authority considers the use or development may have on the environment or which the responsible authority considers the environment may have on the use or development; and

(f) any significant social effects and economic effects which the responsible authority considers the use or development may have.[13]

16 The responsible authority may also consider if the circumstances appear to require:

(g) any other strategic plan, policy statement, code or guideline which has been adopted by a Minister, government department, public authority or municipal council; and

...

(j) any other relevant matter.[14]

17 The review jurisdiction of the Tribunal relating to decisions by responsible authorities is governed by Division 2 of Part 4 of the PE Act:

(1) In determining an application for review under this Act, the Tribunal must -

(a) take account of any matter which the person or body in respect of whose decision the application for review is made -

(i) properly took account of in making its decision; or

(ii) was required to take account of in making its decision; and

(b) have regard to any matter which the person or body in respect of whose decision the application for review is made -

(i) properly had regard to in making its decision; or

(ii) is required to have regard to in making its decision.

(2) In determining an application for review under this Act, in addition to the matters referred to in subsection (1), the Tribunal -

(a) must take into account any relevant planning scheme;

(b) must have regard to the objectives of planning in Victoria;

...

(e) must take account of and give effect to any relevant State environment protection policy declared in any Order made by the Governor in Council under section 16 of the Environment Protection Act 1970;

(f) must (where appropriate) take account of the extent to which persons residing or owning land in the vicinity of the land which is the subject of the application for review were able to and in fact did participate in the procedures required to be followed under this Act before the responsible authority could make a decision in respect of the application for a permit;

...

(j) must (where appropriate) have regard to the number of objectors in considering whether the use or development may have a significant social effect;

(k) must take account of any other matter which the Tribunal is required by the provisions of this Act or any other Act to take account of in determining the application for review.[15]

18 The Scheme provides for integrated decision making:

Society has various needs and expectations such as land for settlement, protection of the environment, economic well-being, various social needs, proper management of resources and infrastructure. Planning aims to meet these by addressing aspects of economic, environmental and social well-being affected by land use and development.

Planning authorities and responsible authorities should endeavour to integrate the range of policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit and sustainable development for the benefit of present and future generations...[16]

19 Clause 14.01-1 of the Scheme deals with the protection of agricultural land, and provides:

Objective

To protect productive farmland which is of strategic significance in the local or regional context.

Strategies

Ensure that the State's agricultural base is protected from the unplanned loss of productive agricultural land due to permanent changes of land use.

Consult with the Department of Economic Development, Jobs, Transport and Resources and utilise available information to identify areas of productive agricultural land.

Take into consideration regional, state and local, issues and characteristics in the assessment of agricultural quality and productivity.

Permanent removal of productive agricultural land from the State's agricultural base must not be undertaken without consideration of its economic importance for the agricultural production and processing sectors.

In considering a proposal to subdivide or develop agricultural land, the following factors must be considered:

• The desirability and impacts of removing the land from primary production, given its agricultural productivity.
• The impacts of the proposed subdivision or development on the continuation of primary production on adjacent land, with particular regard to land values and to the viability of infrastructure for such production.
• The compatibility between the proposed or likely development and the existing uses of the surrounding land.
• Assessment of the land capability.

Subdivision of productive agricultural land should not detract from the long-term productive capacity of the land.

Where inappropriate subdivisions exist on productive agricultural land, priority should be given by planning authorities to their re-structure.

In assessing rural development proposals, planning and responsible authorities must balance the potential off-site effects of rural land use proposals (such as degradation of soil or water quality and land salinisation) which might affect productive agricultural land against the benefit of the proposals.

• land capability; and
• the potential impacts of land use and development on the spread of plant and animal pests from areas known infestation into agricultural areas.[17]

20 The objective of cl 14.01-2 is '[t]o encourage sustainable agricultural land use'. It provides:

Strategies

Ensure agricultural and productive rural land use activities are managed to maintain the long-term sustainable use and management of existing natural resources.

Encourage sustainable agricultural and associated rural land use and support and assist the development of innovative approaches to sustainable practices.

Support effective agricultural production and processing infrastructure, rural industry and farm-related retailing and assist genuine farming enterprises to adjust flexibly to market changes.

Facilitate the establishment and expansion of cattle feedlots, piggeries, poultry farms and other intensive animal industries in a manner consistent with orderly and proper planning and protection of the environment.

Policy guidelines

Planning must consider as relevant:

...

• [The Code], in considering proposals for use and development of broiler farms.[18]

21 The proposed broiler farms are in a Farming Zone. Clause 35.07 states the purpose of the zone and restricts the construction of dwellings:

Purpose

...

To provide for the use of land for agriculture.

...

To ensure that non-agricultural uses, including dwellings, do not adversely affect the use of land for agriculture.

...

Section 1 - permit not required

...

Dwelling (other than Bed and breakfast)

Must be the only dwelling on the lot.

The lot must be at least the area specified in a schedule to this zone. If no area is specified, the lot must be at least 40 hectares.

Must meet the requirements of Clause 35.07-2.

...[19]

22 Section 2 of cl 35 lists a broiler farm as a use of land in the Farming Zone for which a permit is required, and is subject to the condition that it '[m]ust meet the requirements of Clause 52.31'.[20]

23 Clause 52.31 deals with broiler farms and provides:

BROILER FARM

Purpose

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.

Scope

This clause applies to:

• Permit applications to use or develop land to establish a new broiler farm or to increase the farm capacity of an existing broiler farm.
• The use or development of an outdoor range area in association with an existing broiler farm.

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 [Code].

An application to use or develop land to establish a new broiler farm ... that meets the requirements of a Class A Broiler Farm as specified in the [Code], is exempt from the notice requirements of Section 52(1)(a), (b) and (d), the decision requirements of Section 64(1), (2) and (3) and the review rights of Section 82(1) of the [PE Act].

Notice of an application to use or develop land to establish a new broiler farm ... that meets the requirements of a Special Class Broiler Farm or Farm Cluster as specified in the [Code], must be given under Section 52(1)(c) of the [PE] Act to the person or body specified as a person or body to be notified in Clause 66.05.[21]

24 While not directly relevant, the provisions of the Scheme relating to wind energy facilities were referred to in argument. Clause 52.32-3 provides:

An application that includes a proposed turbine within one kilometre of an existing dwelling must be accompanied by:

• A plan showing all dwellings within one kilometres of a proposed turbine.
• Evidence of the written consent of any owner as at the date of that application of an existing dwelling located within one kilometres of a proposed turbine that forms part of a [w]ind energy facility...[22]

25 Clause 65 lists the decision guidelines to be considered by responsible authorities in deciding whether a proposal will produce acceptable outcomes. They include:

• The matters set out in Section 60 of the [PE Act].
• The State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.
• The purpose of the zone, overlay or other provision.
• The orderly planning of the area.
• The proximity of the land to any public land.
• The extent and character of native vegetation and the likelihood of its destruction.
• Whether native vegetation is to be or can be protected, planted or allowed to regenerate.
• The degree of flood, erosion or fire hazard associated with the location of the land and the use, development or management of the land so as to minimise any such hazard.[23]

26 Clause 72 provides definitions for the general terms found in the Scheme. They include:

A part (consisting of one or more pieces) of any land (except a road, a reserve, or common property) shown on a plan, which can be disposed of separately and includes a unit or accessory unit on a registered plan of strata subdivision and a lot or accessory lot on a registered cluster plan.

A structure, other than a tent, caravan, or vehicle, which is designed to be moved from place to place on more than one occasion.

Land comprised in:

a) a lot which does not adjoin another lot in the same ownership; or

1. lots in the same ownership and which adjoin each other.

Lots are considered to adjoin each other if they are separated only by a stream, stream reserve, or unmade or unused government road or rail reserve.[24]

27 Clause 81 provides for the Code to be an incorporated document in the Scheme.

28 The basis for planning decision making in Victoria has been confirmed by the Court of Appeal in recent decisions.[25] In Hoskin v Greater Bendigo City Council,[26] the Court of Appeal stated:

In determining whether a permit should be granted, the Council, as responsible authority in the first instance, and the Tribunal, in turn, when carrying out a merits review, must ultimately consider whether the proposed use and development is in the public interest in the sense that it will result in net community benefit.

...

The test of net community benefit implicitly recognises that a proposal may have both benefits and disbenefits which must be jointly evaluated.

It follows that it will not be sufficient for objectors to simply establish that a particular proposal will or may cause some planning disbenefit in order to demonstrate that a permit should be refused. Conversely, it will not be sufficient for a permit applicant to simply demonstrate that a proposal will or may convey some planning benefit in order to establish that a permit should be granted.

To like effect, cl 65 of the planning scheme requires a responsible authority to decide whether a proposal for which a planning permit is sought will produce 'acceptable outcomes':

...

Because a permit can be granted does not imply that a permit should or will be granted. The responsible authority must decide whether the proposal will produce acceptable outcomes in terms of the decision guidelines of this clause.

In Rozen v Macedon Ranges Shire Council, Osborn J addressed the test of 'acceptable outcomes' as follows:

The test of acceptable outcomes stated in the clause is informed by the notions of net community benefit and sustainable development. An outcome may be acceptable despite some negative characteristics. An outcome may be acceptable because on balance it results in net community benefit despite achieving some only of potentially relevant planning objectives and impeding or running contrary to the achievement of others.[27]

Both the terms of s 60 and the terms of cl 65.01 of the planning scheme mean that the consideration of most planning permit applications is multi-factorial. It will require not only a predictive judgment as to potential factual consequences of the proposed use or development but also an evaluation of the weight to be given to individual matters in the context of the case as a whole.[28]

30 These passages describe the duty of responsible authorities and the Tribunal in planning matters. They are the basis on which planning applications are decided in Victoria.

31 The Code has a pivotal role in broiler farm applications. It is the interpretation and application of the Code, and in particular the date or dates on which its provisions are applied, that is in issue in this proceeding. The Code replaces the first version that was published in 2001. The Code was substituted for its predecessor in all planning schemes in Victoria in 2009.[29]

32 The Code states that it is State planning policy to facilitate the establishment and expansion of broiler farms in a manner consistent with orderly and proper planning and protection of the environment. A permit for a broiler farm can be sought in the Farming Zone, Rural Activity Zone and Green Wedge Zone. Establishment of a new broiler farm is prohibited in all urban zones, the Rural Conservation Zone, the Green Wedge A Zone and the Rural Living Zone.[30]

33 The chapters of the Code address the application documentation and process requirements, broiler farm classification, key amenity and environmental issues and farm design and operation elements. Its provisions were canvassed extensively before the Tribunal.

34 The Code adopts a classification system for broiler farms. They are variously classified as Class A, Class B, Special Class or Farm Cluster. The Code applies substantially different information and assessment requirements, and different notification and review rights, to each classification.[31]

35 The Code gives guidance to permit applicants and responsible authorities on the land use considerations for the orderly and proper planning of new sensitive uses near existing broiler farm operations.[32] It addresses key amenity and environment issues which must be considered in the development of a new broiler farm or broiler farm expansion. They include odour, dust, noise, light spill, and visual amenity.[33]

36 The Code identifies three ways of avoiding adverse amenity impacts on nearby sensitive uses. The second of these is providing a 'separation distance' between the broiler shed and existing or potential sensitive uses. Separation distance is defined as:

...the distance from the nearest external edge of the new or existing broiler shed to the nearest external edge of the sensitive use (that is the nearest edge of the house) on land beyond the broiler farm property. It excludes sensitive uses directly associated with the broiler farm operations - eg. dwellings on the broiler farm property.

The separation distance is therefore the distance from the new or existing broiler sheds within which no sensitive use is located.

The Code uses a formula to determine the required minimum separation distance and which is based on the proposed farm capacity and the requirements set out in the 'Classification of broiler farms' section of this Code.

Separation distances provide sufficient space to minimise the risk of offensive odour and dust emissions under both routine and abnormal (or upset) conditions adversely impacting the amenity of existing sensitive uses. The greater the separation distance and the boundary setback, the lower the probability of offensive odour and dust adversely impacting the surrounding community.[34]

37 Section 5 of the Code is concerned with the classification of broiler farms. The Code recognises that the potential for broiler farm emissions to adversely impact on sensitive uses largely depends on:

• the distance to sensitive uses that the proposed development may affect;
• the number of birds kept on the farm;
• the design, management and operation of the farm; and
• local environmental conditions (including meteorology and topography).[35]

According to the formula in the Code, the minimum separation distance between broiler sheds and sensitive uses beyond the broiler farm boundary for a Class A or Class B farm with a capacity of 400,000 birds is 686m.[36]

38 The Code classifies a broiler farm as Class A if the farm capacity is 400,000 birds or less and the minimum separation distance requirement is fully contained within the broiler farm boundary.[37] A farm is classified as Class B if the farm capacity is 400,000 birds or less and the development can meet the minimum separation distance requirement, but the distance is not fully contained within the broiler farm boundary.[38]

39 A farm is a 'Special Class Broiler Farm' if it has a farm capacity greater than 400,000 birds, or if the development is unable to meet the minimum separation distance requirement but a reduction of separation distance is warranted through the adoption of odour reduction technology. If a farm is a Special Class Broiler Farm, an Odour Environment Risk Assessment ('Odour ERA') must be completed in accordance with Section 6 of the Code.[39] A farm is classified as a Farm Cluster Broiler Farm if the minimum separation distance overlaps with the minimum separation distance requirement of any existing, approved or proposed broiler farm that is the subject of a permit application, and the combined farm capacity of the broiler farms is greater than 400,000 birds. An Odour ERA must also be completed for Farm Cluster Broiler Farms.[40]

40 Section 5 of the Code provides that no new broiler farm development or expansion is permitted for farms that cannot meet the minimum separation distance requirements. However, the responsible authority may approve a reduction in the separation distance if odour reduction technology is incorporated into the farm design. This type of application is assessed as a Special Class Farm.[41]

41 The Code describes an Odour ERA as 'a staged process of modelling and analysing odour emissions from broiler farms'. It enables 'the responsible authority to assess the acceptability of the risk of offensive odour adversely impacting beyond the broiler farm boundary'.[42]

42 An Odour ERA is a three stage process undertaken by a permit applicant and entails:

(1) Stage 1. Air dispersion modelling to predict the potential impact zone and the integrity of the odour plume. This is assessed against the design criteria in the State Environment Protection Policy (Air Quality Management) ('SEPP (AQM)'). to determine whether the risk of odour amenity impact is low.

(2) Stage 2. The odour modelling is analysed to determine the odour impact on surrounding sensitive uses including dwellings. Other points may also be analysed to determine the odour risk to the use and development of land beyond the broiler farm boundary. This may involve the use of technology, management or contingency plans to reduce risk.

(3) Stage 3. Assessment and review of odour impacts is undertaken. This may involve design modification, reduction in the number of chickens, or relocation of broiler sheds. Further information may be required.[43]

43 An Odour ERA must be conducted in accordance with the SEPP (AQM).[44] This policy has significant and onerous requirements. An Odour ERA must be presented in a manner which enables the responsible authority to determine the acceptability of the risk of offensive odour adversely impacting on the amenity of existing sensitive uses and the orderly and sustainable use and development of land beyond the farm boundary.

44 An Odour ERA is an expensive and lengthy process requiring significant work by one or more specialist odour consultants and extensive consultation with the responsible authority, the Environment Protection Authority ('EPA') and stakeholders. It is likely to take months, and possibly more than a year, to complete.

45 Under cl 66.05 of the Scheme, notice of an application for a Special Class Broiler Farm or a Farm Cluster Broiler Farm must be given to the EPA.[45] The Code provides that the notice should be given 'as soon as the permit application is received' so that '[the EPA] can provide its response and enable the responsible authority to require any necessary further information early in the application process'.[46]

In its response, [the EPA] should state whether:

• the Odour ERA has been appropriately conducted;
• the Odour ERA has adequately addressed the relevant odour amenity issues; and
• the Odour ERA is consistent with the principles of the SEPP (AQM).[47]

47 The Code directs that the responsible authority 'must not accept any Odour ERA not conducted in accordance with the SEPP (AQM).'[48] For Special Class Broiler Farms and Farm Clusters, the Code encourages applicants to contact the EPA early to seek advice regarding the Odour ERA requirements and the information that will be required.[49]

48 Section 7 of the Code specifies six best practice elements of farm siting, design and operation. Each of the six elements must be considered and addressed when planning a broiler farm development. All planning permit applications for a new or expanded broiler farm must be assessed against each element.

Farm operation and management (environmental management plan (EMP))[50]

50 The six best practice elements are assessed through objectives, standards, and approved measures.[51] A permit applicant must satisfy the objectives of each element. Standards contain the requirements to meet the objective. In most cases, a standard is expressed as a design or operational requirement. All permit applications must comply with all relevant standards. An approved measure is an approach, action, practice or method that permit applicants should incorporate into their development proposal in order to comply with the standard. Where a development proposal adopts all the approved measures for a standard the application is deemed to comply with the standard. Where the circumstances of a particular development proposal may provide a need or opportunity to propose alternative ways of meeting the objectives and standards, the responsible authority may consider an alternative measure if an applicant can demonstrate that the relevant Code objectives and standards can still be met with equivalent or superior performance. These may include new technology or innovative approaches if they can be demonstrated to satisfy code requirements. The Code elements are considered as a whole, as many of the approved measures are interrelated.[52]

51 As mentioned above, Element 1 is concerned with location and siting objectives. The Code expressly provides that the requirements of Element 1 'apply in addition to the separation distance requirements used to determine farm classification ...'[53]

To ensure the location and size of the broiler farm, and the siting of the broiler sheds, temporary litter stockpiles, compost piles and litter spreading areas:

• minimise the risk of adverse amenity impacts on nearby existing, planned and potential future sensitive uses as a result of odour, dust and noise
• do not adversely affect the use and development of nearby land

53 This objective seeks to minimise amenity impacts on three classes of uses. They are 'nearby existing, planned and potential future sensitive uses'. The expression 'existing uses' embodies all nearby existing sensitive uses. The expression 'planned uses' embraces sensitive uses planned under the provisions of a planning scheme, or for which a planning permit has previously been granted. The expression 'potential future sensitive uses' is more problematic. It involves consideration by the responsible authority and the Tribunal of the potential for a future sensitive use to be located nearby to the proposed broiler farm. This is a factual matter, involving consideration of the zoning of the surrounding area and the probability or potential for the use of nearby land for a sensitive use.[55]

54 Standard E1 S5 is entitled 'Future use and development of neighbouring land'. It states:

Broiler sheds are sited so that offensive odour, dust and noise emissions will not adversely impact the orderly and sustainable use and development of land located beyond the farm property boundary, including the ability to establish a dwelling (excluding a bed and breakfast or caretaker's house) on a vacant property, having regard to:

• the existing and likely future use and development of the land including any approved sensitive uses
• the existing physical and environmental characteristics of the land
• the purpose and requirements of the zone applying to the land
• any applicable land use decision guidelines, policies and strategies in the planning scheme.[56]

55 The standard addresses existing and likely future use and development. The concept of existing use and development is familiar enough. The concept of 'likely future use and development' involves a factual decision by the responsible authority or Tribunal that a particular use or development is more likely than not. This involves the consideration of relevant factual matters, including the provisions of the applicable planning scheme, zoning, policies, extant proposals, and the nature and characteristics of the surrounding land.[57]

56 To comply with Standard E1 S5, the Code requires the incorporation of various specified approved measures into the development proposal.[58]

Class B Farms - The required minimum separation distance covers no more than 50 per cent of the area of a property located beyond the broiler farm property boundary.[59]

A footnote explains that Approved Measure E1 M5.1 applies to 'both vacant land and land that already has a dwelling', referring also to a later part of the Code which is concerned with 'Strategic and Land Use Planning Considerations'.[60]

58 Approved Measure E1 M5.2 is concerned with Class B farms, where a property beyond the broiler farm boundary is not currently developed with a dwelling and the remaining area of the property is capable of providing a 20m x 30m building envelope for a dwelling after taking into account various siting requirements, including any applicable planning scheme requirements. A footnote makes it clear that this approved measure is intended to apply both to circumstances where a dwelling can be built as of right, and where a permit is required for a dwelling.

59 Although they need not be set out here, it is appropriate to note that all of the other objectives, standards and approved measures were considered at length by the Tribunal and determined in favour of the first defendant.

Strategic and land use planning considerations

60 Section 11 of the Code is entitled 'Strategic and Land Use Planning Considerations' and is intended to provide guidance on 'land use planning considerations for new or expanded broiler farms, farm upgrades, and for the development of new sensitive uses close to existing broiler farms, including land rezoning and subdivision.'[61] The Code refers to the duty of planning authorities 'to provide sound, strategic and co-ordinated planning of the use and development of land in its area.[62] It highlights that '[t]his duty applies not only to the development of a broiler farm, but also to a proposed residential development, subdivision or to other sensitive use developments in the vicinity of an existing broiler farm.'[63]

61 When considering land use and development applications involving dwellings near an existing broiler farm, the Code advises that responsible authorities should consider 'the impacts of broiler farm emissions on potential future sensitive uses and restrict their encroachment into the separation distances required under the Code'.[64]

62 The Code recognises that responsible authorities cannot constrain or control the construction of dwellings in a rural area where planning permission is not required, even if the dwelling is to be built within the separation distance of a nearby broiler farm. The Code says:

When considering land use and development applications (including subdivisions and rezonings) that will permit the establishment of dwellings and other sensitive uses nearby an existing broiler farm, responsible authorities should consider the impacts of broiler farm emissions on potential future sensitive uses and restrict their encroachment into the separation distances required under this Code.[65]

63 It is plain that responsible authorities are encouraged to avoid or minimise possible impacts or conflicts occasioned by the construction of dwellings close to broiler farms by advising how these impacts can be minimised by resiting the proposed dwelling and through the use of landscaping.[66]

64 The permit applications made by the first defendant included a planning report, which described the proposed broiler farms and sought to address the requirements of the Code. The applications proceeded on the basis that each proposed broiler farm was classified as a Class B Broiler Farm, with a capacity not exceeding 400,000 birds. Each proposed farm met the 686m separation distance requirement, as demonstrated by plans submitted with the applications showing the relative location of surrounding properties and existing houses. Because the proposed farms were Class B farms, an Odour ERA was not required under the Code.

65 The planning report states that the development plans met Standard E1 S5 of the Code. The requisite setback distances were also satisfied.[67]

66 The officer report presented to the Mount Alexander Shire Council ('Council') meeting on 28 October 2014 recommended that permits be granted for each application subject to some conditions. The officer report reviewed the relevant provisions of the Scheme and the Code. It accepted that each farm was a Class B farm and, therefore, that the applications did not require the preparation of an Odour ERA.[68]

67 On 5 November 2014, the Council, acting as the responsible authority, issued refusals to grant a permit. There were seven grounds of refusal provided, each referring to a clause in the scheme.[69]

68 The Tribunal's interim determination was of substantial length. It is only necessary to refer here to those parts of the interim determination that relate to the questions and grounds before the Court.

69 Before the Tribunal, the plaintiffs contended that the erection of the two prefabricated dwellings changed the classifications of the proposed broiler farms, with the result that the Class B broiler farms originally applied for were prohibited.[70] The Tribunal noted that this was sought to be done unilaterally, in the sense that it was done without the consent of the first defendant.[71]

70 After reviewing the Scheme's provisions relating to the buildings and works required in the erection of the two prefabricated dwellings, the Tribunal said:

The installation and occupation of the two houses has raised an issue as to whether the Forbes and the Smiths have effectively imposed a legal veto or prohibition barring these broiler farm permit applications, or at least two of them.[72]

71 The use by the Tribunal of the phrases 'legal veto' or 'prohibition barring these broiler farm applications' may be overstated. The legal effect of the erection of the two prefabricated dwellings is not the prohibition of the broiler farm applications. Rather, the erection of the new dwellings changes their classification to a Special Class farm. However, the change of classification is of critical significance to all concerned. It may 'effectively' bring the applications to an end.

72 If the plaintiffs' contention is correct, the applications would be redirected down a different regulatory pathway involving new and very different information, documentation and processing requirements. An Odour ERA would be required. The first defendant would be required to notify and deal with the EPA. Neither of these steps had occurred or been in contemplation. At the very least, the applications would be very significantly delayed while this new expert documentation was compiled and completed in consultation with the EPA. Moreover, it was entirely possible, despite the additional costs and delays, that the applications would not satisfy the SEPP (AQM) and odour controls. In reality, the applications might never proceed.

73 The plaintiffs do not suggest that anything ultimately turns on the use of terms such as 'prohibition' and 'veto' by the Tribunal. Rather the issue which arises is as to the correct time for classification under the Code.

74 The Tribunal noted that the law to be applied in a planning review before the Tribunal is ordinarily that which stands at the time of the decision.

75 The Tribunal then said that it was possible for '...the law, including the law as set out in the planning scheme, to provide otherwise.' [73]

What has changed is not the law, but certain facts, and in particular the installation and occupation of the Forbes and Smith houses. The question rather is, how is the law, itself unchanged, to be interpreted and applied in this changed factual situation? If it was not for the introduction of these structures, these cases would proceed to a hearing on their merits, on the basis of the applications and other relevant evidence, submissions and materials. Should they still proceed in that way? Alternatively, does this changed factual situation mean that according to the unchanged law these proposals have become prohibited?[74]

77 The Tribunal summarised the competing arguments before it:

The position of the Forbes group is at least simple. They say the structures are there in fact, though only recently introduced. The Code requires that there be no sensitive uses like houses within the separation distances for Class B broiler farms for 400,000 birds and, although that situation was satisfied up until a day or two before the commencement of the hearing at Bendigo, once the structures were installed and occupied two of the proposals became barred by having dwellings within their separation distances.

The argument to the contrary suggests that, upon a correct interpretation of the statutory provisions constituting the relevant law, read as a whole and having regard to their purpose and the scheme upon which they are based, the structures are to be disregarded so that the applications for review can and should proceed on their merits. It is the date of the permit application that is relevant for the purpose of deciding if a Class B broiler farm is permitted.[75]

78 Turning to the interpretative principles that should apply to the Scheme and the Code, the Tribunal said:

It would be possible for the planning scheme and/or the Code to be explicit on this point. There could an express statement, one way or the other, as there now is in relation to wind energy facilities which I will now discuss and compare. It would be convenient if the broiler farm provisions were clear on this point. It is not possible, in drafting legislation, to anticipate and deal with all possible contingencies. It is sometimes necessary to interpret and apply statutory provisions to deal with situations not expressly dealt with in the text. Modern statutory interpretation calls for a construction that would promote the purpose or underlying object of legislation (whether or not expressly stated) which is to be preferred to a construction that would not promote such purpose. The much more recent provisions in relation to wind farms reveal consciousness on the part of those drafting the legislation of a need to be explicit. The broiler farm provisions date originally from an earlier time. It may be that it did not occur to the people drafting this subordinate legislation that there would be a need to deal with this question, perhaps on the realisation that not every unlikely contingency can be catered for and in the expectation that the correct interpretation of the provisions would lead to the correct resolution of the question. In the absence of a clear legislative statement there is room for argument as to what the correct interpretation is and whether its application involves a consideration of, or an exclusion of consideration of, the Forbes and Smith structures.[76]

79 Comparing the position that arises under the Code to that which would apply if the proposal were for a wind energy farm and cl 52.32 of the Scheme applied, the Tribunal said:

It is clause 52.32 of the planning scheme that deals with wind energy facilities. The provisions in relation to the location of these facilities are more severe than those relating to broiler farms. Clause 52.32-3 provides that the application for permission for a turbine within 1 km of an existing dwelling must be accompanied by a plan showing all dwellings within 1 km of the proposed turbine and evidence of the written consent of the owner of each existing dwelling at the date of the application to the proposed turbine. (When originally introduced that provision applied to existing dwellings within 2 km of the turbine but an amendment has reduced it to 1 km). The provision is more severe in as much as it gives a single owner of such a house the power to veto such a turbine, but the relevant time is not when a determination is made, but when the application is made. The existing dwelling must exist at the time of the application. A proposed dwelling or a contemplated one, or even a partly constructed one does not qualify. The owner of a house to be used as a dwelling that is only partly constructed at the time of the application and which is completed after the application but before determination of the permit application apparently lacks standing to impose a veto.

If this case concerned an application for wind energy facilities and the Forbes and Smith houses were constructed long after the permit applications were made, the new houses would be disregarded notwithstanding the severity of the restriction applicable under the wind energy facility provisions.[77]

80 The plaintiffs submitted to the Tribunal that unlike wind energy farms, where the Scheme expressly deals with existing dwellings and excludes post application constructions, the failure to do so in the case of broiler farms suggests that the contrary is intended. The Tribunal responded:

In relation to such facilities there is an express veto available to the owner of an existing dwelling. There is no such express veto in the broiler Code to be invoked by failure to give consent or by building and occupying a new house. Is such a veto to be implied?

The wind energy facility provisions specifically refer only to existing dwellings and exclude post application constructions. It has been argued that, where the point is specifically dealt with in relation to wind energy facilities, the absence of such specific provisions in relation to broiler farms means that post application constructions are to be taken into consideration. The argument is that the planning scheme would say so, as with wind energy facilities, if the contrary was intended.

This argument is an application of the rule of statutory interpretation known to lawyers by the Latin expression expressio unius persone vel rei, est exclusion alterius. It means that the express mention of one person or thing is the exclusion of another. It has been said to be a valuable servant but a dangerous master in the construction of statutory provisions or documents.

It would, I think, be dangerous to summarily conclude that those drafting the broiler Code had it in mind, deliberately contemplated and authorised a veto of the sort argued for by the Forbes group on the basis of the new houses.

Indeed a reverse application of the expressio unius approach would to say that there is no basis for reading in such a veto where none appears expressly.

It is not, I think, so clear and straightforward as the Forbes group would have me decide. It is by no means clear cut and obviously correct that the broiler farms have become prohibited in the way that a brothel is clearly prohibited if in a General Residential Zone.[78]

81 Turning to the objectives of planning found in s 4 of the PE Act, the Tribunal said:

Accordingly orderly planning is looked for which balances various potentially competing considerations. These objectives of fair and orderly planning have expression through the various planning schemes including documents incorporated in them such as the Code. In seeking to understand the purposes and objectives of the provisions in the planning scheme and Code relating to broiler farms it is relevant to look to the particular provisions but to read them in the context of the legislation as a whole. This is with a view to interpreting the legislation giving preference to a construction that promotes such purposes and objectives.[79]

82 The Tribunal then analysed and discussed cl 52.31 of the Scheme and the Code. It observed:

Taken together the requirements of the clause and the Code in relation to permit applications are elaborate and extensive. It is obvious that such applications with such demanding requirements are very important. I suppose that this is because they are the basis upon which the proposal is to be assessed. Other things, including objections, will also need careful consideration, but applications and their requirements are the basis. I take this to be the reason they are so substantial and demanding. I doubt that it is intended that all this establishing of the basis of the decision to be made can be overturned at the last minute, not by an amendment to the proposal, but by a transforming intervention of another party.[80]

83 Referring to the need under the Code to provide a separation distance between the broiler sheds and sensitive uses, the Tribunal said:

Bearing in mind that the purposes of the Code include advice and guidance in relation to the planning of new broiler sheds and as to preparing and pursuing the necessary planning permit applications, I take 'existing' in that quotation to mean existing when such planning and preparation is underway up to lodgement of permit applications. Exist means the past and present up to that point. The future in relation to potential sensitive uses is a separate matter. However, as will appear, it is a separate matter dealt with in the Code.[81]

84 The Tribunal then reviewed the standards and approved measures of the Code, relating to the erection of new houses on the Forbes and Smith lands, concluding:

All this, so far as presently available evidence indicates, offers plenty of opportunities for the new houses on the Forbes and Smith lands outside and probably well beyond the proposed separation distances. In the absence of adequate explanation the sites chosen might be thought to be perverse in the circumstances, unless inspired by the forensic consideration of attempting to impose prohibition on the broiler farm proposals. After all, the Forbes group knew, or certainly should have known, of the proposals, and indeed the previous proposals, for broiler farms on the review site. It is obvious that the broiler farm proposals when devised and applied for had no difficulties in relation to their separation distances and, it appears, the new houses, could readily have avoided the separation areas. The submission made on behalf of the Forbes group that the proposed broiler farms will 'stifle' development of their land is an exaggeration where they have plenty of room for further development and where the Code protects such opportunities. The Code strikes a balance between the development opportunities for broiler farms and development opportunities on adjoining land. It is not apparent that the Code contemplates its balance being overturned as would be the case if the submission is correct that the broiler farm proposals have become prohibited by the introduction of the new houses.[82]

85 The Tribunal then turned to the extensive provisions in the Code for broiler farm proposals, noting the demanding information and documentation requirements for permit applications:

The Code requirements mean that the planning preparation and assembling of the documentation required for a broiler farm proposal is vastly greater, more extensive and more detailed than almost any other planning permit application. Part 9 of the Code deals with many details and notes that a planning application must clearly demonstrate compliance with the Code. It is not useful, for present purposes, to go through the detail relating to the seven items in that section. However, the fourth item requires that a permit application for a broiler farm must include a completed '"Planning permit application check list" and a "Broiler farm proposal summary".'...

Detailed information is required in relation to existing sensitive uses, that is to say, existing at the time of the permit application. It also refers to planned sensitive uses, that is, planned at the time of the application. There is further reference to potential future sensitive uses, but again that necessarily must be as at the time of the application. Of course, because of 'potential' and 'future' this third category of concern cannot be specifically itemised but it is accommodated by the 50 per cent rule of approved measure E1 M5.1 as expanded by approved measure E1 M5.3. There is a need for the application material to demonstrate that the future development potential of nearby land for sensitive uses accords with those safeguards. Again, this is at the time of the application. A proposal that would involve a separation distance that covered all, or more than 50 per cent of adjoining land, or which involved less than 50 per cent but did not leave an E1 M5.2 building envelope would certainly be in difficulties.

If all this information is required for the purpose of an assessment of the proposal it must necessarily be as at the time of the application. It is required for that purpose and the scheme of these elaborate provisions may be argued to be rendered useless, or ineffective if post application intrusions can veto the proposal.[83]

86 In relation to the Code's provisions relating to future sensitive use developments, the Tribunal commented:

It might be significant that the Code, including the E1 M5.1 and E1 M5.2 approved measures make such carefully considered provision for the preservation of future sensitive use developments as at the time of the application and for the future. Those provisions do not protect or contemplate last minute structures encroaching deep into separation distances. The scheme of the elaborate Code makes it clear as to what is to be considered and what information will be required for the proper assessment of those things, and that they do not include structures like the Forbes and Smith houses.[84]

87 Referring to relevant cases, including cases concerning broiler farms, wind energy and quarries, the Tribunal noted:

...the tactic of claiming an intention to establish a house embarrassingly close to such a proposal, with or without the apparent collaboration of planning permission or building control permission, has become something of an 'old chestnut' when it comes to forensic tactics intended to frustrate or veto such developments... such tactics have been generally unsuccessful. [85]

88 The Tribunal was unaware of any case where such tactics had succeeded. Each case, save for one, involved assertions of intent, whether or not supported by permits, building approvals or other supports, where no structures had actually been erected.[86]

89 The Tribunal quoted extensively from an earlier Tribunal decision made under the 2001 broiler farm code.[87] In Buttigieg v Melton SC,[88] Morris J considered a similar case where a building permit to construct a dwelling on a site was obtained as a device to thwart a proposed broiler farm:

It also seems to me that whether or not a dwelling is likely at a particular site ought to be determined on the basis of what is likely to occur if the proposed broiler farm was not in contemplation. The scheme of the code is not that a broiler farm can be thwarted by a neighbouring or nearby landowner deciding to erect a dwelling in a particular location on the basis that such a dwelling would prevent a permit being granted for the broiler farm. Justice normally turns its back upon boot straps arguments; and if a person could thwart a broiler farm application by proposing to erect a dwelling in the most unlikely location this would be contrary to the intent of the code.[89]

90 The Tribunal then held that the purpose of the Code, taken as a whole, required a decision regarding the separation distances to be made at the time when the application was made:

I think that the scheme of the Code, taken as a whole, contemplates a decision made on the basis of what existed, at least as far as houses within separation distances are concerned, at the time the application was made. In that context the protections of adjoining land holders and their opportunities to develop are provided for in Approved measures E1 M5.1 and E1 M5.2. Does the scheme of the Code, including its elaborate provisions as to applications, really intend that it should only apply, subject to somebody else being able to change the whole basis of the application? Can the whole basis of the proposed assessment be set at nought by the last minute introduction of a house structure? Is there really a little window of veto opportunity intended to be made available to the owners of neighbouring land? If nothing is erected and occupied before a decision is made on the broiler farm application it has become too late to stop it. The adjoining owner is likely to be limited to building beyond the separation distance if planning permission for the house is required. He or she may be able to build within the separation 'as of right' if no permit is required but as a volunteer with no right of veto. Is there really intended to be a veto window between application and determination that would not exist before or after those events? That would mean that an objector could await a determination by the responsible authority and then, if it was to grant, apply under s 82 PE Act for a review and then whip in a veto by locating a moveable house within the separation distance.[90]

91 As to the first defendant's suggestion that the new houses are a 'sham', the Tribunal decided that it was not appropriate to make a finding to that effect in an interim determination. This would require a hearing of all of the evidence. Questions of fact were matters for the whole Tribunal as constituted to hear the cases, and not for the lawyer member alone while only determining matters of law.[91]

92 As to the issue of whether the recently constructed dwellings on the Forbes and Smith land were to be taken into account, the Tribunal concluded:

...a correct interpretation of the legislation, and the one that accords with its purposes and objectives, is that the Forbes and Smith houses are to be disregarded. Having considered sections 1 and 4 of the PE Act, the broiler farm provisions of the planning scheme in clause 52.31 and the relevant provisions of the Code, I consider that there is an elaborate scheme of subordinate legislation intended to realise the objectives of the Act including the fair and orderly use and development of land in relation to broiler farms which contains an elaborate consideration and balancing of the interests of the community in relation to the establishment of new broiler farms and the protection of the interests and development rights of the owners of adjoining land. This elaborate scheme relates to the planning of broiler farm proposals and the preparation of substantial and detailed documentation to support broiler farm permit applications ... A sensitive use within such a separation distance may not prohibit the land from being used for a broiler farm of some sort, but it will prohibit the actual proposal applied for.

...

The broiler farm provisions deal with various sensitive uses including dwellings. These particular provisions do not apply to other sensitive uses. I am referring to those provisions relating to the preservation of rights of nearby landowners to construct and use a house on nearby land where at least half of the holding has to be beyond a Class B farm separation distance and that area must also be suitable as a site for a house. This preservation, in my opinion, indicates that the Code contemplates that subsequent houses, if the broiler farm permit is granted, will be located in that preserved area. Such owners are protected to the extent of having house site options preserved beyond any separation distance. If the neighbour builds within the separation distance it will be at the neighbour's risk, the neighbour being a volunteer to accept the broiler farm in those circumstances. I think the Code similarly provides that where a Class B broiler farm application is made, until the application is determined, neighbouring houses should be similarly located in the protected areas beyond the separation distance. At least that opportunity is preserved for such a house on such a site. These provisions seem to me to contemplate that the neighbour who insists on building within the separation distance during that period will be in the similar position as a volunteer and that such a house is not to be taken into consideration against the application when it is considered nor as a prohibition on the application.

This situation is particular to houses, not other sensitive uses. [92]

93 The result was, in the Tribunal's view, that a house constructed within the separation distance of a proposed broiler farm, after the broiler farm application is made, but before the application is determined, should not be taken into consideration against the application when it is considered, nor as a prohibition on the application.[93]

94 The Tribunal held that the presence of the recently constructed structures on the Forbes and Smith land should not be taken into account in assessing the surrounding sensitive uses and separation distances for the proposed boiler farms.[94] As to the issue of whether the classification and assessment of broiler farms should be undertaken as at the date of the application, the Tribunal noted that it would be too sweeping to simply state that the relevant time is always fixed at, and limited to, the day on which the permit applications were lodged with the responsible authority.[95]

95 The Tribunal accepted that there may be changes to zoning or to the scheme after a broiler farm application is submitted that will need to be taken into account under the law as stated in Ungar v City of Malvern.[96] The Tribunal considered that there could also be changes of fact that may need to be taken into consideration, such as natural disasters, or 'acts of God', or other changes wrought by humans.[97]

96 However, the Tribunal concluded in the case before it that:

[T]o take account of these houses in these circumstances as prohibiting factors would be contrary to the scheme of the subordinate legislation and would destroy the balance such legislation establishes. I mean the scheme of the legislation considered as a whole and particularly in relation to the elaborate application provisions and the provisions it contains in relation to protection of development rights on adjoining properties. I consider that the scheme of the legislation intends that a legitimate proposal of this sort should be assessed and determined on its planning merits and either granted or refused accordingly. The legislation does not explicitly provide for a veto of the sort argued for. It should not, in my view, be interpreted as providing for one. I therefore conclude that the new Forbes and Smith house structures do not have the effect of legally prohibiting these broiler farm proposals.[98]

97 As a result, the Tribunal answered the two questions posed in the proceeding[99] as follows:

Are the presence of the recently constructed structures on the Forbes and Smith land to be taken into account in assessing sensitive uses and separation distances for the three proposed 400,000 bird broiler farms being applied for?

Answer: No.

Is the relevant time for the consideration of classification and assessment of the broiler farms fixed at and limited to the day on which the permit applications were lodged with the responsible authority?

Answer: Yes in relation to the classification of broiler farms and yes in relation to new dwellings established within the proposal separation distances in relation to proposed change to broiler farms after the making of the present application but otherwise not necessarily.[100]

98 The result was that the erection of the two prefabricated dwellings on the Forbes and Smith land did not result in the reclassification of two of the proposed broiler farms from Class B to Special Class Broiler Farms. The applications for review to the Tribunal could proceed to a full merits hearing on the basis that there were three applications for Class B Broiler Farms.

99 Like the interim determination, the final determination was very extensive.

100 As to separation distances, the Tribunal noted from the officer's report that the nearest house beyond the boundary of the proposed broiler farms was at a distance of 1200m.[101] The submissions on behalf of the first defendant estimated that eight houses are at distances between 1332m and 2289m from the farms, save for one house that is 1048m from Farm 3.[102]

The Code is a lengthy and complex document... It has been devised, revised and written to serve a number of practical purposes as well as being a piece of subordinate legislation under the planning scheme and ultimately under the PE Act. It is also intended to be a practical guide in relation to such complex tasks as selecting suitable sites for broiler farms, applying for planning permission for their establishment and their use and operation to achieve a suitable balance between facilitating the establishment and operation of broiler farms on the one hand and orderly and proper planning together with protection of the environment on the other.

The devising and revising of the Code has been the responsibility of a committee including people representing the industry and other stakeholders, state and local government and government organisations. It takes advantage of the experience of such participants and their officers in dealing with broiler farms, their potential and actual problems, and complaints and investigations of alleged amenity detriments including odour, dust and other issues.

It is not written in a style commonly employed in statutory drafting and some problems have arisen in other cases, and these cases, in interpreting and applying some of its provisions. Its several purposes and several audiences, need to be borne in mind in interpreting and applying it. An overly technical application of the rules of statutory interpretation used by lawyers needs to be employed with some caution. Ordinary English words and expressions likely to be familiar to and understood by the wider audience of the Code need to be understood in that context.[103]

102 The Tribunal then made detailed findings as to the objectives, standards and approved measures relating to the six elements of the Code. It also made findings as to each of the grounds of refusal, and the grounds raised by objectors. It is only necessary here to refer to its findings relevant to the grounds of appeal.

103 The Tribunal heard expert evidence from air quality experts, ultimately finding that the prevailing meteorological conditions and topographical features did not warrant any variation to the separation distance calculated in accordance with Formula 1 in the Code.[104] As a result, the Tribunal found that the 686m minimum separation distance was applicable.[105]

104 The Tribunal dealt at some length with Standard E1 S5: 'Future use and development of neighbouring land'.[106] A new question raised by the plaintiffs concerned the proper interpretation of the word 'property' appearing in the E1 S5 standard.[107] Does the phrase 'a property' in the context of the Code mean an adjoining farm or estate, or does it simply mean 'a lot'?

Many English words have more than one meaning and more than one definition. It is frequently necessary to consider the context to determine which of several possible meanings is intended in a particular instance. It is frequently necessary to read a document like the Code as a whole to discern what a particular word or expression means in relation to a particular usage. We will consider the meanings contended for after referring further the terms of the standard and the approved measures under it.[108]

106 The Tribunal summarised the plaintiffs' submissions on this point:

The objectors argued that 'property' here does not mean the whole of an adjoining farm if that farm is made up of a number of separate lots whether on one title or more than one title. It was argued that each individual lot is to be considered as a separate 'property', and that, to satisfy the approved measure, not more than 50% of any lot can be encompassed with the minimum separation distance.

...

The objectors argued that, if 'property' in the context of the measure means 'lot' as opposed to the whole of a neighbouring farm, then this 50% rule is not satisfied. There are a number of farms which, in ordinary parlance, might be referred to as 'Mr Blogg's farm' or 'Mr Blogg's property' or 'Mr Blogg's farming property', but which are comprised of a number of lots. Some of these lots are small so that, considering the lots individually, some of them will be encompassed as more than 50% of their area by the separation distance of one or other of the broiler farms. It appears, from the cadastral information provided, that some small allotments near the proposed broiler farms, though being part of larger farm properties, would be covered to 100% of their area. On the basis that it is said that each such lot constitutes a separate 'property'; each of them will, it is argued, have its development 'rights' curtailed.[109]

107 The Tribunal noted that a proliferation of rural houses used for residential purposes, and not being ancillary to the conduct of a farm is contrary to proper and orderly rural planning. This had been recognised for decades as contrary to the purposes of the Farming Zone.[110]

108 After reviewing the provisions of the Scheme relating to agricultural use, the Tribunal held:

The question of likely future land use as it pertains to a dwelling does not turn on whether or not there is a legal right to do it, or whether a planning permit or other permission would be required for such a series of houses. It is unlikely, to say the least, that such a series of houses would be required for farming purposes given the history of, and continued operation of broad acre farming and large properties necessary for it, quite apart from being contrary to proper and orderly planning.[111]

109 As to the meaning of the word 'property', the Tribunal said:

If the writers of the Code had intended lots rather than what we say 'property' means, then they could and should have said so. The word 'lot' is not so obscure as 'tenement'. Indeed, it appears in the Code where that is the appropriate word and meaning intended. It appears in Part 11 relating to strategic and land use planning considerations under the sub-heading 'Design considerations for subdivisions near broiler farms'. The particular sentence reads:

In cases where the subdivision is permitted, the responsible authority should require the lot layout and/or building envelopes to be designed in such a way that no dwelling is within the required separation distance or within the area identified as being at risk of being adversely impacted by broiler farm emissions.

The use of the word 'lot' in that context is entirely appropriate where 'property' would fail to convey the required meaning. Even without this reference we consider that the appropriate interpretation of 'property', in this context and in the Code as a whole, is meant to mean the entire property or holding, whether or not divided into lots. It does not appear to us to suit the intended meaning to interpret 'property' in this context as 'lot'. Noticing this other Code usage of the term 'lot', suitable in its context, and as distinct from property, merely tends to confirm the interpretation we would have come to in any event.[112]

That is not to suggest that the objectors' advocate was guilty of exotic legalism in putting forward the argument that 'property' in this context is to be equated with 'lot'. That interpretation is arguable and open on the literal meaning of the words. However, from a literal point of view, so is the contrary interpretation that 'property' here is to be equated with property in its ordinary and lay meaning (conveniently encapsulated in the planning scheme definition of tenement). It is when read in its context, as part of the Code, and bearing in mind the purposes of the Code and its several lay audiences that we are led to the latter interpretation. We consider that this interpretation better accords with the intention of the Code and what its writers intended, as well as ordinary English usage and commonsense.

We note that in Fraser v Cardinia SC[113] ... the Tribunal did not take the narrow 'property' equals 'lot' was of the view when it said:

We note that the Broiler Code refers to separation distances and buffers in terms of property boundaries rather than individual lot boundaries.[114]

Reading that word in its context, and in the context of the Code as a whole, there can be little doubt that what is meant is not individual lots, but individual properties, whether constituted by one or multiple adjoining lots in the same ownership. The Forbes property, for example, means the whole of the Forbes farming property including all of its adjoining allotments in the same ownership, and not each of those allotments considered separately and individually.[115]

111 Accordingly, the Tribunal held that Approved Measures E1 M5.1 and E1 M5.2, relating to Standard E1 S5, were satisfied as applying to surrounding privately held land.[116]

112 The final relevant issue concerning the expression 'a property' related to three small areas of Crown land. Two were on the south side of the Baringhup-West Road and surrounded by farmland. The two areas were not fenced off from the surrounding land and were used for farming in association with that land. One of these areas fell within the separation distance of Farm 1. The other area was beyond the separation distance of any of the three proposed broiler farms.[117]

113 The third area is the area of 4,030m2 of Crown land, being the old Baringhup-West State School ('the former school site'), on the north side of the Baringhup-West Road, being Crown Allotment 3BE, Section 3, Parish of Eddington. It is within the separation distance of proposed Farm 1.

114 As to the Crown properties in relation to Standard E1 S5, the Tribunal noted that the relevant government department responsible for the management of the land had been made aware of the proposal and raised no concern. It is unlikely that the Crown land within the separation distance will be used for a dwelling. Such a use of the land in the normal circumstance is contrary to orderly and proper planning. The Tribunal concluded: 'Having regard to our findings as to likelihood (which are, after all, questions of fact) we do not think that the proposal for Farm 1 contravenes [S]tandard E1 S5.'[118]

115 Having made these findings, the Tribunal concluded that the standards and objectives relating to Element E1 were satisfied and presented no barrier to the permits sought.[119]

116 Accordingly, the Tribunal directed the responsible authority to issue permits in each of the three broiler farm applications subject to extensive conditions.

Grounds 1-3 - the significance of the erection of dwellings on land owned by the plaintiffs

117 I now turn to the proposed grounds of appeal sought to be relied on by the plaintiffs.

118 The plaintiffs submit to the Court that the relevant time for the determination of facts, including the determination of the separation distance and the resulting classification of the applications, was the date of the Tribunal's decision, and that the Tribunal erred in law when it decided otherwise.

119 It was not disputed by the plaintiffs that the location of removable dwellings on sites within the separation distance occurred at a very late stage in the Tribunal proceedings and shortly before the final Tribunal hearing was to commence. By this time, the following steps had already been completed:

(1) the permit applications had been lodged with the responsible authority;

(2) public notice of the applications had been given to the owners and occupiers of nearby land including the plaintiffs;

(3) objections had been lodged with the responsible authority;

(4) the council officer's report had been completed and considered by the council;

(5) the council had decided to refuse the applications;

(6) notice of the refusals had been given by the responsible authority to the applicant, objectors and authorities;

(7) the permit applicant had lodged applications for review with the Tribunal;

(8) statements of grounds had been lodged by the objectors and other persons;

(10) evidence had been exchanged between the parties.

120 The starting point in considering grounds 1-3 is the well-known decision of the High Court of Australia in Shi v Migration Agents Registration Authority ('Shi').[120] This decision relevantly concerned whether the Administrative Appeals Tribunal ('AAT'), in reviewing a decision of the Migration Agents Registration Authority, was limited to the facts and circumstances that existed at the time of the decision, or whether the Tribunal was obliged to consider the facts and circumstances as they existed at the time of its own decision.[121]

121 Kirby J held that the question was to be resolved by giving close attention to the provisions of the enabling legislation:[122]

... To resolve the question of whether the Tribunal has exceeded or mistaken its jurisdiction and powers a court must give close attention to the enabling legislation. It is undesirable to attempt universal or unqualified propositions. Here, the issue is how to define the jurisdiction and powers of the Tribunal in conducting a review of a decision of the Authority, having regard both to the general provisions of the AAT Act, affording the power of review, and to the more specific provisions of the Migration Act, defining the characteristics of the decision that is subject to review. Only when all of the relevant features of the two inter-related statutes are understood can a correct decision be arrived at as to the ambit of the review in question and the manner in which it should be conducted.[123]

Once it is accepted that the Tribunal is not confined to the record before the primary decision-maker, it follows that, unless there is some statutory basis for confining that further material to such as would bear upon circumstances as they existed at the time of the initial decision, the material before the Tribunal will include information about conduct and events that occurred after the decision under review. If there is any such statutory limitation, it would be found in the legislation which empowered the primary decision-maker to act; there is nothing in the AAT Act which would provide such a limitation.[124]

In considering what is the right decision, the Tribunal must address the same question as the original decision-maker was required to address. Identifying the question raised by the statute for decision will usually determine the facts which may be taken into account in connection with the decision. The issue is then one of relevance, determined by reference to the elements in the question, or questions, necessary to be addressed in reaching a decision. It is not to be confused with the Tribunal's general procedural powers to obtain evidence. The issue is whether evidence, so obtained, may be taken into account with respect to the specific decision which is the subject of review.

Where the decision to be made contains no temporal element, evidence of matters occurring after the original decision may be taken into account by the Tribunal in the process of informing itself. Cases which state that the Tribunal is not limited to the evidence before the original decision-maker, or available to that person, are to be understood in this light. It is otherwise where the review to be conducted by the Tribunal is limited to deciding the question by reference to a particular point in time.[125]

124 In Victoria Legal Aid v Kuek,[126] the Court of Appeal considered the position of an independent reviewer acting under ss 34 and 35 of the Legal Aid Act 1978 (Vic), relating to the provision of legal aid. Buchanan JA, with whom Weinberg JA and Ross AJA agreed, said:

The independent reviewer was not assigned to review decisions according to the principles applicable to judicial review. The independent reviewer is an instrument of government administration and presumably is to act when decisions appear not to be acceptable when tested against the requirement of good government. When making decisions, administrative decision makers are generally required to have regard to the best and most current information available. That surely applies to [Victoria Legal Aid]. It would be surprising if the substituted decision did not have to conform to that standard. In Minister for Aboriginal Affairs v Peko-Wallsend Ltd,[127] Mason J said:

It would be a strange result indeed to hold that the Minister is entitled to ignore material of which he had actual constructive knowledge and which may have direct bearing on the justice of making the land grant, and to proceed instead on the basis of material that may be incomplete, inaccurate or misleading. In one sense this conclusion may be seen as an application of the general principle that an administrative decision maker is required to make his decision on the basis of material available to him at the time the decision was made. That that principle is itself a reflection of the fact that it may be found in the subject matter, scope and purpose of nearly every statute conferring power to make an administrative decision an implication that the decision is to be made on the basis of the most current material available to the decision maker.[128]

...

In the present case, the nature of the decision to be made by the independent reviewer does not indicate that his attention is to be confined to the state of evidence as at a particular time. The decision contains no temporal element. In my opinion, the review will be more valuable and efficient if it is made on the basis of the most up-to-date information available to the independent reviewer.[129]

... there is a substantial body of authority to support his Honour's statement that 'when making decisions, administrative decision-makers are generally required to have regard to the best and most current information available'.[130] In addition to the cases cited by his Honour, it is well established, in relation to the Tribunal, that save for those matters involving accrued rights, it is the law in force when the Tribunal comes to review the decision that must be applied, and not the law as it stood at the time that decision was made.[131] The same is true in relation to facts. The Tribunal is obliged to take into account all relevant facts of which it is aware, even though they might not have been known to the original decision-maker.[132]

126 Referring to Pizer's Annotated VCAT Act (5th ed),[133] the plaintiffs relied on Von Hartel v Macedon Ranges Shire Council[134] where Emerton J said that it was the task of the Tribunal to 'stand in the shoes' of the original decision-maker and make the correct or preferable decision, having regard to the material before it.[135] The review should therefore be carried out on the basis of the facts and law at the time the review decision was made.[136]

127 Where an enabling enactment expressly or impliedly requires the review to be conducted by reference to the factual position at a nominated time, the position is different. In Kozanoglu v The Pharmacy Board of Australia,[137] the Court of Appeal considered the jurisdiction of a Committee under legislation relating to health practitioners. The Court held that the appeal to the Tribunal was not a rehearing de novo in the widest sense of the term. It was not permissible for the Board to adduce evidence of facts and matters that occurred after the notification had been provided to the Committee to justify, retrospectively, the decision to take immediate action. The Court of Appeal held:

Shi establishes that, ordinarily, an administrative tribunal is entitled to have regard to events which occur in the intervening time between the original decision and the review process, unless that position is altered by the terms of the decision-making power.[138]

128 The Court ultimately concluded that the appeal to the Tribunal had a hybrid character where the material to be considered was confined to that placed before the initial decision-maker, but with the opportunity available to both parties to present additional evidence which bore directly upon that decision as originally taken. As the Court said:

In our respectful opinion ... [t]he appeal to a responsible tribunal under the National Law is neither an appeal in the strict sense, nor a rehearing de novo. It is rather a hybrid, whereby the material to be considered is confined to that placed before the initial decision-maker, but with the opportunity available to both parties to present additional evidence which bears directly upon that decision as originally taken. It is not 'open slather', but nor is it an appeal confined to error.[139]

129 In the present case, the Tribunal reviewed the provisions of the Code at length, concluding that the Code required that the two relocatable dwellings placed within the separation distance had to be disregarded if the Code were to have sensible effect and operation.

130 The Code is listed as an 'incorporated document' in the Scheme.[140] The Scheme requires that a permit application to use or develop land to establish a new broiler farm must comply with the Code.[141] The purpose of cl 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.'[142] While the Code is intended to operate as an easy-to-follow guide to the public at large, and is not expressed in legal language, it is nonetheless appropriate to consider its interpretation and application having regard to well established principles of interpretation.

131 In Project Blue Sky Inc v Australian Broadcasting Authority,[143] McHugh, Gummow, Kirby and Heydon JJ said:

... the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.[144]

132 In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory),[145] Hayne, Heydon, Crennan and Kiefel JJ said:

This Court has stated on many occasions that the task of statutory interpretation must begin with a consideration of the text itself ... Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text ... The language which has actually been employed in the text of legislation is the surest guide to legislative intention ... The meaning of the text may require consideration of context, which includes the general purpose and policy of a provision ... in particular the mischief ... it is seeking to remedy. [146]

[It] must be accepted that context and legislative purpose will cast light upon the sense in which the words of the statute are to be read. Context is here used in a wide sense referable, inter alia, to the existing state of the law and the mischief which the statute was intended to remedy.[147]

134 The plaintiffs submitted that the application of the principles outlined in Shi meant that the separation distances had to be recalculated by the Tribunal, having regard to the erection of the two prefabricated dwellings. The result would be that two of the three broiler farms are no longer Class B Broiler Farms.

135 The first defendant submitted that the intent underlying the Code is that any sensitive uses that exist at the time of the application must be outside the separation distance. However, future or potential sensitive uses are taken into account when considering the design and layout of the farm under Section 7 of the Code and in evaluating the proposal on its merits. The six best practice elements in Section 7 of the Code, and planning considerations generally, were all assessed at the date of decision. While the application stood to be evaluated as against the standards, objectives and approved measures contained in Section 7 as at the date of the Tribunal's decision, this did not affect the classification of the broiler farm, which was determined having regard to the number of birds to be housed, and the calculation of separation distances at the time of the application.

136 Secondly, the first defendant submitted that there was no planned sensitive use at the time of the application and the Tribunal held that Standard E1 S5 was complied with. It is bad planning and unjust to allow expedients, such as that adopted by the plaintiffs, to change the classification and the assessment of the merits of the proposal. The Code sought to achieve a fair balance between the interests of present and future Victorians. A tactic that would prevent assessment on the merits should be resisted.

137 Finally, the first defendant submitted that the intent underlying the Code was such that if a permit applicant amended an application for a broiler farm, so as to change the classification of the broiler farm, then the application would essentially start again.

138 Having carefully reviewed the provisions of the Code, I accept the first defendant's submissions. The classification of the proposed broiler farm whether as Class A, Class B, Special Class or Farm Cluster under Section 5 of the Code takes place at the time of the application and therefore necessarily by reference to the facts as known at that time. Section 5 of the Code describes what is to be done to classify a proposed broiler farm. If the farm capacity is less than or equal to 400,000 birds, and the minimum separation distance requirement is fully within the broiler farm boundary, the proposed farm will be a Class A Broiler Farm. A Class B Broiler Farm, where the separation distance cannot be contained wholly within the farm boundary, is of a wholly different character to a Special Class or a Farm Cluster Broiler Farm. A change of classification from a Class B to a Special Class Broiler Farm effects a transformation of the documentary and processing requirements of the application. As I have said, an Odour ERA must be completed. Notice to, and consultation with, the EPA must also be undertaken.

(1) the measurement of the separation distance and classification of the broiler farm under Section 5, by reference to the facts existing as at the date of the application;

(2) the determination of all other factual matters (including the application of the form design and operation elements under Section 7, and all other Code and planning considerations) by reference to the facts as known at the date of the decision; and

(3) the determination of the law applying to the application as at the date of the decision.

140 I am of the opinion that this is the correct interpretation and intended effect of the Code for the following reasons:

(1) The application process is described in Section 10 of the Code. It consists of five stages. Farm classification is part of 'Stage 1: Site selection, farm classification and consultation'. This is the first and earliest stage of the application process. The second stage concerns the preparation and lodgement of a planning permit application. The whole planning process is predicated on the classification resulting from the first stage.[148]

(2) Section 10 of the Code is concerned with classification and the application process and expressly provides that '[t]he applicant must determine whether the proposed development is a Class A, Class B, Special Class or Farm Cluster.'[149] This does not mean that a decision by the applicant as to the classification of the proposed broiler farm cannot be reviewed by the responsible authority or the Tribunal; but it does suggest that the date of the application is the relevant time for the determination of the classification.

(3) The classification ascribed to a proposed broiler farm governs the documentation to then be prepared by the applicant, the need for an Odour ERA to be undertaken, and the need to consult with, and notify, the EPA. It is crucial for the responsible authority, the applicant and the EPA to know whether an Odour ERA is required to be prepared. This is made doubly clear by Figure 3: 'Illustration of Planning Application Process' in the Code.[150] It is the broiler farm classification that dictates the documentation, notification and review process relating to the permit application. It is essential that the classification be determined at an early stage.

(4) If the date for the determination of the classification of the broiler farm were to be the date of the decision, a significant mischief and inconvenience would arise. The location of a prefabricated dwelling, or the commencement of a sensitive use within the separation distance would upset the previous classification of a proposed broiler farm. This might occur even as late as the day before the Tribunal decision is published. The result is the transformation of the application. It is a 'back to the drawing board' situation with an Odour ERA having to be prepared and the EPA notified. The responsible authority and all parties would have to start afresh in addressing the application. The application would have to be readvertised to authorities and interested parties alike. The previous deliberations of the responsible authority would be superseded by the classification change. There would be significant delays, confusion and very substantial additional costs to the applicant and other parties.

(5) The Code provides that notice of an application for a Special Class or Farm Cluster broiler farm should be given to the EPA as soon as the permit application is received, so that the EPA can provide its response and enable the responsible authority to require any information early in the application process. Again, this suggests that classification occurs at the time of the application not the decision.[151]

(6) The object of the planning process is to determine whether there is a net community benefit arising from an application, having regard to all relevant planning considerations and legal requirements. It is most undesirable that the planning process be exposed to dislocation by unmeritorious tactical devices or contrivances intended to stymie the opposing party's case. Rather, the planning process seeks to ensure that all interested parties have a proper opportunity to be heard about an application and then for the decision maker to fairly and rationally determine the application based on the considerations described in the relevant planning scheme and any applicable codes. It is important for delays and costs to be kept to a minimum.

(7) The planning process aims 'to balance the present and future interests of all Victorians'.[152] The construction of the Code that I accept would provide for fairness and a reasonable balance between the respective interests of all concerned.

(8) In Section 11 of the Code, titled 'Strategic and Land Use Planning Considerations',[153] the responsible authority is advised to discourage the location of dwellings close to broiler farms. It advises that steps should be taken to minimise impacts, for example, by resiting proposed dwellings or through the use of visual screening. It is consistent with this advice that establishing dwellings within separation distances should not be encouraged after an application has been made but before the final decision has been made, whether by the responsible authority or the Tribunal.

141 While the construction I have adopted recognises the need for the application to be classified at the date of the application, it also responds to the law and the principles stated in Shi[154] and other cases. All other matters are determined at the date of the decision. This permits all of the circumstances operative as at the date of decision to be considered in evaluating the planning merits, including any new uses, developments, or changes that have occurred since the application was first submitted. The objective of Element 1 is to minimise the risk of adverse amenity impacts on nearby existing, planned and potential future sensitive uses. Standards E1 S1 (amenity protection) and E1 S5 (future use and development of neighbouring land) both operate consistently and appropriately as at the date of the decision, on the basis that the farm classification was determined on the facts and circumstances existing at the date of the application.

142 Classification of the proposed broiler farm as at the date of the application does not limit or restrict the review process. In the event that a nearby sensitive use is overlooked by a permit applicant in calculating the separation distance, or the separation distance is wrongly scaled or calculated, it is open and appropriate for the responsible authority or the Tribunal to accurately determine the separation distance, or correct a mistaken measurement. Review by the Tribunal of the classification of a broiler farm would occur having regard to the facts existing at the date of the application. Again, the construction that I have adopted operates harmoniously. In the event that a permit applicant amends an application so as to affect the classification of a proposed broiler farm, the relevant date for the determination of the classification of the proposed broiler farm, and the separation distance, will be the date of the amended application.

143 The possibility of a change of position by a permit applicant in relation to a broiler farm application is illustrated in Drew v Baw Baw Shire Council.[155] In that case, a broiler farm application housing 110,000 birds was classified under the 2001 Code as a Class B Broiler Farm. At a later time, the permit applicant decided to reduce the proposed development and the total number of birds to be housed, so as not to exceed 80,000, with the result that the broiler farm became a Class A Broiler Farm. This avoided the need to provide third parties with an opportunity to object to the application. The Tribunal found that the proposed broiler farm as reduced was classified as a Class A Broiler Farm after the change in application.[156]

144 This construction of the Code decides grounds 1-3. Ground 1 contends that the Tribunal erred in law by holding that the presence of recently constructed dwellings on the Forbes and Smith land is not to be taken into account in assessing separation distances from sensitive uses for two of the proposed broiler farms. For the reasons that I have given, the Tribunal was correct when it held that the classification of the proposed broiler farms and the calculation and assessment of separation distances for sensitive uses is determined by reference to the facts as at the date of the application.

145 Ground 2 is similar to ground 1. As I have said, the relevant time for assessing the separation distances for the proposed broiler farms, and determining their classification, is the day that the permit applications were lodged with the responsible authority.

146 Ground 3 contends that two of the three proposed broiler farms do not meet the separation distance requirements defined by Formula 1 of the Code. The Tribunal found the reverse, namely that all proposed broiler farms met the separation distance requirements.[157] The measurement of separation distances is a matter of fact for the Tribunal. Given that the two prefabricated dwellings are not taken into account in calculating the separation distance as at the date of the application, there is no reason to doubt the correctness of the Tribunal's decision.

147 Although grounds 1-3 fail, it is desirable, in the interest of clarity for future broiler farm applications, that I highlight that there are two minor respects in which I differ from the reasons of the Tribunal in respect of the construction of the Code. The first is that the Tribunal considered that the determination of separation distance as at the date of the application, applied only to houses and not to other sensitive uses. In my view, the nature of the sensitive use is not material. Farm classification and the determination of the separation distance under Section 5 both take place at the time of application. Classification is not dependent on the precise nature of the sensitive use.

148 This difference in the interpretation of the Code as it applies to non-housing sensitive uses is immaterial on the facts of the present case. There were no relevant non-housing sensitive uses and the issue is not raised in any ground of appeal.

149 The second difference in construction relates to whether the Tribunal can take into consideration the existence of the two prefabricated dwellings when considering provisions other than Section 5 of the Code. In my view, the Tribunal can take the existence of the two prefabricated dwellings into consideration for all purposes other than farm classification and determination of separation distance under Section 5. The best practice elements found in Section 7 are separate from, and additional to, the determination of farm classification and separation distance. Having regard to the Tribunal's conclusions that if a neighbour 'builds within a separation distance it will be at the neighbour's risk, the neighbour being a volunteer to accept the broiler farm in those circumstances'[158] and that 'until the application is determined, neighbouring houses should similarly be located in the protected areas beyond the separation distance'[159] and its view of the merits of the applications, and lack of merits of the objections, this does not affect the Tribunal's findings.[160] Again the difference between the interpretation that I have adopted and that adopted by the Tribunal is immaterial in these circumstances, and there is no vitiating error.

Grounds 4-5 - the meaning of the expression 'a property' found in Approved Measures E1 M5.1 and E1 M5.2 of the Code

150 The plaintiffs contend that the expression 'a property' as used in Approved Measures E1 M5.1 and E1 M5.2 of the Code does not mean the whole of an adjoining farm or property but rather means an individual lot. They advance a number of arguments to support this construction:

(1) The expression 'property' is not defined in the Code, the Scheme, the PE Act, the Interpretation of Legislation Act 1984 (Vic), or the Property Law Act 1958 (Vic).[161]

(2) The word 'property' is a protean term, and may describe land, a thing, or a bundle of legal rights to land or a thing. The legal meaning of the word tends to cleave very closely to the context in which it is used.[162] The word 'property' is used in many places in the Code and should be given a consistent interpretation.[163]

(3) The rationale for Approved Measures E1 M5.1 and E1 M5.2 is to ensure that existing sensitive uses are not adversely impacted by emissions. The setback requirements ensure that strategic planning is not compromised by the establishment of broiler farms and that broiler farm operations are safeguarded from any future encroachment of sensitive uses.[164]

(4) The Scheme is a more precisely drafted document than the Code. It uses the terms 'lot' and 'tenement'. A 'lot' is the basic land unit of planning. Under cl 35.07, a dwelling is an as of right use in the Farming Zone by reference to the size and existing use and development of the relevant 'lot'. If many lots are owned each less than 40ha in area, but together exceeding 40ha, the lots must be consolidated before land in the Farming Zone can be used and developed for the purpose of a dwelling.[165]

(5) The protection of the amenity of future residents of land near a broiler farm is directly relevant to the language and purpose of Approved Measures E1 M5.1 and E1 M5.2, as is the right of the owner of land to subdivide that land.[166]

(6) There is nothing technical or obscure about the desired construction. It is straightforward and may readily be understood.[167]

(7) The former school site is Crown land within the notional minimum separation distance of proposed Farm 1. It meets the definition of 'property' with the result that Farm 1 does not meet Approved Measure E1 M5.1.[168]

151 I accept the first six submissions made on behalf of the plaintiffs but not the final submission.

152 The first defendant submits, and I accept that:

(1) Approved Measures E1 M5.1 and E1 M5.2 are read together. The purpose of these measures is to ensure that there is a reasonable opportunity to develop adjoining vacant land in a Farming Zone, Rural Activity Zone, or Green Wedge Zone. This is achieved by:

(a) requiring the separation distance to cover not more than 50% of the area of a property located beyond the broiler farm property boundary; and

(b) requiring 50% to be available for the construction of a dwelling and provide a 20m x 30m building envelope.[169]

(2) Standard E1 S5 refers to 'the existing and likely future use and development of land'. As the Tribunal held, the proliferation of dwellings in farming zones is contrary to orderly and proper planning.[170]

(3) The word 'property' should be given its ordinary and natural English meaning in a farming context. There is no basis for reading the word 'property' down to mean 'lot'.[171]

(4) The ordinary and natural meaning of the word 'property' as defined by the Oxford Australian National Dictionary is:

1. A rural land holding which is used for stock raising or crop growing.[172]

(5) When the Code referred to 'a property' in a broad acre rural context, the reference is to a landholding or to a farm and not to an individual lot that forms part of a farm. The determination of the boundaries of the adjoining properties and the percentage of the adjoining properties that is covered by the separation distance are questions of fact.[173]

153 I also note that the Macquarie Dictionary lists as meanings of the word 'property':

1. that which one owns; the possession or possessions of a particular owner.
2. goods; lands, etc., owned: a man of property.
3. a piece of land owned: property near Bondi.
4. ownership; right of possession, enjoyment, or disposal of anything, especially of something tangible: to have property in land.
5. Also, country property. a. a farm, orchard, etc. b. a large area of land used for grazing cattle or sheep...[174]

154 The third and fifth meanings support the first defendant's and the Tribunal's interpretation of the word 'property'.

155 The result is that the word 'property' as used in Approved Measures E1 M5.1 and E1 M5.2 simply means 'rural land holding' - in most instances in the Farming Zone this is 'a farm'. The word 'property' should not be read down to mean 'lot'.

156 Significantly, the zoning context in the Code in which the word 'property' is found is a broad acre farming context, where animal husbandry is a principal activity. The Code is concerned with ensuring that adjoining farm owners have the opportunity to erect dwellings within the boundaries of their farms. The Code is not concerned with the erection of dwellings on lots - rather it seeks to preserve the opportunity for farm owners and occupiers to reside on their farms.

157 As the Tribunal highlighted, the purposes of the Farming Zone include the retention of productive agricultural land and to ensure that non-agricultural uses, including dwellings, do not adversely affect the use of land for agriculture.[175] A broiler farm is an agricultural use under the category of animal husbandry.[176] Within the Farming Zone, a permit is required to subdivide land. If no area is specified in a schedule to the zone, each lot must be at least 40 ha. [177]

158 Accordingly, the Tribunal did not err when it held that the expression 'a property' is used in Approved Measures E1 M5.1 and E1 M5.2 to mean a 'rural land holding' or 'farm' and not a 'lot'. Grounds 4 and 5 fail.

Ground 6 - was the Tribunal wrong when it held that the former Baringhup West State School site is not a property?

159 Question 4 and ground 6 contend that the Tribunal erred in law in determining that the former school site was not a 'property' within the meaning of Approved Measure E1 M5.1 of the Code. The former school site is Crown land.

160 Question 4 and ground 6 are misconceived. The Tribunal did not hold that the former school site was not a property.[178] While Approved Measure E1 M5.2 might apply to the former school site, Standard E1 S5 refers to the future use and development of neighbouring land. What the Tribunal did hold was that there was no existing or likely future use of the former school site. The government department responsible for the management of the former school site had been made aware of the proposal and had raised no concern.[179]

161 The Tribunal found it unlikely in the circumstances that the former school site, or the other pieces of Crown land within the separation distance, would be used for a dwelling. This would be contrary to orderly and proper planning, including rural planning policies in relation to rural houses, for dwellings to be allowed on either.[180]

162 As the Tribunal pointed out, these issues were questions of fact. It found that the proposal for Farm 1 did not contravene Standard E1 S5.[181]

163 While the Code requires permit applicants to meet the objectives and standards of the elements of the Code, in relation to approved measures the Code states only that permit applicants 'should incorporate' approved measures in the development proposal, saying that '[d]evelopment proposals will usually meet an approved measure'.[182] Here, the Tribunal considered that it was unlikely that the former school site or the other Crown land within the separation distance would be used for a dwelling. It was open to it on the facts to reach this conclusion. It was open to it to hold that the proposal complied with the applicable standard.

164 As a result, ground 6 is without any foundation. Leave to appeal on ground 6 will be refused.

Ground 7 - should the Tribunal have characterised the proposal as one Special Class broiler farm?

165 The plaintiffs did not agitate ground 7 as a primary submission. Rather, it was put as a submission as to what the consequence would be if the plaintiffs were unsuccessful in relation to grounds 4-6. During the course of the hearing it was said that:

[The objectors] have never advocated that the three farms ought to be characterised as one farm... Rather, what happened, before the Tribunal, is that when Mr Munt was presenting the argument about the meaning of the words 'a property' in the context of the 50% principle, he made the submission to the Tribunal that if he was wrong, the consequences of him being wrong would be that the whole basis of the application would also be wrong.[183]

166 I accept the submission by the first defendant that the argument now sought to be agitated was not raised before the Tribunal for decision. Rather it was mentioned during a different argument which was advanced regarding another matter. Leave should be refused for this reason.

167 Even if leave were granted, ground 7 is misconceived and must fail. In an application for a broiler farm (as with other applications), the permit applicant must identify the land that is the subject of the application.[184] The plans lodged with the application, and later amended plans, do clearly identify the land the subject of each application. The permit application documents subsequently amended by order of the Tribunal dated 23 December 2014 separately identify the land that is the subject of each of the three applications.[185] The permits directed to be issued by the Tribunal also make plain the land that is the subject of each permit.[186] There were always three applications relating to three broiler farms as the application documentation makes clear. This was accepted by the plaintiffs during the hearing.[187]

168 There is no substance in ground 7. Leave to appeal is refused.

169 The result is that leave to appeal should be granted in relation to grounds 1-5. However, the appeal is dismissed in relation to each of these grounds. Leave to appeal is refused in relation to grounds 6 and 7.

MARK YARWOOD, MARK BRASSER, KIM BRASSER, RAIMOND GAITA, YALE GAITA, IAN ADDLEM, JASON KEATS, BRENDON CONNELLY, SHELLEY WALKER, JOE LA GRECA, SUE LA GRECA, GRANT HODGETTS, CATHY MCCALLUM, TOBY LISTON, SARAH LISTON, PETER BAKER, SHANE BAKER, MAREE BAKER, AMBER BAKER, LOUISE APPLEBY, ROB WILSON, JAROD ADLEM, KERRY ADLEM, RON SHELLIE, HEATHER SHELLIE, ROY PICKERING, LINDA PICKERING, LYNDSAY DANIEL, ABBY DANIEL, ALAN MILLAR AND NOEL BRASSER

[1] Vukadinovic v Mount Alexander SC (No 3) [2015] VCAT 1164 ('interim determination'); Vukadinovic v Mount Alexander SC (No 6) [2015] VCAT 1993 ('final determination').

[3] Vukadinovic v Mt Alexander SC (No 1) [2015] VCAT 890 [3].

[4] Victorian Civil and Administrative Tribunal Act 1998 (Vic) ('VCAT Act') s 107(1).

[7] Amended proposed notice of appeal dated 9 May 2016.

[9] Ibid 10. The grounds of appeal have been renumbered.

[10] Planning and Environment Act 1987 (Vic) ('PE Act') s 4(1).

[12] See PE Act ss 47, 51, 52-54, 57, 60-62.

[18] Ibid cl 14.01-2. Under the nesting diagrams contained in the planning scheme, the use 'broiler farm', successively forms part of 'intensive animal husbandry', 'animal husbandry' and 'agriculture'. See the Scheme cl 75.01.

[20] Clause 31.02 of the Scheme requires that a condition opposite a Section 2 use must be met.