Plaintiffs v Defendants

Plaintiffs v Defendants - [2017] VSC 20 - VSC 2017 case summary — Zoe

[17]

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]

[144]

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]

[156]

...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]

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Judgment (300 paragraphs)

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Legislation Cited (6)