Victorian Civil and Administrative Tribunal|1999-07-31

Purchase N&Y v Baw Baw SC & L Campbell & Ors [1999] VCAT 1237 (31 July 1999)

RESPONDENT(objectors): Lorraine Campbell & Others

Lot 4 on Plan of Subdivision No. 409837N, Parish of Yannathan

This review is allowed and a permit is granted for broiler sheds in accordance with the endorsed plans hereinafter provided for and subject to the following conditions:-

1. The use and development of the dwelling and sheds hereby permitted must not be commenced until three (3) copies of amended plans have been submitted to and approved by the Responsible Authority. The plans must be drawn to scale with dimensions. When approved, the plans will be endorsed and will form part of this permit. The plans must be in accordance with the submitted plans but modified to show and include:-

(a) the layout and configuration of the proposed dwelling and sheds;

(b) the specific location of all buildings and setbacks from boundaries;

(c) the location of water tanks including 10,000 litres water supply, for each group of poultry shed and the proposed dwelling, to be dedicated for fire fighting purposes with domestic supply to be provided in excess of these tanks;

(d) the location, dimensions and surface treatment of access to the site and vehicles parking and unloading areas;

(f) the location and specifications of stormwater retention dams or any other dams including lining materials, free board and outlet flow rates;

(g) extent and details of existing vegetation to be retained;

2. The layout of the site and the size of the proposed buildings and works, as shown on the approved plans must not be altered or modified without the consent in writing of the Responsible Authority.

3. Prior to the construction of any buildings or works, three (3) copies of a landscape plan prepared by a suitably qualified person for the subject site, which is to be drawn to scale, must be submitted to and be approved by the Responsible Authority. Such plan must show:

(a) the existing vegetation in areas unaffected by buildings and works;

(d) a schedule for the construction and planting out of the landscaped areas which includes plant names.

4. All trees and shrubs included in the approved landscaping plan must be planted within six (6) months of the commencement of the development hereby permitted and must thereafter be maintained in a healthy condition to the satisfaction of the Responsible Authority and any dead or diseased trees or bushes shall be replaced as soon as possible.

5. Any access road , clearings and banks resulting from excavation must be stabilised by the use of retaining walls, terracing, revegetation and other means of slope stabilisation to the satisfaction of the Responsible Authority.

6. The buildings must not be occupied and the use must not be commenced until a bond or bank guarantee to the value of $10,000.00 has been deposited with the Responsible Authority. (When all landscaping works as shown on the approved landscaping plan have been completed to the satisfaction of the Responsible Authority, the financial security is to be refunded).

7. Areas set aside for parked vehicles and access lanes as shown on the submitted plans must be:

(a) constructed to the satisfaction of the Responsible Authority;

(b) surfaced with an all weather seal coat or surfaced with crushed rock or gravel to the satisfaction of the Responsible Authority;

8. Any dams shown on the endorsed plans must be constructed to the satisfaction of Melbourne Water and the Responsible Authority, and incorporate the following features:

(a) outlet from the dam to be controlled to 3 litres/sec/hectare of catchment;

(b) the dam must be constructed with clay lining (or other lining to the satisfaction of the Responsible Authority) and the free board provisions are to be above the natural surface.

9. Waste water from the washing and disinfecting of poultry sheds must be left to evaporate within each shed or disposed of to an approved waste water disposal system.

10. All goods and materials must be stored to the satisfaction of the Responsible Authority so as not to be unsightly when viewed from nearby roads or land.

11. The amenity of the area must not be detrimentally affected by the use or development, through the:

(a) transport of materials, goods or commodities to or from the land;

(b) appearance of any building, works or materials;

(c) emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products;

12. Noise from plant and equipment used at the premises must comply with the requirements of the Environment Protection Authority's information bulletin No. N3/89 Interim Guidelines for Control of Noise from Industry in Country Victoria.

13. In the event of a spill, leak, fire or incident that may cause off-site odour, the permit holder must immediately notify the Responsible Authority.

14. Dead birds are to be frozen and removed from the site or processed in a chicken composting machine to the satisfaction of the Responsible Authority. Dead birds must not be buried on the site unless treated in such a composting machine or by other means approved by the Responsible Authority and then only in a manner and in location so as not to lead to the contamination of water being discharged from the land.

15. Litter is to be used in all places where the broiler chickens are to be kept and must be dry and of an approved substance capable of rendering droppings dry and inoffensive at all times to the satisfaction of the Responsible Authority.

16. Should any or all of the litter in the sheds become wet (meaning containing more than 45% moisture content) that litter must be removed and disposed off within 24 hours, to the satisfaction of the Responsible Authority.

17(a). When use of the sheds commences with the introduction of live chickens, the operator must give written notice to the Responsible Authority.

(b) For two (2) years from the date of such notice used litter from the sheds is not to be stockpiled on the land or spread on the land.

(c) After the said period of two years such litter may only be stockpiled on the land or spread on the land with the approval of the Responsible Authority and in accordance with a written plan of management in relation to such storage and spreading approved by the Responsible Authority.

18. Trucks removing used litter from poultry sheds are to be covered when leaving the property so as to prevent the littering of roadways.

19. Other than for loading and removal of birds, no vehicular deliveries to or removals from the site are to take place after 7.00 pm or before 7.00 am on any day without prior written approval of the Responsible Authority.

20. Vehicles engaged in the carriage of goods to and from the site must enter and leave Lewis Road from the north via Coster Road only.

21. The loading and unloading of vehicles and the delivery and pick-up of goods to and from the premises must at all times be carried on entirely within the site and be so conducted as to cause minimum interference with other traffic on local roads.

22. All vehicles used in the pick-up and transportation of live birds during night time hours must be fitted with high performance mufflers to the satisfaction of the Responsible Authority and the permit holder must use its best endeavours to ensure that such activities do not cause any detriment to the amenity by noise or excessive vehicular movement.

23. No security lighting or external floodlighting is to be installed so as to cause nuisance to surrounding property or any user of roads adjacent to the site.

24(a) A list of chemicals, disinfectants and other chemical concentrations used in the operation of the proposed sheds (including cleaning out thereof) must be submitted to the Responsible Authority for its approval and updated when necessary.

(b) No chemicals, disinfectants or other chemical concentrations, other than those on the list, are to be used in the operation of the sheds.

25. No chemical spraying is to be conducted on windy days and shed doors must be closed on the completion of all spraying to ensure that airborne sprays or odours therefrom are not transmitted beyond the site to the detriment of any persons.

26. All air discharged from broiler sheds via the duty exhaust fans must be discharged to atmosphere via vertical ventilation stacks. The outlets of all such stacks must be at least 5 metres above natural ground level and discharge air velocity must be at least eight metres per second. The design, installation and subsequent operation of the ventilation stacks must be to the satisfaction of the Responsible Authority.

27. Prior to the commencement of the use, the permit holder must submit an Environmental Management Plan for the management and operation of the permitted facility to the Responsible Authority for approval. The development and use of the subject land must be carried out in accordance with the plan to the satisfaction of the Responsible Authority.

28. Prior to the commencement of the permitted use the occupier must develop and seek approval from the Responsible Authority for a site stormwater and waste water management plan. Any stormwater discharges off site must comply with State Environmental Protection Policy (Waters of Victoria).

29(a) Vermin bait stations may be placed around each broiler shed and feed store. Bait systems are to be regularly monitored with details of monitoring and results being recorded in a log book. The log book is to be kept for a period of twelve months after commencement of the permitted use, and shown on request to an officer of the Responsible Authority.

(b) Bait stations are to be of a design (approved by the Responsible Authority) to minimise the risk of native wild life gaining access to the baits.

30. The permit holder must contribute to the cost of re-surfacing Lewis Road with gravel to a depth of 50mm for a distance of 700m from the corner of Coster Road within three (3) months of the completion of such re-surfacing works. The cost is to be assessed at a figure that is to the satisfaction of the Responsible Authority.

The Responsible Authority is directed to issue a permit in accordance with the above order pursuant to S. 85(1)(b)(ii) of the Planning and Environment Act 1987.

_______________________ ___________________________

Mr Peter Barber, solicitor of the firm of Deacons Graham & James, solicitors, appeared for the Responsible Authority. He presented written and oral submissions and called two expert witnesses namely Dr John Terence Bellair, consulting environmental scientist and Dr Graeme Scott Lorimer, air quality management and modelling consultant. Each of these witnesses gave oral evidence and presented written reports (in the case of Dr Lorimer, two written reports).

Mr A Hooper QC appeared on the direct instructions of his clients for the Applicants, Mr & Mrs Purchase. He presented written and oral submissions and called five witnesses. They were:-

(i) Pat Condina, consultant on waterways and catchment management;

(ii) Ian Gibbs Farran, consulting agricultural engineer;

(iii) Timothy John Pollock, environmental engineer;

(iv) Elizabeth Alison Hui, acoustical consultant; and

Each of these witnesses gave oral evidence and presented written reports (in the case of Mr Pollock four of them).

Mr Colin Taylor, solicitor of the firm of Russell Kennedy, solicitors, appeared for the objectors, including Mrs Lorraine Campbell, Alan Powell, Louise Powell, Helen Fox and Ronald Kemp. He also appeared for 61 other objectors making a total of 66. The names of all the objectors for whom he appeared are on two lists in the Tribunal file. These documents list 42 and 25 objectors respectively giving a total of 67 but Mr Taylor did not appear for Mr Jim Miller whose name appeared on one of the lists.

Mr Taylor presented written and oral submissions and called 10 witnesses. The first nine were people residing in or having an interest in land in the vicinity. They each gave oral evidence and presented a written statement of evidence. They were Ronald Lory Kemp, Brian Walter Sutton, Elizabeth Ellen Bernadette Roach, David Alan Lawton, Ms Leslie Edmonds, Leslie Gordon Costa, Gary Bruce Henwood, Helen Margaret Fox and Geoffrey Roger Schutt.

Mr Taylor also called Natasha Otzen, a planning officer of the Responsible Authority, as a witness.

Various plans, photographs and other documents were tendered in evidence and a video tape was played.

We conducted an inspection of the land and also of other properties where tunnel shed broiler activities were in operation. This view was conducted in the presence of the parties and their representatives, or such of them as wished to attend.

Initially Application under S.79 of the Planning and Environment Act 1987 (PE Act) to review the failure of the Responsible Authority to grant a permit within the prescribed time although the Responsible Authority subsequently determined to refuse the application and gave grounds set out below.

Use and develop land for a poultry (broiler) farm with two groups of four sheds to accommodate 320,000 birds.

Primary Agriculture Zone under the Buln Buln Planning Scheme now superseded by the Baw Baw Planning Scheme.

"The proposal is contrary to the orderly and proper planning of the area.

The proposed development and use will adversely affect the amenity of surrounding premises as a result of the visual bulk of the proposed sheds and emission of dust.

The proposal has the potential to affect the amenity of the area by the emission of odour.

The proposal is inconsistent with maintaining the existing and future amenity of adjoining land and the neighbourhood due to its proximity to existing residences and the current use of the adjoining land.

The proposal does not demonstrate a capacity to contain offensive odours within the boundaries of the subject land and gives no reasonable indication of satisfactory treatment of waste air to reduce or eliminate odour.

Traffic generated by the use will adversely impact on surrounding premises and their uses.

The subject land is prone to inundation and the effects of the proposal on the water courses would be detrimental to the environment.

Until the Code of Practice has been developed for the broiler industry sufficient to guarantee that there will be no offensive odour to adjoining properties and occupants to granting of a permit would be inappropriate.

A 500 meter buffer is not able to be maintained within the subject land boundary and it would be inappropriate to allow a buffer to exist on an adjoining property as the effect would be to sterilise that property from any sensitive uses."

1. This case concerns a proposal for eight broiler sheds to be established on an "L" shaped farming property of approximately 60 hectares which has a frontage to the north side of Sharps Road at Ripplebrook. The land is part of what was once a larger farm holding that has been subdivided on various occasions. The land is situated in an attractive farming district. It is generally fairly flat land with gentle rises and falls. The site proposed for the sheds would be in the floor of a slight valley. The sheds would be in two banks of four and all would be 500m or more from the nearest existing house.

2. There are farm houses, that might be called "genuine farm houses", together with rural residential or hobby farm residential properties in the immediate locality.

3. The actual site is used for grazing and would continue to be used for grazing or other farming activities. The proposed broiler sheds would occupy a relatively small area near the centre of the property.

4. Many days have been occupied in hearing this case in several groups of days spread over a number of months. It is unfortunate for the parties, and perhaps particularly for the Applicants to have had to remain in doubt as to the outcome over a longer than usual period. This has been occasioned by the length of the hearing and the inaccuracy of estimates as to the time required for its conduct. Some parts of the hearing were more protracted and repetitive than was warranted.

5. Conscious of the anxiety of the parties, and particularly the Applicants, to know the result of the case (whether for good or ill from their respective points of view) we called a hearing for the 24 June 1999 to give our decision. Even that date is later than we would have wished, but delays after the last day of hearing in relation to the question of proposed permit conditions. A set of draft conditions was circulated to the parties after the hearing by leave given during the hearing, and responses in writing, also by leave, were made. This occasioned more delay than we had anticipated.

6. In the hearing on the 24 June 1999 we announced our decision and gave an oral outline of our reasons. Without repeating all that was said on that occasion, the following is a summary.

7. We made reference to two passages in a document called "New Format Planning Scheme Panel Report" dated April 1999 and compiled by Helen Gibson, Chief Panel Member. This document discusses findings and experience of panels considering the new Victorian Planning Provisions based planning schemes and contain significant passages in relation to the long standing and vexed planning problems of the fragmentation of rural farming land, its use for essentially residential purposes and the proliferation of houses on farming land. We referred to two passages on page 17 under a subheading reading "Changing Nature of Agriculture". They read:-

"The nature of agriculture is changing in ways that will have important implications for planning in Victoria.

* It is broadening in scope ... no longer is agriculture concerned primarily with grazing (extensive animal husbandry) and traditional crop growing, although these uses still dominate in terms of area devoted to them. Growth in agriculture is occurring in industries associated with horticulture, viticulture, timber production and intensive animal husbandry.

* It is becoming increasingly industrialised. Productive modern agriculture involves the use of heavy machinery, equipment operating at all hours, the application of agricultural chemicals and fertilisers, frequent heavy vehicle traffic and the construction of large industrial type buildings.

* It is intensifying. There is a growth in intensive animal husbandry (poultry farms are a particular example) and intensive horticulture. Other traditional extensive animal husbandry, such as dairying, is also intensifying. This is closely associated with that of increasing industrialisation ...

The result is that agriculture cannot be regarded as a benign activity, but is one with potential to cause substantial detriment to surrounding uses, particularly residential, through noise, traffic, odour, spray drift, runoff and visual impact. Conversely, agriculture is also being adversely impacted by surrounding uses through the spread of plant and animal pests and erosion resulting from poor land management, reduced water quality and quantity, and complaints about agriculture practices."

8. This land in this zone is primarily for farming purposes. It is not zoned for residential purposes. Residential uses, whether they be on rural residential blocks or "hobby farm" holdings (which are generally really residential in character) are not part of the primary and essential purpose of the zoning. Residential uses, as distinct from farm houses used by families farming the land, are interlopers in this zone. It appears that land in this district and in this immediate vicinity has been fragmented, apparently unduly fragmented, by being cut up to enable people to capitalise on the residential value of the land. This undermines its farming viability in various ways. An important way is that it enhances its per acre value beyond what it can earn and sustain when put to most genuine farming purposes. Furthermore, it breaks the land up into pieces that are inappropriately small for farming activities.

9. If essentially residential uses come onto smaller holdings in such a zone they come on terms of the zone being used for farming. They cannot expect residential conditions and amenity and they cannot expect to inhibit legitimate farming activities that are appropriate in a farming zone but might be detrimental in a Residential Zone. It has been argued that these proposed sheds would "blight" adjoining land for residential use. We are concerned, on the contrary, about the reverse blight sought be cast on farming land intended to be used for legitimate farming by the demands of residential users.

10. We made reference to the common law concept of nuisance observing that conditions such as smells, noise, etc. might amount to a nuisance in one circumstance but not in another; depending on time, location, intensity, frequency and so on. Circumstances can amount to a nuisance in a rural setting, and can amount to undue detriment to farming amenity; but in both cases this must be judged on the basis of it being farming land in a farming locality and not on the basis that a residential amenity suitable for residential area is to be afforded to residential users who happen to be located in the zone. The assessing of nuisances was mentioned as being somewhat analogous to assessing amenity.

11. We added that it is not a matter of a total absence of detrimental affects. Various noise, dust and smell conditions are ordinary incidents of farming life and various types of farming practice. The potential for smells and other effects from intensive poultry sheds like broiler sheds has to be recognised. It does not mean that perfection at all times is the appropriate standard. Some degree of noise or smell has to be accepted along with occasional "upset" condition where such problems might be intensified to a degree that would be unacceptable if it occurred continuously or regularly.

12. We made reference to the 500m "buffer distance" recommendation in relation poultry kept for poultry meat production as contained in "Recommended Buffer Distances for Industrial Residual Air Emissions" publication No. AQ 286 of the Environment Protection Authority (Revised July 1990). This document was referred to on quite a number of occasions in the course of the hearing. It needs to be read as a whole and its various qualifications need to be taken into account. The document does not purport to create a hard and fast rule suitable for all circumstances. Whilst recognising that the document needs to be read as a whole, and recognising also that there can be a danger in quotations taken out of context, we made reference to several passages as follows;-

"While it is an objective of the Authority and the SEPP [State Environment Protection Policy] that such emission should be eliminated, it is recognised that even "state of the art" technology is not always capable of achieving this goal without fail. Equipment failure, accidents and abnormal weather conditions are among the causes which can lead to amenity reducing emissions affecting properties beyond the boundaries of the source premises. Unlike controlled, routine emissions, these "industrial residual air emissions" (IRAEs) are often intermittent or episodic in occurrence and may originate at or near ground level. Provision of an adequate buffer distance allows the emissions to dissipate without adverse impacts on sensitive land uses."

13. We noted that the evidence indicates that elevated discharge of odour bearing air through stacks can also dissipate the smells so as to avoid adverse impacts on sensitive land uses. The above quote starts on page 1 and concludes on page 2. Further down page 2 the following appears:-

"In the context of this document, particularly sensitive uses include:

Residential areas and zones (whether occupied or not), hospitals, schools, caravan parks and other similar uses involving the presence of individual people for extended periods, except in the course of their employment or for recreation."

14. On page 3, with reference to incompatibility of chemical and food preparation premises the document makes a point of wider import when it said:-

"... the reasons for their incapacity are often highly individual, needing to be addressed on a case-by-case basis to ensure that sensible planning solutions are reached."

15. At the bottom of page 3, in relation to stockpiles and other features associated with potentially troublesome air emissions there is reference to property boundaries:-

"The property boundary of any sensitive use nearest to the emission source, except in the case of an isolated house in a non-residential zone where the house itself would be the measuring point."

16. We made reference to the idea of eliminating smells, etc. beyond the property boundary but noted that this is really referable to an urban situation such as, for example, the urban abattoirs referred to in the well known "Protean" case (Protean (Holdings) Ltd v EPA [1977] VicRp 5; 1977 VR 51) associated with conditions, and not property boundaries in a rural farming situation like this one. We rejected the so-called "jogger" principle propounded by Dr Lorimer as appropriate, or any notion that the whole of adjoining properties up to their boundaries should be regarded as sensitive receptors. The question of houses having such status was referred to on two occasions in the course of our remarks.

"Where practicable, the buffer distance should be provided by the emitter; however, this ideal situation will not always be the case."

"If site-specific circumstances seem to indicate a reason for departing from the recommended distance, the advice of the Environment Protection Authority should be obtained."

19. Having noted that the document does not contemplate the 500m as a hard and fast rule we observed that we had not done so either. In some circumstances 500m might be insufficient whilst in others distances of less than 500m might suffice. Where 500m is satisfied, it is nevertheless necessary to consider the particular case with care to determine whether it is sufficient. It goes without saying that care is needed where 500m is not provided.

20. We observed that many issues had been canvassed in the course of the long hearing and that there had been enthusiastic, indeed at times over-enthusiastic opposition to the proposal. Nevertheless, the primary and principal issue is that of odour. This is one of the considerations giving rise to the idea of a 500m buffer distance.

21. We heard extensive expert evidence in relation to odours, odour emissions and computer modelling directed to anticipating and plotting odour distribution. We said that we agreed with the approach taken by Mr Pollock and in particular that we accepted that emissions from broiler sheds vary with batch age and ambient temperature. We considered that the inclusion of these invariables in the modelling to be appropriate.

22. Nevertheless, we expressed a certain degree of anxiety and uncertainty in relation to the modelling in this case because of uncertainty in the emission data as a consequence of the limited number of measurements and the treatment of samples prior to measurement. We were concerned about uncertainty associated with the paucity of data in relation to ammonia concentration used to determine the relationship between odour emissions and batch age. Furthermore we expressed some concern about the appropriateness of using the Darnam North meteorological file to represent conditions at the site, in particular because the meteorological conditions associated with elevated odours are likely to be local in nature. We also recognised that some of the uncertainties we have mentioned, like this one, may be difficult to overcome. Finally we referred to the lack of confirming information regarding the relationship between the predicted and actual odour concentrations associated with broiler operations.

23. We referred to the foreshadowed, but as yet not actual, code of conduct in relation to broiler shed operations. For comparison we referred to the equivalent code in relation to piggeries and to the assistance that that document affords to the Tribunal, to Responsible Authorities, proponents, the piggeries industry, objectors and the public generally. It would be of great assistance to equivalent people, including this Tribunal, if the foreshadowed broiler code was forthcoming. Its advent has been often predicted, but never realised.

24. We said that we agree with Mr Pollock's approach with respect to contour calculations but that we were left with a degree of doubt about the accuracy of contours having regard to the various uncertainties involved.

25. We noted that during a large part of the hearing we were being called upon to consider the proposal, including its odour aspects, on the basis of the results of the modelling. We had been preparing to consider whether we could be satisfied, even with the 500m distances, as to whether the proposal should be granted a permit. This was not to say that a permit would not have been granted, but rather that odour raised a serious issue calling for very careful consideration.

26. This situation was transformed by a proposal that apparently originated from a suggestion by Dr Bellair in the course of his evidence. He suggested the introduction of stacks to elevate discharge points from at least "duty" fans extracting air from sheds. This, he said, would dramatically reduce the danger of offensive odours at surrounding houses and considerably contract relevant odour contours. This was put forward as an idea rather than a thought through, calculated and designed proposal. However, the idea was taken up by the Applicants and both Mr Pollock and Dr Lorimer (experts called by opposing parties) examined the idea and found that it would afford odour reduction levels at nearest buildings at a factor of approximately four. The introduction of such stacks into the proposal removed it from the situation where odour is a real objection. We said we were satisfied that, even on a quite conservative approach, the proposal with stacks has to be regarded as satisfactory and no longer marginal. We said we could now approve the proposal, with the stacks, with a satisfactory level of confidence that the proposal is acceptable from an odour point of view.

27. In coming to this conclusion we accepted that five odour units on the B2 scale averaging time 3 minutes not to be exceeded at sensitive receptors on more than 44 hourly occasions per year is an acceptable standard in a rural situation like this one. We noted that this is roughly equivalent to, though marginally stricter than, the proposed New South Wales standard for rural locations of seven odour units on the B2 scale using a one second averaging time at the 99 percentile, that is, allowing 88 exceedances.

28. We said that we accepted that the sensitive receptors to be protected in this rural situation are the farm houses. We were not laying down a rule for application in all rural situations as they vary greatly. Patterns of closer or sparser settlement may be relevant, together with the presence or absence of other facilities (such as, for example, schools) which may be important in other cases. Subdivision into small lots, for example for market garden holdings, may give rise to a different situation compared with this one where land is generally still in relatively large pieces. We made reference to previous decisions of the Tribunal cited to us in the course of the hearing noting that these considerations mean that some aspects of them which were criticised in submissions to us are not necessarily of universal application. It is sometimes necessary to distinguish between a decision made in relation to its own particular situation and other cases where circumstances differ.

29. We added that we regarded the existing houses as the relevant receptors, not the sites where Mrs Fox, Mrs Campbell and her neighbour indicated that they may wish to build new houses closer to the site of the proposed sheds. Even if we had been satisfied that the planning permit and building applications indicating such intentions had been genuine we would have disregarded them. As it was we were far from impressed with the supposed coincidence of these three neighbours suddenly deciding, after this application had been made, and indeed the hearing started, that they wished to relocate or build new houses so close to the boundaries of the land as to supposedly embarrass this proposal. The comment had been made from our side of the table during the hearing that these contrivances served only to harm the creditability of those responsible for putting them forward.

30. We also expressed some concern about the conduct of the Responsible Authority in granting permits to Mrs Campbell and her Lewis Road neighbour very quickly indeed, without notice to adjoining owners and occupiers while these proceedings were part-heard. Our concern was compounded when other documents were tendered which indicated that the Responsible Authority is in the habit of granting permits for rural houses very quickly without notice and, it would appear, without due regard to the requirements of good planning which would ordinarily mean that such permits would seldom be granted. We recommended to Mr Barber that he should draw his client's attention to the portions of Mrs Gibson's document, referred to above, dealing with the planning problems associated with the fragmentation of rural land and the proliferation of rural houses together with some direction to the many previous determinations of this Tribunal and its predecessors dealing with this problem.

31. Before leaving the question of odour we referred to the question of whether used litter from the broiler shed operations should be permitted to be stockpiled and or distributed as fertiliser on the balance of the farm. We observed that there were good reasons why it would be wise for the operators to refrain from any such distribution for 1 or 2 years after commencement of operations. Used litter is a principal source of potential odour problems. We are approving these sheds on the basis that distance and the stacks will render the operation of the sheds acceptable from an odour point of view. It would be unfortunate and poor public relations to then create an odour problem by inappropriate stockpiling or spreading of litter. Surrounding owners and occupiers would not distinguish such odour problems from the operation of the sheds themselves. It would be too nice a distinction to expect a difference to be drawn between the sheds on the one hand and what might be said to be legitimate farming practice in fertilising paddocks with used litter on the other. Furthermore such practice would have an adverse affect on scientific, as well as informal, assessment of the efficacy of the stack solution.

32. At that point, after consulting his client, Mr Hooper invited the imposition of a condition specifying that no litter should be stockpiled or spread on the land during the first two years of broiler shed operations.

33. We are aware that such litter is used for fertiliser and that all surrounding farms could, quite legitimately, spread such material on paddocks even if it caused odour problems. We still had the question of whether stockpiling and spreading, viewed as a legitimate form of fertilising, should be permitted after the initial two years. Compared with other issues the idea of stockpiling and spreading received very little attention during the long hearing. We do not feel justified in simply permitting such practices, particularly as we had no specifications as to where and how they would be accomplished. Should stockpiling, if permitted, be within an enclosed building? Is covering or crusting effective and sufficient? Should there be an approved plan in relation to stockpiling and spreading? In this situation of doubt we indicated that we would impose a condition which required further or secondary approval from the Responsible Authority before either stockpiling or spreading could take place. In the event of such approval being unreasonably withheld the matter could come back to the Tribunal for determination under s. 149 PE Act. We anticipate that such approval would only be given by the Responsible Authority, or ultimately by the Tribunal, if a proper proposal could be advanced in relation to it.

34. We then discussed several other issues. Visual impact was one of them. We referred to modern farming practices, as mentioned in the Gibson document, as sometimes occasioned large structures. We referred to wheat silos in the Wimmera and Brown Brothers large building in connection with wine production at Milawa in the Ovens Valley. The proposed broiler sheds are certainly large but cannot be regarded as necessarily unacceptable in the circumstances notwithstanding that they would be placed in an attractive rural landscape. They would, by the way, be at a low point in that landscape rather than on a prominent hill or skyline. Nevertheless we said we would prefer non-reflective surfaces and muted colours. They would be preferable, though not essential. We were informed that there are no difficulties about that in relation to the walls of sheds although the roofs apparently are required to be of a silver colour. We indicated that our intention was to impose a condition requiring non-reflective and muted surfaces except with the further approval of the Responsible Authority, again on the basis that this would not be withheld by the Tribunal if it was unreasonably withheld by the Responsible Authority.

35. Traffic was raised an objection in terms of volume, safety and wear and tear on roads. We did not find this objection to be sustained as a reason for refusing the proposal. It is true that these rural roads in this vicinity do not provide ideal width and pavement conditions for trucks, or even for other traffic. It would be wasteful and unreasonable to provide wide two-lane sealed roads and to eliminate all narrow points and narrow bridges. It is true that traffic, including trucks, will be required to slow down, go carefully and perhaps even stop or back back to allow opposing or other traffic to pass. That is the situation now and this proposal does not change it in such a way as to justify refusal. A condition requires some contribution in relation to maintenance of Lewis Road. Access to the property, again in accordance with a condition, is to be from a particular direction.

36. Noise is another aspect of traffic but likewise it does not justify refusal. Cars, trucks and other vehicles are an ordinary incidence of traffic on such rural roads. Milk tankers, cattle trucks and trucks moving fodder and equipment are obvious examples. School buses and cars are also regular users. Some truck traffic, including cattle trucks and trucks servicing proposals like this one do operate at night and in the early morning. Nevertheless we do not find the volume and usage envisaged by this proposal such as to justify its refusal. Most rural houses are sheltered, to some extent, from traffic noise by being set back from the road. They do not normally experience the same impact as houses near busy roads or railways. It was suggested in this case that a house set back at 27m would suffer adversely from traffic associated with the proposal. We are afraid that people who chose to acquire houses within 27m of the rural road have to suffer ordinary rural traffic which includes cattle trucks and trucks associated with uses like this one during the night and we are not prepared to refuse the proposal on that account.

37. The other aspect of noise particularly referred to is the operation of machinery and equipment in the vicinity of the sheds. Vehicles and equipment such as exhaust fans are involved. We referred again to the comparison with what amounts to a nuisance. Some degree of noise has to be regarded as acceptable and, having regard to the distances involved, we regard this proposal as one that should be approved and not refused on the grounds of noise.

38. Dust and litter (in the sense of rubbish) including feathers were referred to. Various legitimate farming activities raise dust. Trucks and other vehicles on unsealed roads, driveways and paddocks cause dust and so does ploughing, hay making and the spreading of superphosphate. We do not see that dust and litter are prohibitive objections in this case, particularly having regard to the distances involved. We include the emission of some feathers at the exhaust fans in this observation.

39. Other objections were raised and argued in the course of the hearing. Although all the evidence and all the submissions advanced to us have been considered, indeed many of them have been considered by us on a number of occasions, none of the other matters can, in our opinion, be regarded as primary or important objections and certainly none of them are matters that should dictate refusal. An objection only warrants refusal if it cannot be mitigated by conditions to an extent that would render the matters complained of acceptable in the circumstances. We announced that we would allow the appeal and grant a permit subject to conditions.

40. There were suggestions that there should be a condition requiring compliance with an as yet unpublished code of practice for broiler farms "or similar publication when published". We think this suggested condition is too uncertain to be valid. It is too difficult to ascertain what duty it imposes or when it has been breached. This is particularly so where one is dealing with some unspecified "similar publication".

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Purchase N&Y v Baw Baw SC & L Campbell & Ors [1999] VCAT 1237

At a glance

Court

Decision date

Source

Judgment (133 paragraphs)

Purchase N&Y v Baw Baw SC & L Campbell & Ors [1999] VCAT 1237 (31 July 1999)

Parties