Victorian Civil and Administrative Tribunal|2001-01-31

Purchase v Baw Baw SC [2001] VCAT 699 (31 January 2001)

APPLICATION FOR REVIEW NOS 2000/030672; 2000/034833; 2000/075109

Application for Review Nos 2000/030672 and 2000/034833

Lot 4 on Plan of Subdivision 409837N, Parish of Yannatahan

An `L' shaped piece of land with a frontage to the west side of Lewis Road and an area of approximately 60 hectares

1. Enforcement order application 2000/030672 and permit amendment request 2000/034833 are dismissed and the Respondents' costs in relation thereto are reserved.

2. Permit amendment request 2000/075109 under Section 87 Planning and Environment Act 1987 is struck out.

3. Condition 1(a) in the decision of the application for review N and Y Purchase v Baw Baw Shire Council, Lorraine Campbell and Others being application for review No 1998/077176 is corrected pursuant to Section 119 of the Victorian Civil and Administrative Tribunal Act 1998 to substitute the word "dwellings" for the word "dwelling" therein.

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Mr Peter Barber, Solicitor, appeared with Mr Nicholas Rintoul, Solicitor of the firm of Deacons Solicitors for the Responsible Authority. He presented written submissions.

Mr David Proctor and Mr Neville Purchase appeared for the Respondents N and V Purchase and the Respondent company. They each presented a written submission in addition to oral arguments. Mrs Y Purchase also presented a written submission.

Mrs L Campbell presented written and oral submissions.

Ms Valerie Meg and Mr Gary Walsh appeared for Melbourne Water and made oral submissions.

A written submission prepared by Minter Ellison, Solicitors, on behalf of Westpac Banking Corporation, mortgagee of the land, was received. There was no appearance on behalf of Westpac. The written submissions prepared by Minter Ellison had been circulated to other parties prior to the hearing.

Various other documents were tendered in evidence. The evidence and submissions presented in documentary form have been retained on the file of the Tribunal.

Application under Section 114 of the Planning and Environment Act 1987 (`PE Act') for an enforcement order.

Application for Review Nos 2000/034833 and 2000/075109

Requests under Section 87 for amendments to a permit.

Alleged failures to comply with Conditions 5, 6, 7, 8, 14, 24(a), 27 and 28 of Planning Permit No 98208 issued by the Responsible Authority on 21 July 1999 at the direction of the Victorian Civil and Administrative Tribunal in its determination of Application for Review 1998/77176 which permit is applicable to the land and its current use.

To amend Permit 98208 to add a condition that no more than five batches of broiler chickens may be grown in any one calendar year in either of the two groups of four sheds and that the production cycle for each group of sheds should be five weeks out of synchronisation with the other group of sheds, and also that Condition 14 of the said permit be amended to insert the words "or cremated" after the word "machine".

To amend Permit 98208 to make it clear that two dwellings are allowed, and not just one, and also to amend Condition 14 to insert the words "or cremated" after the word "machine".

1. The Responsible Authority commenced the two initial proceedings before us, namely the enforcement order application 2000/030672 and permit amendment request 2000/034833. The third case is request 2000/075109 initiated by the Respondents to the first two proceedings. All these cases concerned Permit No 98208 issued by the Responsible Authority on 21 July 1999 purportedly allowing:

To use and develop the land for an Eight Shed Broiler Farm and a single residential dwelling.

2. A broiler farm, of course, refers to a poultry farm for the purpose of raising poultry for meat.

3. Permit 98208 was issued in purported compliance with the direction given by the Tribunal (constituted by ourselves) in the determination of application for review Purchase v Baw Baw Shire Council, Campbell and Others (1998/77176).

4. Our decision in that case was to grant a permit for broiler sheds. We did not make reference to "a single residential dwelling", in our decision to grant the permit. The addition of that phrase is something that the Responsible Authority has taken upon itself in issuing the permit.

5. It is important to appreciate that the grant of the permit became the responsibility of the Tribunal after the application for review 1998/77176 was launched. The duty of the Responsible Authority, when the Tribunal has determined to grant a permit, is to issue a permit in terms of the grant made by the Tribunal. The Responsible Authority has no right to go adding to the permissions granted or to the conditions imposed by the Tribunal. Its duty is to issue a permit in terms of the decision of the Tribunal. If the Responsible Authority considers that the Tribunal may have overlooked something, or made an accidental slip or mistake, the proper course is to draw the attention of the Tribunal to this circumstance so that the Tribunal can correct its determination if necessary.

6. In this case, and without at this stage going back over the previous file to try and determine the point, we assume that our decision to grant permission for broiler sheds, and not for "a single residential dwelling" was probably because we have been convinced that no permission for the dwelling was required. At any event, the inclusion of the reference to a single dwelling has caused some confusion and concern.

7. We were informed during the hearing of the current proceeding, and we understand it to be common ground, that the application and the application plans always contemplated two dwellings. The Responsible Authority is not opposed to there being two dwellings.

8. The Respondents are concerned that the permit issued to them apparently restricts them to one dwelling. It is common ground that, not only did the proposal always involve two dwellings, but also that while many issues were contested at the hearing of the previous application for review, which was spread over quite a number of days and several months, they did not include any dispute about the number of dwellings. No particular reference was made in the hearings generally, or in relation to the discussion of conditions in particular, in relation to the number of dwellings. We are satisfied that if we had directed a permit for one dwelling only that would have represented an accidental slip on our behalf suitable for correction under Section 119 of the Victorian Civil and Administrative Tribunal Act 1998 (`VCAT Act'). That section enables the Tribunal to correct clerical mistakes and errors arising from accidental slips or omissions and the like.

9. As it is, it appears that this inclusion of the reference to the number of houses in the words of permission was an error of the Responsible Authority and that it would be appropriate for the Responsible Authority to make the correction pursuant to Section 71 PE Act that would clarify the inconsistency which presumably exists between plans showing two dwellings and words of permission referring to one.

10. Whilst on this subject we make reference to a further point in relation to the words of permission appearing in the permit document. It speaks of allowing "to use and develop the land for an Eight Shed Broiler Farm". We did not, in fact, specify eight sheds in our decision. Such a limitation might more appropriately appear in the conditions or in the endorsed plans. Its appearance in the words of permission present as another addition by the Responsible Authority.

11. In Condition 1(a) we required endorsed plans in accordance with the plans submitted but modified to include the layout and configuration of the proposed "dwelling and sheds". It appears that there has been a slip here in that "dwelling" should read "dwellings". This appears to be a typographical error and an accidental slip and omission not noticed when draft conditions were being discussed and the determination in relation to the earlier application for review was being prepared.

12. We do invoke the power under Section 119 VCAT Act to add the missing "s" to the word dwelling in Condition 1(a).

13. This concern about the plural of dwelling was one of the matters raised by Mr and Mrs Purchase in their amendment request 2000/075109. That matter being dealt with by corrections under the "slip rules" of Sections 71 PE Act and 119 VCAT Act, is unnecessary to deal with the matter under the request made pursuant to Section 87 PE Act.

14. As can be seen, there was no controversy before us as to the substance of the question of the number of dwellings to be referred to in the permit. As a matter of fact, substantial agreement was achieved between the Responsible Authority and the Respondents in relation to the proceedings initiated by the Responsible Authority, either prior to the commencement of the hearing, or prior to the conclusion thereof.

15. The enforcement order application initially referred to seven alleged contraventions of the permit. Of these five were abandoned or not proceeded with at the hearing. That left only two, and even in relation to one of those there was substantial agreement.

16. However, before dealing with those outstanding two matters we will refer to alleged contravention 3 in the enforcement order application which suggested that the dams shown on the endorsed plans had not been constructed to the satisfaction of Melbourne Water and the Responsible Authority incorporating various features required by Condition 8 of the permit.

17. It is common ground that the dams had not been constructed at the time of the hearing, although it was alleged, on behalf of the Respondents, that it always was and still was the intention of the Respondents to construct them. The point was taken that the drafting of the condition did not require the construction of the dams at any particular time. The heat was taken out of the controversy by an agreement between the Responsible Authority, the Respondents and Melbourne Water, that the required dams would be constructed by 31 January 2001, subject to an arrangement allowing for some flexibility to cater for a situation that could arise if weather and land conditions prevented construction by that date. An undertaking was given that permitholders would construct or cause to be constructed the storage dams shown on the endorsed plans not later than 31 January 2001 unless the Responsible Authority consents in writing to the construction by a later date on the basis that, in determining whether or not to grant such consent, the Responsible Authority would have regard to the opinion of the Shire Engineer of the Shire of Baw Baw as to the condition of the soil at the dam site and its fitness for such construction in terms of moisture content at the relevant time.

18. On the basis of the giving and acceptance of such an undertaking, we were not called upon to deal further with the alleged contravention in relation to the dams.

19. The fourth alleged contravention in the enforcement order application was that dead birds are being incinerated in a crematorium and not frozen and removed from the site or processed in a chicken composting machine to the satisfaction of the Responsible Authority in breach of Condition 14 of the permit.

20. As to the merits of this process, the Responsible Authority and the Respondents are in agreement that a procedure of cremation, approved by the Environment Protection Authority, is appropriate and acceptable. (Mr Schutt in his brief and general letter complained of smells from the procedure, but as he did not appear, it was not possible to ascertain whether his odour complaints really related to cremation as the other evidence suggested that the procedure does not create problems of that sort.)

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.

22. As we have said, the Responsible Authority and the Respondents are in agreement that incineration by a means approved by the Environment Protection Authority is acceptable. Both requests for permit amendment under Section 87 PE Act ask for the inclusion of the words "or cremation" after the word "machine". The purpose of this is to allow the cremation of dead birds.

23. However, an examination of the terms of Condition 14 reveals that the amendment sought is not really necessary. The condition provides for dead birds to be dealt with in any of the following ways:

(b) composting in a composting machine to the satisfaction of the Responsible Authority;

(i) treated in a composting machine to the satisfaction of the Responsible Authority, or;

(ii) treated by other means than a composting machine approved by the Responsible Authority.

24. In our view option (c)(ii) allows for burial on the land provided that dead birds are first treated by a means (other than composting machine) approved by the Responsible Authority. The Responsible Authority is willing to approve cremation approved by the Environment Protection Authority. Thus its approval for such cremation and the subsequent burying of the ashes on the land in a manner and location it approves allows the current practice to continue in terms of Condition 14 as it now stands so that amendment by the addition of the words "or cremation" are not necessary.

25. We note that, although the spreading of the products of cremation on the surface of the land would probably be innocuous, so far as contamination of water discharging from the land is concerned, nevertheless, the terms of Condition 14 require burial. This implies some covering with soil.

26. The question of cremation being resolved in this way, it becomes unnecessary for us, so far as this issue is concerned, to consider the issues raised as to whether grounds for the making of a permit amendment request under Section 87(1) PE Act exists or as to whether we should refuse to consider the Responsible Authority's request pursuant to Section 89(3) PE Act on the basis that the request was not made as soon as practicable after the person making it had notice of the facts relied upon in support of the request.

27. So far as the merits of the idea of cremation by means satisfactory to the Environment Protection Authority are concerned, we agree with the Responsible Authority and the Respondents, that such a procedure is appropriate.

28. The other "live" alleged contravention in the enforcement order application is alleged contravention 6 to the effect that an environmental management plan for the management and operation of the permitted facility has not been approved by the Responsible Authority prior to the commencement of the use in alleged contravention of Condition 27 of the permit.

29. A certain mix-up has occurred in relation to Condition 27. The permit as issued by the Responsible Authority contained Condition 27 in terms that did not require the approval of the management plan prior to the commencement of the use. In reliance of the permit as issued the Respondents invested their money, constructed their sheds and commenced their use prior to the approval of the management plan. This was not in disregard of the need for a management plan. Mr Purchase's evidence was that such a plan had been submitted for approval as early as July 1998 and that since then the Respondents had encountered difficulties and delays caused by the Responsible Authority and its uncertainty as to what it required. He provided a chronology of the steps taken and of waiverings by the Responsible Authority over many months. There is an outline of these matters on paragraphs 2 to 7 on page 6 of his written submission.

30. As a matter of fact, Condition 27 as we imposed it did require that the permitholder submit an environmental management plan for the management and operation of the permitted facilities to the Responsible Authority for approval prior to the commencement of the use (as required in the permit as issued) with the following further requirement namely:

The development and use of the subject land must be carried out in accordance with the plan to the satisfaction of the Responsible Authority.

31. We think this does imply that the use and development should accord with the approved plan and consequently that the plan should be approved so that the use can accord with it. However, the Respondents have a reasonable explanation of their commencement of their use on the basis of the permit as issued to them and it appears that there has been considerable delay since the commencement of the use in February 2000 due to difficulties on the part of the Responsible Authority to make up its mind as to what it will approve in this connection.

32. This matter needs to be put in order. Indeed, Mr Barber, who appeared for the Responsible Authority, said on the second day of the hearing, "I will make it my business to see that the management plan is fixed quickly".

33. If the matter is not fixed, as to the contents of the plan, then the remedy is for the matter to be referred to this Tribunal pursuant to Section 149 PE Act. We do not think it appropriate, at this stage, to attempt to forestall that procedure by dealing with the question on an enforcement order application under Section 114 of that Act. In particular, we do not think it would be just or reasonable in the circumstances to require a cessation of the substantial business being conducted on the land because of the absence, at this stage, of an approved environmental management plan. We say that in the particular circumstances of this case. It certainly should not be taken that the absence of a required approved plan will not, in other cases, occasion an enforcement order. The use having commenced under the circumstances referred to above, and in circumstances where, for all we know, current procedures may wholly accord with the environmental management plan ultimately approved, we are not persuaded that we should, at this stage, make an enforcement order preventing a continuation of the use in the meantime.

34. That disposes of the enforcement order application. There is one further outstanding matter. The request under Section 87 PE Act for amendment of the existing permit commenced by the Responsible Authority seeks an amendment to the permit by the imposition of a new permit condition. The condition sought would impose a limitation on the number of batches of broiler chickens to be grown in each of the two groups of sheds to five per annum with an additional condition that no batch should commence its cycle in either group of sheds within five weeks of the commencement of a batch in the other group of sheds.

35. The inclusion of such a condition is now sought, in fact, on two bases. It is suggested that the failure to include such a condition was, or at any rate may have been, an oversight by the Tribunal in its determination of the earlier application for review when the permit was granted. Mr Barber, in his submissions on behalf of the Responsible Authority, restrained his submissions to the extent of including the possibility that the suggested omission may not have been an omission at all in that we may never have intended to include such a condition in the first place. In that event the wind would be taken from the sails of his suggestion that the omission should now be corrected or made good.

36. He pointed to two ways in which the correction, if that is what it would be, could be accomplished. He referred to Section 119 VCAT Act whereby we could correct an accidental omission. Alternatively, the request for amendment of the permit under Section 87 PE Act was based on the suggestion that there may have been a material mistake in relation to the grant of the permit (ie the ground under Section 87(1)(c)) constituted by a failure to include a condition that we had intended to include. We note, by the way, that at a directions hearing the possibility of reliance upon another ground, namely material change in circumstances which has occurred since the grant of the permit (Section 87(1)(d) PE Act) was averted to, but we are not aware of a basis for that ground having been advanced at the hearing.

37. Mr Barber explained that the occasion for seeking the inclusion of this new condition arose because a neighbour who had been an objector to the grant of the permit had noticed chickens for a new batch being transported onto the land within five weeks of an earlier batch where the Objector had understood that this was not to occur. This complaint caused the Responsible Authority to review this issue leading to a situation, as Mr Barber put it, where there was a need to clarify the matter of the five week gap between batches.

38. We have already mentioned the protracted nature of the previous hearing. There were three days of hearing in December 1998, four in March 1999, six in May and a final day in June 1999. We accept that it is true that in the early stages it was suggested that it was the intention to maintain a five week separation between batches and that Mr A Hooper QC, who appeared for Mr and Mrs Purchase in that case, offered to accept a condition to that effect.

39. Of course it does not follow that an offer to accept such a condition will necessarily be taken up and that such a condition will necessarily be imposed. The Tribunal may take the view that such a condition is unnecessary or unjustified, or even undesirable. Furthermore, an indication of an intended mode of operation does not necessarily mean that a condition requiring that mode is justified or necessary or will be imposed.

40. In this particular case, that is the application for review case, our view of the merits was clarified and transformed over the course of the hearing by the introduction, adoption and imposition of the idea of requiring exhaust stacks to enhance the dispersion of air from within the broiler sheds to significantly reduce the danger of unpleasant odours being experienced at sensitive locations in the surrounding area.

41. In the course of the hearing of the review case conditions were discussed, and during such discussions before the end of the hearing the inclusion or omission of a five week delay condition was not raised. We are satisfied that, in granting the permit, we did not intend to include such a condition and consequently there was no mistake, either under Section 87(1)(c) PE Act or Section 119 VCAT Act in omitting it. We were of the view, and are of the view now, that such a condition is unnecessary in the circumstances. The imposition of the requirement of the stacks resolved such doubts as we may previously have entertained in this regard.

42. In any event, the point was taken on behalf of the Respondents that the Tribunal should refuse to consider the Responsible Authority's request pursuant to Section 89(3) PE Act on the basis that the request had not been made as soon as practicable after the Responsible Authority had notice of the facts relied upon in support of the request. In this connection Mr Barber sought to argue that the Responsible Authority did not have notice of the facts relied upon until it received the complaint from the neighbouring Objector. We do not accept this contention. All the facts necessary became known to the Responsible Authority, if there had been a material mistake in relation to the grant of the permit on account of the omission of such a condition, when it received our determination in relation to the application for review. That occurred at approximately mid 1999. The Responsible Authority had notice of all relevant material facts at that stage and could immediately have sought rectification, either under Section 87 PE Act, or, as probably would have been more appropriate, under Section 119 VCAT Act. In the circumstances we are not satisfied that the Responsible Authority made its request as soon as practicable after it had notice of the facts relied upon in support of its request.

43. We note that the basis of the suggestion of the five week separation was really as an added precaution against the creation of off-site odour problems by preventing a coincidence of the highest potential odour periods occurring simultaneously with the two sets of sheds. There was incidental reference to a possible further advantage in terms of bird health, although the distant separation between the two sets of sheds is the primary device in this connection and bird health was only ever a secondary and subsidiary consideration in relation to batches separation.

44. We also note that Mrs Campbell advanced some evidence and allegations in relation to odour emanating from the sheds. Her allegations in this connection are not admitted by the Respondents. She advanced them, as we understand it, in support of the merits of a contention that there should be a condition requiring a five week time separation between batches. In the circumstances we are not called upon, for the purposes of determining the current proceedings, to determine a question as to whether there are unacceptable odour emanations attributable to the use permitted. Of course, it was never contemplated that there would be no odour emissions. For present purposes we merely note Mrs Campbell's allegations, and those of Mr Schutt, and her suggestion that the installation of stacks on now-operating broiler sheds affords an opportunity for check assessments to be made of the efficacy of such stacks as a means of odour dispersal.

45. We now come to the question of costs. The Responsible Authority does not seek an order for costs, and neither does anyone else, except for the Respondents. The Respondents seek costs against the Responsible Authority and the most pressing aspect of their application relates to costs of the Westpac Banking Corporation.

46. The bank received notice of these proceedings because they may represent a threat to its security. The bank has a mortgage over the land. The result of the bank having notice of the proceedings was that it consulted its solicitors, Minter Ellison, giving rise to written submissions prepared by those solicitors tendered on its behalf and circulated to other parties prior to the hearing. The bank did not appear and has made no application, so far as we are aware, for an order against the Responsible Authority for its costs. A letter from Minter Ellison of 22 September 2000 enclosing the bank's submissions merely says, in this connection:

If the Tribunal determines to dismiss the enforcement order application and the Council's request to amend the permit, we request the opportunity to make a further written submission to the Tribunal on the question of costs in relation to each proceeding.

47. That amounts to a request that costs, or at any rate the question of bank's costs, be reserved. The question of making an order for costs in favour of the bank, and the quantum of any such order, does not arise at this stage.

48. Mr Proctor, on behalf of the Respondents, raised the question of those costs because his clients understand that they will be obliged to pay $8,000 to the bank for costs claimed by Minter Ellison in relation to the preparation of the written submissions tendered on behalf of the bank. Apparently the contractual relationship between the bank and the Respondents will enable the bank to require the Respondents to bear this expense. The Respondents now want an order for $8,000 in their favour against the Responsible Authority to indemnify them against such a charge.

49. We are not prepared to make an order in favour of the Respondents in relation to $8,000 that might be charged to the bank by Minter Ellison for work in connection with the written submission. We think that any question of the bank's costs should be dealt with on an application by or on behalf of the bank for those costs. In such an event an assessment can be made as to whether any order should be made, taking account of the nature of the proceedings. The ordinary rule before this Tribunal is that no order for costs is made. There is a power to make an order for costs where justice demands that in the circumstances having regard to the various considerations to be found in Section 109 VCAT Act. If an application is made on the basis that the proceedings were (perhaps at all times) so insubstantial, unwarranted and unlikely of success as to be vexatious or so as to justify costs where they would not normally otherwise be granted, those matters will have to be assessed at a later stage when such application is made. Likewise, in relation to the quantum, it is not apparent that $8,000 would be justified, if an order is to be made. Mr Barber observed that this is a very considerable sum, having regard to the apparent work involved. Furthermore it is not apparent that any costs, if ordered, would be assessed on a solicitor and own client basis, rather than on a party/party basis.

50. We are not prepared to make an order against the Responsible Authority in favour of the Respondents for the $8,000 they may be liable for under their contract (of mortgage) with the bank.

51. The Respondents indicated that they may claim some other costs, the amount of which have not been finalised. At this stage we will merely reserve the question of the Respondents' costs.

52. We propose to strike out the Respondents' request under Section 87 PE Act, to correct Condition 1(a) in our order in Application for Review 1998/077176 and to dismiss the Responsible Authority's enforcement order application and request under Sections 114 and 87 PE Act with the Respondents' costs in relation thereto being reserved. Such dismissal does not necessarily mean that those proceedings were unnecessary or unjustified, or if they ultimately became so, that they were necessarily unnecessary or unjustified from the beginning. We do not find it necessary to determine such questions at this stage. If subsequent applications for costs give rise to a consideration of these or other questions they can be determined when they arise.

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Purchase v Baw Baw SC [2001] VCAT 699

At a glance

Court

Decision date

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Judgment (82 paragraphs)

Purchase v Baw Baw SC [2001] VCAT 699 (31 January 2001)

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