Victorian Civil and Administrative Tribunal|2006-10-10

Schembri v Cardinia SC [2006] VCAT 2042 (10 October 2006)

Application under Section 77 of the Planning and Environment Act 1987 (the Act) to review a decision to refuse a permit. Green Wedge Zone. Land Subject to Inundation Overlay. Clause 52.31Broiler Farm. Repeat Application. State and Local Planning Policy Framework. Zone Purposes. Suitability of the site for broiler farm having regard to inundation characteristics. Compliance with the Broiler Code mandatory.

31 May, 2006, 1 and 2 June, 2006 and 25 August, 2006

Schembri v Cardinia SC [2006] VCAT 2042

The decision of the responsible authority in permit application TO50892 is set aside

A permit is granted in relation to land at 320 South Yannathan Road, Yannathan. The permit will allow use of the land for the purpose of a broiler farm and dwelling, the construction of four sheds holding up to 50,000 birds per shed, and associated building and works, in accordance with the endorsed plans and subject to the following conditions:-

1 The use and development must not commence until three (3) copies of amended plans have been submitted to and approved by the responsible authority. The plans must be drawn to scale and dimensioned in metric. The plans must be generally in accordance with the application plans but modified to show:

(a)

A schedule of materials and finishes for all buildings.

(b)

landscaping (including a schedule of planting) showing species, locations, approximate height and spread of landscaping to filter views of the development from adjoining properties (ie. around the perimeter of the sheds). The width of the landscaping screen must be a minimum of five (5) metres and all species must use local indigenous plants. The plan must also include a schedule for maintenance of the landscaping.

(c)

a sixty (60) metre minimum setback of all buildings and works from the centreline of the Old Lang Lang River Watercourse, or such other dimension approved by the responsible authority and Melbourne Water.

(d)

The broiler farm, sheds, silos and associated buildings and hardstand area set 750mm above natural surface level.

(e)

Elevations and location of all buildings including the storage/facilities shed.

(f)

Details (including location and sections) of drainage works, including the retarding basin and any retention basin for polluted runoff as required and approved by Melbourne Water.

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

3 The broiler farm sheds must be designed and operated as fan forced tunnel sheds and 90% or more of total emissions must be discharged by the air extraction fans located at the eastern end of the sheds over the average annual operation of the sheds.

4 Prior to commencement of the approved use the, an Environmental Management Plan (EMP) for the management and operation for the proposed use, must be submitted to and approved by the responsible. When approved, the EMP will be endorsed and will then form part of the permit. Use of the facility must at all times be conducted in accordance with the endorsed EMP.

5 Any effluent or wastewater generated on the site must be contained onsite and prevented from entering any waterways, to the satisfaction of the Responsible Authority.

6 The facility must be designed and operated to ensure that noise levels emanating from the site 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

7 All clearing or construction activity associated with the development of the site must be carried out in accordance with EPA Publication 275: Construction Techniques for Sediment pollution Control to the satisfaction of the responsible authority.

8 All dead and diseased birds must be collected on a daily basis and must be stored and disposed of to the satisfaction of the Responsible Authority. An acceptable method of disposal is storage in a chillier/freezer room pending collection and offsite disposal.The burying of dead birds on site is prohibited.

9 Litter is to be used in all places where 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.

10 All litter and associated waste must be removed from the site at the end of the batch/cycle and must not be stored on the site or distributed on the site.

11 The site must be kept in a tidy condition to the satisfaction of the Responsible Authority.

12 The poultry sheds and all feed stores must be vermin and bird proof to the satisfaction of the Responsible Authority.

13 The management regime of the site must include the regular use of target specific, environmentally safe rodent bait stations around the exterior walls and end doors of the sheds.

14 No polluted or sediment laden run-off water shall be permitted either directly or indirectly to migrate off site andior to enter Melbourne Water's drainage system during or after the development of the site.

15 All stormwater discharge from the site must be conveyed by means of drains to satisfactory points or areas of discharge approved by the Responsible Authority.

16 No deliveries or dispatches to or from the site, with the exception of bird pick up from the site, shall take place after 7.00 pm or before 7.00 am on any day without the prior written approval of the Responsible Authority.

17 The loading and unloading of vehicles and the delivery of goods to and from the premises must at all times be conducted so as to cause minimum interference with other traffic.

18 The surface of the car parking and loading areas and access lanes must be treated to the satisfaction of the Responsible Authority to prevent dust and drainage run-off causing a loss of amenity to the area.

19 No external floodlighting shall be installed without the written permission of the Responsible Authority.

20 All vehicles used in the pick-up and transportation of live stock during night time hours shall be fitted with high performance mufflers to the satisfaction of the Responsible Authority and the permit holder shall use its best endeavours to ensure that such activities do not cause any detriment to the amenity to the surrounding area by noise or excessive vehicle movements.

21 No chemicals, disinfectant or other chemical concentrations other than those set forth in the Environmental Management Plan inventory shall be used in the operation of the sheds hereby permitted (including the cleanout thereof).

22 The permit holder/operator shall use all appropriate management techniques to the satisfaction of the Responsible Authority to minimise emission of any poultry or chemical, disinfectant or associated odour and noise associated with the poultry farm operation herby permitted beyond the site to the detriment of any person at a sensitive land use.

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

24 Prior to construction of the internal roadway, detailed engineering plans are to be submitted to and approved by the Responsible Authority which show all drainage works. The roadway servicing the sheds must be properly formed to such levels that it can be used in accordance with the plan and must be surfaced with crushed rock of an adequate thickness to prevent the formation of potholes and depressions according to the nature of the sub-grade and the vehicles which will use the roadway and must be adequately drained (including the provision of culverts to minimise potential ponding upstream of the road) and maintained continuously in a useable condition.

25 Power and phase failure alarms must be fitted to all sheds to detect any power malfunction.

26 In the event of a power malfunction an emergency generator must be available which is capable of covering all electrical power requirements to maintain normal operating conditions.

27 Within 6 months of the commencement of use, landscaping works as described on the endorsed plan must be completed to the satisfaction of the Responsible Authority and must thereafter be maintained to the satisfaction of the Responsible Authority.

28 No poultry shall, for the purpose of trade, be killed, cleaned, dressed or stored on the premises.

29 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.

30 All earthworks must be undertaken in a manner that minimises soil erosion, and any exposed areas of soil must be stabilised to prevent soil erosion to the satisfaction of the responsible authority.

31 Erosion must be controlled during construction in accordance with the Environment Protection Authority Guideline TG208190 .

32 The layout of the site and the size of the proposed dam, as shown on the approved plan, shall not be altered or modified without the consent in writing of the responsible authority.

33 The construction and maintenance of the dam shall be in accordance with the specification contained in the publication 'How to prevent Dam Construction Failures', prepared by the Department of Conservation and Natural Resources.

34 The dam must be sited and constructed to prevent damage or detriment from the discharge of water from the spillway/overflow or as a result of the failure of the dam.

35 The spillway of the dam shall be constructed of rock or similar non-erodable material.

36 Any topsoil on the proposed dam site must be stripped and stockpiled for spreading on all disturbed ground above the full supply level. No topsoil may be removed from the site without the written approval of the responsible authority.

37 The top and outside face of the dam wall shall be covered with topsoil of depth to the satisfaction of the responsible authority and shall be sown with a suitable grass species to prevent erosion to the satisfaction of the responsible authority.

38 The floor levels of all broiler sheds and ancillary buildings are to be constructed a minimum of 600mm above the applicable flood level. All new buildings are to be constructed with floor level a minimum of 600mm above the flood level.

39 All new buildings are to be constructed on a fill pad that extends at least five metres beyond the footprint of the permitted buildings. The fill pad is to be a minimum of 450mm above the flood level.

40 The drainage system in the Koo Wee Rup Flood Protection District cannot accept any increase in stormwater flows resulting from extensive development. All runoff from the proposed development is to be directed into an on-site retarding basin. The retarding basin may be provided as freeboard storage above a farm dam. The requirements of this retardation are:

900mm of freeboard storage in a dam above the full supply per hectare of catchment area (and including the dam area);

Outlet from the dam to be controlled to 3 litres/second per hectare of catchment (including the dam area);

The freeboard provision is to be above the natural surface to avoid possible ground water problems.

Any chlorination of the dam water must not be undertaken within the retarding basin darn.

41 Detailed design plans and sizing computations of the proposed dam and hydrological computations and detailed design plans for the sizing of any retention basin required by Melbourne Water, are to be submitted to Melbourne Water for comment and approval prior to the commencement of any works.

42 No material other than stormwater must be discharged into the drainage system.

43 Runoff from any surface that may be affected by wastes associated with the broiler farm (i.e. from accidental spillages, waste dust etc) is to be directed to a facility that has the capacity to retain runoff from a 10 year Average Recurrence Interval (ARI) storm event, as per the Victorian Code for Broiler Farms. This may involve the provision of a retention basin. Water from any retention basin cannot be used for reuse purposes unless it is adequately treated.

44 All buildings or dams associated with the poultry farm are to be set back a minimum of 60 metres from the centreline of all waterways, including the Old Lang Lang River course, or an alternative distance approved by the responsible authority and Melbourne Water.

45 Dead birds, litter, shavings or any waste associated with poultry farm operation must not be spread or stored on site, without the further written consent of the responsible authority.

46 Detailed design drawings of the site drainage are to be submitted to Melbourne Water prior to the commencement of any works associated with the proposed broiler farm.

47 No polluted and/or sediment laden runoff is to be discharged directly or indirectly into Melbourne Water's drains or watercourses.

(a)

the development is not commenced within two years of the date of the permit.

(b)

the development is not completed and the use commenced within four years of the date of this permit.

The Responsible Authority may extend the periods referred to if a request is made, in writing, before or within three months of the relevant expiry date.

The responsible authority is directed to issue a permit in accordance with this order under the provisions of Section 85(1)(b) of the Planning and Environment Act 1987.

Mr N Tweedie of Counsel, instructed by Mr N Crawford of Best Hooper Solicitors.

Mr N Crawford of Best Hooper Solicitors appeared at the hearing on 25 August, 2006.

Mr Tweedie called Mr C Bloink, aquatic ecologist and Dr A McCowan, engineer.

Mr M Townsend of Counsel instructed by Hunt and Hunt Solicitors

Mr Townsend called Mr G Veitch, environmental engineer.

1 This is an application to review the decision of the responsible authority to refuse permission for the use and development of land at 320 South Yannathan Road, Yannathan, for the purpose of a broiler farm. The responsible authority issued a Notice of Refusal to Grant a Permit for the following reasons:

1. The new location will result in the broiler farm coming closer to dwellings increasing the loss of amenity in the locality.

2. The use and development is unsuitable within a Land Subject To Inundation Overlay under the Cardinia Planning Scheme. The new location is closer to closer to a watercourse which may result in environmental impact.

3. The use and development is unsuitable within a Green Wedge Zone.

2 At the commencement of the hearing Mr Peake applied to amend the permit application by including reference to the use and construction of a dwelling associated with the broiler farm. We ordered the amendment of the permit application in accordance with Mr Peake's request.

3 The current proposal represents the second attempt to obtain a permit for a broiler farm on the review site. An earlier application for a 300,000 bird broiler farm was refused by the Council in 2004, a decision which was upheld by the Tribunal on review (P1826/2004).

4 The Tribunal in the earlier application which was constituted by the same Members as those who heard the current application, made, in summary, the following pertinent findings:

i

The Broiler Code and in particular the Best Practice Guideline E1G1 which states that "Broiler sheds and associated earthworks must not be located in areas designated as subject to inundation under any planning scheme, and must not adversely affect flood plain capacity or natural drainage lines" does not constitute a prohibition of the use on land affected by a Land Subject to Inundation Overlay (LSIO) but it does establish a very high bar when determining whether permission ought to be granted for proposals located on flood liable land.

ii

Notwithstanding the non objection to the application from the flood plain management authority (Melbourne Water) we were not satisfied that the proposal achieved an acceptable outcome having regard to the purpose and decision guidelines of the LSIO. The lack of evidence was a significant factor in forming our conclusion that the original proposal did not achieve an acceptable outcome and we could not be satisfied that the proposal would not adversely impact upon the area's environmental values having regard to the proposal's impact on local flood characteristics.

iii

We found that the proposal would not adversely impact upon South Yannathan Road to the extent that refusal of the application or the sealing and widening of South Yannathan Road was warranted.

iv

Having regard to that proposal's compliance with the buffer and separation distances of the Broiler Code, we found that localised amenity impacts were unlikely to be unreasonable in the context of the site's rural location.

5 The most significant differences between the current and the earlier application is that the land is now zoned Green Wedge rather than Rural, the number of sheds has been reduced from 6 to 4, the number of birds has been reduced from 300,000 to 200,000, and the sheds and associated buildings and works are proposed to be located on a different part of the site. It is significant that the sheds in the original application were located in an active overland flow area and between two water courses. In the current application the sheds have been located so that they are outside the active overland flow area and on a part of the site where inundation is caused by ponding from the local drainage system. There is therefore quite significant differences between the earlier and the current application, especially with respect to the assessment of the proposal against the purpose and decision guidelines of the LSIO.

6 Mr Tweedie provided the following detailed summary of the proposal which we adopt:

•

It is proposed to construct up to four a sheds a capacity of 50,000 birds each.

•

The maximum number of birds is proposed to be 200,000.

•

The sheds are 16.52 metres by 142 metres internally (2346m2) with metal faced insulated wall panels, concrete rat walls, external evaporative cooling pads, minimum inlet vents and air extraction fans.

•

When completed the sheds will cover less than 12% of the site.

•

The sheds will be setback approximately 540 metres from South Yannathan Road, 230 metres from the eastern boundary, 95 metres from the western boundary and 1.1 km from the rear boundary.

•

The sheds are described as "minimum ventilation tunnel" sheds.

•

This tunnel design involves a series of infinitely adjustable vents along each side wall, an external evaporative cooling system along part of the west walls, and at the eastern end to eighteen large extraction fans. Up to five side-wall mounted cross flow fans for use during the early (brooding) stage of a batch may be installed.

•

The operation of the extraction fans, the inlet vents, hot air heaters, and the evaporative cooling pads are linked through a computer controller to provide consistent fresh air, appropriate humidity, and the programmed temperature at all times.

•

Custom orb roofing is used to minimise heat transfer from direct sunlight. The ceilings, doors and end walls are insulated to further reduce heat transfer. The concrete rat walls extend below ground level to prevent entry by rodents.

•

The sheds will not have the fine mist sprays (or foggers) for cooling often found in older style sheds.

•

When required the cooling system operates in a similar manner to a household evaporative cooler drawing air through the moistened cooling pads. A fully automated feeder and drinker system will be used.

•

A dam is proposed to the west of the sheds with dimension of 60 metres by 60 metres. The application asserts that: "The dam water will be used as a back up water supply for the watering system and to water frees and landscaping areas until they are established

•

A proposed outbuilding is located to the north of the sheds,

•

A building envelope has been marked on the application plans to the north of the shed setback approximately 120 metres. No details of the dwelling have been provided.

7 The Tribunal in its earlier decision provided the following detailed description of the site and its environs which we include in this decision for completeness:

The subject land is irregular in shape with a frontage of 336 metres to South Yannathan Road. Comprising of 4 titles the site has a total area of around 101 hectares. The land is relatively flat and is currently used as a dairy farm. Some vegetation mostly in a wind-row formation is apparent on the site. Outbuildings and an existing dwelling are located in the site's northern end.

The site is bisected by the old course of the Lang Lang River which runs east to west about mid-way through the land. A second watercourse, which is known as "The Cut" or the new Lang Lang River runs along the site's southern boundary from east to west. The Cut was created to divert flows further south of part of the original course. It connects with the old course of the Lang Lang River upstream of the site to the east and reconnects with the old course of the river further downstream of the site.

8 Surrounding land uses are primarily rural in nature and generally held in broad acre farming parcels, used for dairying and other rural activities. The topography of these sites is similar to that of the review site, being generally flat, devoid of trees, paddocks are sown to pasture grasses and are traversed by man made drains which have been constructed over many years to drain surface water and to enhance the agricultural characteristics of the land. Dwellings on the surrounding properties are separated from the site of the proposed broiler sheds by the following distances:

245 South Yannathan Road: 956m

315 South Yannathan Road: 750m

270 South Yannathan Road: 890m

705 Westernport Road: 1600m

350 South Yannathan Road: 680m

270 Westernport Road: 650m

9 The course of the Old Lang Lang River, which is a perched, ephemeral watercourse, is approximately 55m to the south of the proposed sheds. The course of this river was diverted in 1923 some kilometres upstream of the review site to an alignment known as The Cut. As a consequence of this diversion The Cut contains the old Lang Lang River flows while the old river course serves as a residual drainage and flood storage function for a localised catchment.

10 The site and the surrounding area is zoned Green Wedge 1 (GWZ1). The purpose of the zones is:

To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

To recognise, protect and conserve green wedge land for its agricultural, environmental, historic, landscape, recreational and tourism opportunities, and mineral and stone resources.

To encourage use and development that is consistent with sustainable land management practices.

To encourage sustainable farming activities and provide opportunity for a variety of productive agricultural uses.

To conserve and enhance the cultural significance and character of open rural and scenic non-urban landscapes.

To protect and enhance the biodiversity of the area.

11 A permit is required to use the land for a Broiler Farm pursuant to clause 35 04-1. A condition beside the term Broiler Farm in the table of uses states that this use must meet the requirements of Clause 52.31.

12 A planning permit is required for buildings and works associated with a Section 2 use, and for buildings and works 100 metres from a waterway, wetlands or designated flood plain.

13 Decision guidelines for the use and development of land are set out under Clause 35.04-5.

14 The land is also affected by a Land Subject to Inundation Overlay ("LSIO"). Pursuant to Clause 44.04-1 a planning permit is required for buildings and works unless exempted by the provisions of a schedule to the overlay. Amendment C24 to the Cardinia Planning Scheme was gazetted on 17 March, 2005, approximately one month after the Tribunal's decision in Application for Review P186/2004. The amendment replaced the schedule to the LSIO with a new schedule, the effect of which was to introduce new permit exemption provisions for a range of buildings and works. The schedule now exempts from the need to obtain a permit, "a non-habitable building or extension to a non-habitable building, with dirt floors, provided the floor levels are at least 150 mm above the flood level". A permit is not required therefore for the construction of the broiler sheds under the LSIO.

15 A permit is required under the LSIO for the dam, earthworks and the road.

16 The application was referred to Melbourne Water as the relevant floodplain management authority under s.55 of the Act. Melbourne Water did not object to the application subject to the imposition of conditions on any permit issued.

17 Decision guidelines are set out at Clause 44.04-5 and require that when determining applications, in addition to the decision guidelines in Clause 65, decision makers must consider, as appropriate:

* The State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

* Any comments from the relevant floodplain management authority.

* Whether the proposed use or development could be located on flood-free land or land with a lesser flood hazard outside this overlay.

* The susceptibility of the development to flooding and flood damage.

* The potential flood risk to life, health and safety associated with the development.

* The frequency, duration, extent, depth and velocity of flooding of the site and accessway.

* The danger to the occupants of the development, other floodplain residents and emergency personnel if the site or accessway is flooded.

* The effect of the development on redirecting or obstructing floodwater, stormwater or drainage water and the effect of the development on reducing flood storage and increasing flood levels and flow velocities.

* The effect of the development on environmental values such as natural habitat, stream stability, erosion, water quality and sites of scientific significance.

18 Clause 52. 31 applies to the proposed use and development of land for broiler farms. The purpose of this clause 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.

19 One of the requirements of this clause is that "a broiler farm must comply with the Victorian Code for Broiler Farms, September 2001" ("the Code").

20 The Code is an incorporated document in the planning scheme

21 Clause 65 sets out decision guidelines that must be considered, as appropriate, when considering any application for permit under the scheme. Of relevance to the issues in this case are the State and Local planning policy provisions described below, the purpose of the zone and other relevant controls, the orderly planning of the area and any effect on the amenity of the area.

22 The Tribunal in its decision in Application for Review P1826/2004 provided at paragraphs 31 to 39 a summary and analysis of the applicable policy framework and that material remains relevant to the consideration of the current application. It is not necessary for us to undertake that analysis for a second time or to repeat that material here. The policy framework has not changed over the intervening period and we have relied on our earlier analysis in our consideration of the current application.

23 The parties and the witnesses at the hearing of the application for review relied on both written and oral submissions and a number of photographs, plans and other documents were tendered to the Tribunal.

24 During the course of the hearing Mr Townsend submitted that the applicant had not demonstrated that the proposal complies with the separation distances specified in the Broiler Code because the measurement of the separation distance from the centroid of the sheds rather than from the nearest broiler shed wall to the nearest sensitive land use, is dependant upon the responsible authority and, on review, the Tribunal, being satisfied that 90% or more of the total emissions from the sheds are discharged by the fans and the sheds are operated only as fan forced tunnel sheds. In Mr Townsend's submission the applicant had not provided information which would enable the Tribunal to be satisfied that this requirement will be met.

25 In response to Mr Townsend's submission Mr Peake tabled a spreadsheet of data which, in his submission, was sufficient to demonstrate that the reliance on the measurement of the separation distances from the centroid was appropriate. We issued directions requiring the applicant to provide a clarification and explanation of the data submitted. The other parties were provided with the opportunity to respond to the additional requested material.

26 Following the submission of the requested material, the responsible authority advised it did not wish to make further a submission on the matter. We did receive a submission on behalf of the objectors, which included a report prepared by Dr Bellair, an environmental scientist. Further correspondence was received on behalf of the applicant to the effect that the objector's submission and Dr Bellair's report contained material that fell outside the Tribunal's directions issued at the hearing and ought not be considered.

27 In response to these circumstances, a Directions Hearing was conducted on 25 August, 2006 to determine the future conduct of the matter in the light of the submissions received.

28 At the Directions Hearing Mr Peake reiterated his client's concern that the material included in Dr Bellair's report raised matters that fell outside the directions issued by the Tribunal and that the applicant ought to be given a further right to reply or, in the alternative, should the objectors be allowed to raise the new issues, a further hearing ought be convened.

29 The Tribunal issued the following Directions with respect to these matters:

1. By close of business on Friday 8 September 2006, the Applicant and Respondents must file with the Tribunal and serve on the Responsible Authority and each other party a draft permit condition setting out any modifications to the ventilation system of the proposed broiler sheds seen as necessary to enable application of the centroid concept as described under the Victorian Code for Broiler Farms 2001.

2. By close of business on Friday 8 September 2006, the Applicant must provide any response in writing to the matters set out in Part 6 of the report prepared by Dr Terry Bellair titled Proposed Yannathan Broiler Farm - Applicability of Centroid for Measurement of Buffer and Separation Distance August 2006. The Applicant must file with the Tribunal and serve on the Responsible Authority and Respondents a copy of any written submission.

3. Following receipt of the material described in these directions, the Tribunal will then proceed to make its final determination.

30 We will deal with the substantive issues arising out of these directions subsequently.

31 We do note that those parties who made submissions in accordance with our directions also found it necessary to make submissions and to provide us with material on matters which were clearly outside the directions we issued. We have given no consideration to that material.

32 Mr Tweedie submitted that there are two central matters requiring consideration in this application, namely whether the proposal is appropriate for the site having regard to the purpose of the GWZ1, and whether the proposal has overcome the "very high bar" which the Broiler Code sets with respect to the establishment of broiler sheds on flood liable land.

33 Mr Tweedie submitted that with respect to the zoning of the land, the GWZ1 contains very different provisions to that of the Rural Zone under which the earlier application was considered. In particular Mr Tweedie submitted that the purpose and decision guidelines of the GWZ1 places greater emphasis than does the Rural Zone on the protection or conservation of environmental values. Mr Tweedie's submission was supported by Mr Townsend.

34 On this point we find that while the GWZ1 is clearly a different zone to the Rural Zone under which the previous application was considered, the proposal nevertheless remains a permit required use in the zone and it is one of very few zones in which broiler farms are permitted. The application must be considered against the purpose and decision guidelines of the zone and for reasons we elaborate on subsequently, we are satisfied that the proposal is consistent with these zone provisions.

35 Both Mr Tweedie and Mr Townsend submitted that the application ought to fail because the applicant had not adequately addressed the potential environmental implications of the proposal. In terms of identifying these environmental implications Mr Tweedie relied on the evidence of Dr McCowan and Mr Bloink, and Mr Townsend relied on the evidence of Mr Veitz, but the evidence of these witnesses has not persuaded us that this proposal contributes to unacceptable environmental impacts which are not capable of being managed by way of permit conditions.

36 Dr McCowan's evidence was at best equivocal. With respect to flooding matters Dr McCowan stated that this was the least of his concerns and that the construction of the sheds would have no significant impact on flooding or the storage capacity of the catchment, but that there may occur some ponding below the alignment of the road. We note that Dr McCowan's assessment was based only on the construction of the sheds and that he had not included in his calculations the impact of the construction of secondary infrastructure such as the dam. Notwithstanding this, it was Dr MCowan's evidence that the proposal would be unlikely to have ".....any significant effect on flooding in adjoining properties....." The only impact he identified was that the barrier to flow created by the road and fill pad would exacerbate existing water logging problems on the pasture to the east. Dr McCowan remained opposed to the proposal on the grounds that it represented an intensification of activity in the LSIO and that this would have an adverse incremental or cumulative affect. It was his evidence that the proposal should only be approved if it could be shown that it would achieve a net gain in terms of the inundation characteristics of the area.

37 While Mr Veitz appropriately acknowledged that the site of the proposed broiler farm is a better location than that proposed in the previous application, his evidence also proceeded on the basis that the Broiler Code states that broiler farms must not be located on land subject to inundation, and that a permit should not therefore be granted.

38 As we have stated previously, the provisions of the Broiler Code do not amount to a prohibition of broiler farms on land affected by an LSIO, but the Code and Clause 15.02 of the Sate Planning Policy Framework do have the affect of alerting decision makers to the potential for such uses to give rise to adverse environmental impacts when they are proposed in flood affected areas, and that as a consequence careful consideration must be given to the assessment of applications

39 In our view Dr McCowan's evidence is tantamount to saying that nothing should be built in the LSIO unless the buildings and works achieves an increase in flood storage capacity, but this proposition is not supported by any provision of the planning scheme and it is certainly not a requirement of the LSIO. The relevant purpose of the LSIO refers to the need to "....ensure that development maintains the free passage and temporary storage of floodwaters, minimises flood damage, is compatible with the flood hazard and local drainage conditions and will not cause any significant rise in flood level or flow velocity" . There is nothing in the purposes of the LSIO which would indicate to us that it is a control which is intended to achieve an increase in flood storage capacity. The decision guidelines under the LSIO make no reference to increasing flood storage capacity as a condition of approval for development.

40 We also note that there are a wide range of structures and works including non-habitable buildings with floor levels 150 mm above the flood level, which are exempt from obtaining a permit in the LSIO, and the inclusion of these exemptions are not consistent with the achievement of increased flood storage capacity.

41 We therefore do not agree with Mr Townsend's submission that a net gain outcome is consistent with the "very high bar test" we referred to in our previous decision. Rather we are satisfied that the proposal would be consistent with the LSIO purpose of not causing "any significant rise in flood level or flow velocity".

42 Dr McCowan's evidence with respect to the impact of the proposal on the flood storage capacity of the catchment was broadly consistent with that of Mr Thomas and we agree that the proposal will have no significant effect on flood storage capacity or flooding on adjoining properties. All experts agreed that the flood characteristics are such that there are low flows (typically less than 0.5 m /second), low depths (150mm estimate) and no overtopping of the fill pad would occur. In terms of impact on flood storage capacity as a consequence of development in the catchment the impact would be barely measurable with Mr Thomas estimating an increase in flood depth of 0.8 mm.

43 The expert witnesses also agreed that the development is unlikely to result in significant increases in risk to people and property - a further matter for consideration under the LSIO.

44 Dr McCowan's principal concerns fell into the category of "environmental impacts", although he acknowledged that he has no environmental qualifications. The impacts of concern to him were stated as being increased traffic on unmade roads leading to contamination of water courses, insufficient building and works setbacks from watercourses leading to potential for contamination, and overflow from the dam and retention basin leading to watercourse contamination.

45 Mr Bloink's evidence was limited to an assessment of the potential impact of contaminants from a broiler farm entering water courses. There was no assessment of the likelihood of these contaminants from this broiler farm actually contaminating watercourses or of the likelihood of the potential impacts eventuating. The value of his evidence suffered considerably as a consequence.

46 Similarly, Mr Vietz's evidence was that insufficient information has been submitted to determine whether the proposed dam is capable of containing storm water runoff and whether the dam and other works can be constructed in accordance with Melbourne Water's requirements, in particular with respect to the proximity of the works to the Old Land Lang River. Mr Vietz shared the concern of Dr McCowan and Mr Bloink that any failure to contain contaminants on site will lead to contamination of the drainage system and ultimately Gum Scrub Creek. Mr Veitz also agreed with Dr McCowan that the construction of the road will lead to increased ponding upstream of the development.

47 To a large extent the evidence presented against this proposal amounted to little more than an exploration of worse case consequences based on a series of "what if" scenarios. Each of the witnesses conceded however that provided the broiler sheds were constructed in accordance with Melbourne Water conditions and their floor levels are elevated 600 mm above the nominated flood level, the sheds would not be inundated in a 1:100 year event. It was also conceded that surface water from a 1:100 year event can be contained within an appropriately designed detention dam.

48 We are in no doubt that contamination of water courses from broiler farm pollutants, or from any of the other numerous agricultural activities occurring in this locality, is highly undesirable from an environmental perspective. It is a somewhat obvious point and it was a point we strongly made in our decision on the earlier application. It was of little assistance to us to have Dr McCowan, Mr Bloink and Mr Veitz make the same point again. It would have been of some assistance if these witnesses had undertaken an assessment of the likelihood of the impacts actually occurring. This was not done and the evidence was reduced to little more than the expression of opinion that because there might be adverse impacts the proposal ought not proceed.

49 The concern about contamination arising from increased traffic is unfounded. As we have stated previously, the review site is located within a rural context in which the contamination of watercourses from a variety of agricultural activities has been and continues to be a daily reality. A concern about the contamination of water courses deriving from this proposal and as a consequence of an additional 1380 vehicle movements per year, simply cannot be sustained, especially given that many different types of vehicles (cars, buses, trucks, tractors) traverse these local roads and have done so for many years. Any impact on watercourse contamination of the additional traffic is inconsequential.

50 With respect to the concerns about the contamination of watercourses arising from overflow from the detention dam, we note that Melbourne Water conditions require that the outfall from the dam must be limited to predevelopment levels and that on the occasions when the dam is at capacity, the outfall will be directed to the Monomeith Catchment and ultimately by overland flow to Gum Scrub Creek. Any prospect of waterborne contamination from the dam overflow must be considered in the context that Gum Scrub Creek is 2.7 klms distant from the site of the sheds and that any overland flows draining into the creek will first traverse man made or modified drains through open pastures which have been used for many years and which continue to be used for agricultural activities including dairying and cattle grazing.

51 We agree with Mr Peake's submission that none of the witnesses called by the Council or the objectors were able to identify that contaminants may be discharged from the site or via the dam overflow, or that contaminants from any source will enter Gum Scrub Creek.

52 A consistent theme of the Council's and the objector's submissions and the evidence called on their behalf, was that insufficient documentation had been submitted to enable us to be satisfied that there would be no adverse impacts or that potential impacts are capable of being appropriately managed. Specific criticism was levelled at the lack of documentation concerning the size, configuration and location of the dam and whether it has been appropriately designed and is capable of performing its function of containing stormwater runoff. Criticism was also made about the lack of clarity around the need for a separate retarding basin, and the fact that no details had been provided to demonstrate that it can be provided.

53 The level of information submitted to us is sufficiently detailed to satisfy us that the proposal does not pose an unacceptable risk to the environment and that potential off site risks are capable of being appropriately managed. This is not a proposal in which the engineering involved in managing potential risks is so complex that we need to be presented with detailed engineering computations to demonstrate that the potential risks can be managed. The engineering is in fact quite straight forward and the detailed design issues which the Council and the objectors say is missing, are matters which are most appropriately dealt with by permit conditions requiring the design and construction of the sheds, the dam and associated infrastructure to be approved by the responsible authority and Melbourne Water.

54 We also need to comment on Mr Vietz's evidence that the location of the proposal in close proximity to the course of the Old Land Lang River, will compromise proposals to reconnect the course of the river. Mr Vietz was unable to refer us to any proposal to reconnect the river to which we can ascribe any weight. The reconnection of the river may very well be highly desirable from an environmental perspective, but it is not government policy, there is no funding allocated to it and no feasibility studies have been undertaken. While it was Mr Vietz's evidence that reconnection of the river was "likely" within the context of the Government's 2025 Healthy Rivers Strategy, we were presented with no documentation which would support this. In response to a request from the Tribunal for supporting documentation, Mr Townsend referred us to the Draft Port Phillip and Westernport Region River Health Strategy[1]. Reference to that document indicates that the Lang Lang River is described as being of low significance and in poor condition and there is no reference to any proposal to reconnect the old course of the river as part of the River Health Program. We cannot therefore accept Mr Vietz's evidence on this point. Any proposal, if it actually exists, to reconnect the river would need to be much further advanced in terms of its planning and implementation for us to be persuaded that it is anything more than a good idea which may never be implemented. A refusal of this application on this basis is untenable.

55 Finally we need to address the issue of whether the applicant is able to rely on separation distances specified in the Broiler Code measured from the centroid of the sheds rather than from the nearest broiler shed wall to the nearest sensitive land use. The Broiler Code defines a centroid in the following terms;

A centroid is the geometric centre of a group of points or a geometric shape.

The point of measurement for fan-forced sheds (or a group of fan-forced tunnel sheds aligned together with fan emission points close together) may be taken from the 'centroid' of the exhaust fans, provided that 90 per cent or more of the total emissions from the sheds are discharged by the fans and the sheds are operated only as fan-forced tunnel sheds.

The principle behind the centroid concept is that a single point is only acceptable for measurement purposes if the discharge points (fan exhausts) are located close together. Where it cannot be demonstrated that 90 per cent of the emissions will be discharged from fans in sheds operated as fan-forced tunnel sheds, the centroid concept is not applicable.

56 The submissions we received from the applicant were that for the first 23 days of a batch, the sheds can operate without fan forced emissions and in effect will operate as cross flow sheds. After day 23 when the birds in the batch have reached a certain size, fan forced emissions will be initiated and that under this arrangement the test that 90% of emissions will be discharged from fans will still be met when measured over the batch life.

57 Submissions made on behalf of the objectors were that for the first 23 days of the batch, the sheds will not operate as fan forced tunnel sheds and that the centroid concept is therefore not applicable and cannot be relied upon. The objector's submission is that the Code requires that the sheds operate as fan forced tunnel sheds at all times. The objector's submissions also disputed that compliance with the 90% test is demonstrated by the data submitted by the applicant but that in any event, this is irrelevant because the sheds are not operating only as fan forced tunnel sheds at all times as required by the Code.

58 The centroid concept was introduced as part of the Broiler Code following an extensive process undertaken by the Broiler Code Advisory Committee, the recommendations of which led to the adoption by Government of the Broiler Code and its incorporation into all planning schemes in 2001. It is not open to us to redefine the centroid concept. To the extent that there is ambiguity in the definition and about its application, we strongly suggest that the ongoing review of the Broiler Code which the Broiler Code Advisory Committee recommended be undertaken, address this issue as a matter of priority.

59 The opportunity to rely on the calculation of separation distances from the centroid arises in circumstances where the sheds are operated only as fan forced tunnel sheds, but the opportunity for the emission of a small proportion of emissions other than by way of fan forced means is also provided for. The only conclusion we can draw from this is that the Code contemplates that sheds designed as fan forced tunnel sheds will also at some time utilise other means of emission control and that this is appropriate provided that, as the definition above specifies, ".....90 per cent or more of the total emissions from the sheds are discharged by the fans......".

60 In terms of demonstrating that 90 per cent of the emissions will be discharged from fans in sheds operating as fan-forced tunnel sheds, Mr Peake's submission relied on the decision of the Tribunal in Wilshaw Farms v Baw Baw Shire Council (Application for Review No. 2001/9349, 1 November, 2001) in which the Tribunal found that

The Tribunal finds that the definition is open to interpretation, however, it is the Tribunal's view that the 90% refers to the average annual operation of the sheds and not the operation at any one time....

61 The objectors submitted that subsequent to the Tribunal's decision in the Wilshaw Farms case, the Code has been modified to include the term "tunnel" where referring to fan forced sheds. It was submitted that this modification reinforces their submission that the sheds must be obliged to operate as fan forced tunnel sheds at all times.

62 We reiterate our findings that the Code contemplates that sheds designed as fan forced tunnel sheds will also at some time utilise other means of emission control and the changes to the Code subsequent to the Wilshaw Farms decision do not affect our findings on this matter.

63 We therefore adopt the reasoning and conclusions of the Tribunal in the Wilshaw Farms case. This sets the parameters around which the extent to which fan forced tunnel sheds are capable of utilising other means of emission control. They are able to do so provided that 90 per cent or more of the total emissions from the sheds are discharged by the fans, and the figure of 90% refers to the average annual operation of the sheds and not the operation at any one time.

64 It was the applicant's submission that this test can be complied with where the sheds operate effectively as cross flow ventilation sheds for the first 23 days of the batch. Mr Peake submitted that a permit condition requiring that the side wall fans be programmed off after day 23 would be sufficient to ensure compliance with the centroid concept.

65 Whether fan forced emissions commence at day 23 of a batch or at any other time during the batch period is not the relevant test and, it seems to us, the time at which the side wall fans will need to be programmed off to achieve compliance with the 90% standard, will vary depending upon a range of circumstances. We are not therefore predisposed to imposing a condition as suggested by Mr Peake. We have however imposed a condition requiring that the broiler farm sheds must be designed and operated as a fan forced tunnel shed and that 90% or more of total emissions must be discharged by the air extraction fans located at the eastern end of the sheds over the average annual operation of the sheds.

66 To a large extent this condition merely repeats the obligation which already exists under the Broiler Code but it does have the added benefit of clarifying the basis upon which the 90% emission standard should be calculated.

67 We have imposed a permit condition to give effect to our findings on this matter.

68 It follows from the above reasons that it is our conclusion that the decision of the responsible authority should be set aside and a permit granted.

69 In deciding the conditions to be included on the permit we have had regard to the draft conditions provided to the Tribunal by the responsible authority and the submissions and evidence of the parties in addition to the matters which arise from our reasons.

70 We have not imposed conditions requiring the consolidation of the lots, a condition sought by the Council and supported by the objectors. In our view the consolidation of the lots would not achieve a planning outcome which justifies a requirement that the lots be consolidated. The consolidation of the titles will have the effect of prohibiting the dwelling associated with the broiler farm, an outcome which we think is undesirable and which would also compromise the ability to use the existing dwelling for continued use of the land for agricultural purposes.

[1] Port Phillip and Westernport Region River Health Strategy, Melbourne Water & Port Phillip & Westernport Regional Catchment Authority, Draft for Consultation, 2004.

Environment Act 1987

Schembri v Cardinia SC [2006] VCAT 2042

At a glance

Court

Decision date

Source

Judgment (64 paragraphs)

Schembri v Cardinia SC [2006] VCAT 2042 (10 October 2006)

Parties

Legislation Cited (1)