Clauses 52.31 and 81 of the Cardinia Planning Scheme

Buttigieg v. Melton Shire Council and others [2004] VCAT 417

Stoiljkovic v Cardinia SC No. 6 [2006] VCAT 738

This application for review is refused, the decision of the responsible authority to refuse to grant a permit is affirmed and no permit is granted.

Mr. Ian Crawford, solicitor of the firm of Best Hooper Solicitors, appeared for the responsible authority.

Mr. G. Peake, barrister, appeared on the instructions of his clients for the applicant. Both representatives presented written and oral submissions.

Application under s.77 of the Planning and Environment Act 1987 (PE Act) for review of a decision of the Responsible Authority to refuse to grant a permit.

Two additional broiler sheds and ancillary works to increase the capacity of an existing broiler farm from 90,000 to 160,000 birds.

Green Wedge Zone 1 (Schedule 1) under the Cardinia Planning Scheme.

The additional two sheds do not satisfy the boundary buffer setbacks required under the Victorian Code for Broiler Farms September 2001.

The proposal will result in additional traffic impact in Racecourse Road and the intersection with Nar Nar Good Road.

The proposal will compromise the future strategic planning for the Nar Nar Goon Township and compromise the broad objectives of Melbourne 2030.

1. Existing and proposed boundary buffers will be more than adequate to minimise any odour emissions. Superior technology already implemented for the existing sheds. Very strong and documented history of inspections of farm following a few complaints. Inspections by Shire Officers have proven that any odours in area have not originated from the broiler farm - although the farm is routinely blamed.

2. No sensitive use likely on adjacent property to the south (where a permit is required in any case). Ample room for a sensitive use outside the 500 metre separation distance on the property to the south.

3. No additional sensitive use possible on adjacent property to the north as a dwelling has been constructed near the Mt Ararat Road frontage since grant of original permit.

4. The modest increase in traffic along Racecourse Road can be readily accommodated without deterioration of this rural road.

5. Existing access to and egress from Racecourse Road is satisfactory at present and will not alter with increased use.

6. The area north of the railway line at Nar Nar Goon lies well outside the recently reconsidered Urban Growth Boundary. The subject land and surrounding land is zoned Green Wedge where agricultural pursuits are to be encouraged and lifestyle or other dwellings unrelated to agricultural pursuits are to be discouraged. Application is supportive of Melbourne 2030 objectives and principles.

1 There is an existing broiler farm on the land. It is constituted by two broiler sheds. It operates pursuant to a permit granted some years ago by the Tribunal when the land was in a Rural Zone. The existing two sheds, accommodate up to 90,000 birds.

2 The owners and operators of the broiler farm seek to expand it by adding two additional broiler sheds to bring the total capacity up to 160,000 birds. An application for planning permission for such expansion was made to the responsible authority.

3 The responsible authority determined to refuse to grant a permit under several grounds including:

1. Additional sheds do not satisfy the boundary buffer setbacks required under the Victorian Code for Broiler Farms September 2001.

4 Under the relevant zone provisions found in cl.35.01-1 of the planning scheme use of land in this Green Wedge Zone 1 for a broiler farm requires a planning permit.[1] However, the relevant part of the table of uses requires that the use must meet the requirements of cl.52.31 of the planning scheme. I will refer to that clause further. Clause 35.01-3, also in the zone provisions, requires a permit for the construction or carrying out of buildings or works associated with the use in section 2 of the Table of Uses in cl.35.01-1. It is the uses in section 2 for which planning permission is required.

5 Clause 63 of the planning scheme contains the existing use provisions. The current broiler farm can continue to operate under these existing use provisions provided that certain provisos are complied with. The provisos in cl.63.05 include that the existing use may continue provided that no buildings or works are constructed or carried without a permit. No such permit is to be granted unless the buildings and works comply with any other building or works requirements of the planning scheme. Furthermore, any condition or restriction to which the use is subject, including any implied restriction on the extent of the land subject to the existing use right and the extent of activity within the use, must continue to be met. Lastly, the amenity of the area must not be damaged or further damaged by a change in the activities beyond the limited purpose of the use preserved by the existing use rights.

6 Ultimately these existing use provisions in cl.63 proved to be of little relevance.

7 Further, the "BROILER FARM" provisions in cl.52.31 (referred to in the conditions column in relation to the Table of Uses mentioned above) are of considerable importance. Relevant for present purposes are the sentences under the sub-headings "Purpose", "Scope", "Requirement" and "Exemption from notice and review". I will set them out.

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.

This clause applies to land used or developed or proposed to be used or developed for a broiler farm.

A broiler farm must comply with the Victorian Code for Broiler Farms, September 2001. [2]

A permit for a new Class C broiler farm, as described in the Victorian Code for Broiler Farms, September 2001, must not be granted after 26 September 2001.

An application for a permit is exempt from the notice requirements of Section 52(1)(a), (b) and (d), the decision requirements of Section 64(1), (2) and (3) and the review rights of Section 82(1) of the Act if the proposal meets the requirements of a Class A farm specified in the Victorian Code for Broiler Farms, September 2001.

8 The code is an incorporated document in the Cardinia planning scheme. Clause 81 of the planning scheme provides:

The documents listed in the table and in the schedule to Clause 81.01 are incorporated documents under section 6(2)(j) of the Planning and Environment Act 1987.

If a document is not included in the table or the schedule, it is not an incorporated document.

9 The code is amongst the incorporated documents set out in the table to clause 81.01.

The nature of the hearing before me on 30 March 2006

10 The hearing before me on 30 March 2006 was a preliminary hearing to determine a preliminary legal point. This hearing was conducted pursuant to an earlier direction given by a Deputy President of the Tribunal at a directions hearing on 24 February 2006.

11 The legal question to be determined is whether the proposed expansion of the existing broiler farm is prohibited under the planning scheme. The responsible authority claims that it is so prohibited. The applicants claim that the expansion, and the permit they seek for such expansion, is not prohibited, but can be considered by the Tribunal on its merits.

Argument by the responsible authority that the permission sought is prohibited

12 This broiler farm has been in existence since before the coming into operation of the Broiler Code. It is common ground between the parties that it is a Class C broiler farm under the classification of broiler farms dealt with on pages 7 and 8 of the code, and in particular, the definition of Class C farms found near the middle of page 8.

13 It will be remembered that the second sentence under the sub-heading "Requirement" in clause 52.31 provided that a new permit for Class C broiler farm as described in the code must not be granted after 26 September 2001. This purports to be a prohibition, although it is really only half of the prohibition. It does not make any sense standing alone. The prohibition only makes sense if reference is made, not only to the provisions in 52.31, but also to the Broiler Code and the definitional description of a Class C broiler farm in the code. It can fairly be said therefore that half the prohibition provision is in the planning scheme and half of it is in the code. As will become apparent, this amounts to the same thing in as much as the incorporation of the code into the planning scheme means that it becomes part of the planning scheme. This is implicit in the code, in clause 52.31 and the decision of the President in Buttigieg v Melton Shire Council and Others [2004] VCAT 417. (This case was cited and relied upon by both sides in the hearing before me). The proposition is also explicitly stated in the written submissions on behalf of the applicant.

14 Although clause 52.31 explicitly prohibits the establishment of new Class C broiler farm, it does not prohibit their expansion. The code, on page 9, contemplates at least some possibility of the expansion of a Class C broiler farm under the sub-heading "Assessment and approval requirements" in the tables thereunder. At that point the code provides:

Requirements for broiler farm development proposals are presented below. The requirements for new farms are presented in Table 2, and those for expansion of existing farms are in Table 3.

The basic requirements for an EMP, ERA and Superior Technology are outlined later in this section, and more detailed information on these requirements is provided in Appendix 3. [3]

15 Table 3 contain the requirements for expansion of existing farm of all classes, including Class C. This table, omitting the parts dealing specifically with Class A, Class B and Special Class farms, appears as follows:

Table 3. Requirements for expansion of existing farms (Class A, Class B and Special Class)

SUPERIOR TECHNOLOGY Requirements if Superior Technology is employed)

Maximum reduction of 40 percent of boundary buffer and separation distance of a Class A farm.

ERA required with modelling of odour and potential off-site dust and noise impacts.

16 I note, by the way, that Mr Crawford (who appeared on behalf of the responsible authority) pointed out that the code uses the word "requirement" when it refers to something that must be done or provided, and uses other terms where the code is giving guidance in relation to a discretionary decision. The code does purport to impose "control" provision including prohibition as well as other parts that provide guidance in relation to discretionary matters. I think that Mr Crawford is quite correct in this distinction that he draws.

17 As can be seen, the above table has four columns. The first column is headed "CLASS PRIOR TO EXPANSION". Running down the list one comes to Class C.

18 The second column is headed "CLASS AFTER EXPANSION". That column at Class C level is left blank.

19 The third column is headed "REQUIREMENT". There is an entry at Class C level in this column which reads:

Not allowed unless Superior Technology is employed."

20 The fourth column is headed "SUPERIOR TECHNOLOGY (Requirements if Superior Technology is employed)". In this column three things are specified. The setting out of the table makes it clear that these three things apply in relation to the expansion of existing farms in Class A, Class B and Class C, but not "Special Class" farms. It therefore follows that these three specifications apply to the expansion of the Class C farm as here proposed. This is emphasised by the shading of column 4 and by the use of heavy lines in the setting out of the table by the use of a heavy vertical line between column 3 and column 4 and a heavy horizontal line between Class C and Special Class. These specifications in the fourth column read as follows:

Planning permit required (following requirements applied to Class A, B and C farms).

Maximum reduction of 40 per cent of boundary buffer and separation distance of a Class A farm.

ERA required, with modelling of odour and potential off-site dust and noise impacts.

21 The crucial parts of the above tripartite quotation are the first two. The first imposes the requirement of a planning permit for the expansion of a broiler farm. This requirement does not otherwise appear in the planning scheme. The middle one imposes a constraint on such expansions. The constraint refers to 40% of the boundary buffer and separation distance for a Class A farm. The responsible authority contends, correcting in my view, that this means that an expansion of a Class C farm, (or for that matter a Class A or B farm) is only permitted if any reduction in boundary buffer or separation distance still leaves those items within 60% of the specification applicable for a Class A farm.

22 The minimum boundary buffer and separation distances for a Class A farm are specified in table 1 on page 8 of the code. The distances vary with the number of birds. It is the third category that would be relevant here namely 120,001-160,000. The concepts of boundary buffer and separation distance are defined in the code but I do not need to go to them because it is common ground between the parties that the expansion sought by the applicants would not comply with the requirements for expansion of the existing Class C farm in that it would exceed the maximum reduction of 40% of boundary buffer for a Class A farm. This farm could only provide a boundary buffer distance of a 134 metres. The specification of a boundary buffer for a Class A farm is 260 metres, 40% of that is a 104 metres and 60% of it is 156 metres. A provision of 134 metres falls 22 metres short.

23 Mr Peake (who appeared for the applicants) was pleased to refer to this as "only" 22 metres. The extent of the difference is not important in the circumstances. The maximum allowed is exceeded and therefore the requirement is not met.

24 Mr Peake claims that the requirement that his clients failed to meet is so stringent that there would be very few Class C farms that could expand under it. That may be true, but it does not alter a true interpretation and application of the relevant code provisions. If that is the result, then that is the result.

25 The nub of the case on behalf of the applicants is to say that the code provides only guidance in relation to the exercise and discretions, and does not contain any "control" provisions, and in particular, does not contain any legal prohibitions. If the code purports to contain such controls or prohibitions, then Mr Peake says that it is ultra vires (beyond power) to that extent and is therefore invalid.

26 I am satisfied that his argument is incorrect.

27 In oral argument he agreed that "control" provisions are provisions which impose prohibitions or which regulate by requiring planning permits or impose conditions or requirements and (for that matter) provisions that specifically allow things such as uses or developments. He said that these controls can be imposed in a planning scheme, but not in a code like this code.

28 What he argued in this respect is not altogether consistent with what I find in his written submissions. The written submission version is to say that prohibitions can be imposed in the planning scheme but not the code whereas regulatory provisions, for example requiring a permit, can be in either. I think his distinction in his written submissions is incorrect and without logic or other merit. I am satisfied that controls, whether prohibitory or regulatory or which specifically allow things, can be in a planning scheme, but can also be in an incorporated code and that they have the force of law when they appear in such a code.

29 Mr Peake's reason for saying that control provisions, or at least prohibitive control provisions can have the force of law only if they appear in the planning scheme, but not in the Code is based on paragraphs (b) and (j) of section 6(2) of the Planning and Environment Act 1987 (PE Act). Section 6 deals with what a planning scheme may provide for. There are several requirements for planning schemes mentioned in section 6(1). Subsection (2) goes on to say, amongst other things:

"(2) Without limiting subsection (1), the planning scheme may -

(b) regulate or prohibit the use or development of any land;

(j) apply, adopt or incorporate any document which relates to the use, development or protection of land;"

30 It is not to the point to say that there is a distinction between paragraph (b) and (j). That is obvious. One deals with incorporation pursuant to which the code has become an incorporated document. The other authorises a planning scheme to regulate or prohibit use or development of land.

31 Paragraph (b) empowers a planning scheme to regulate or prohibit, but (j) does not. It only allows incorporation.

32 As a matter of fact it does more than authorise incorporation for certain documents. It also authorises the application in the planning scheme of such a document and its adoption.

33 It is true that the Code is an incorporated document by virtue of clause 81 of the planning scheme which is authorised by section 6(2)(j). That much is common ground. However, once it is incorporated it becomes part of the planning scheme. When that has happened its control provisions, including those that relate to regulating the use and development of land and those that relate to the prohibition of the use and development of land, are given legal force as part of the planning scheme by section 6(2)(b).

34 As stated above in paragraph 13, and admitted by Mr Peake in his written submissions, once incorporated it is part of the planning scheme. It is true that it has some provisions that guide the exercise of discretion, but it also contains others, often specified as "requirements" that are mandatory controls including prohibition.

35 That, after all, is what incorporate means. Corporate relates to the body and to incorporate means to put it into the body. By incorporation the code becomes embodied in the planning scheme. It becomes part of the body of the planning scheme. Some of the definitions of the word "incorporate" say as much. Referring to the Macquarie Dictionary, Second Edition, I find the third and some subsequent definitions read as follows:

"3. to put or introduce into a body or mass as an integral part or parts. 4. to take in or include as a part or parts, as a body or mass does. 5. to form or combine into one body or uniform substance, as ingredients. 6. to embody - vi. 7. to unite or combine so as to form one body. ... 10. combined into one body, mass, or substance."

36 Thus the Code is incorporated into the planning scheme, as I have said, by clause 81 and section 6(2)(j) and its control provisions, including its prohibitions, a given force of law by being applied and adopted under section 6(2)(j) and also, once incorporated, by section 6(2)(b).

37 Mr Peake argued that the code and the planning scheme are separate documents. They may be physically, but they are not legally or conceptually, once one is incorporated into the other. There may be provisions in relation to what takes precedence in the case of inconsistency, but that does not detract from the proposition. In any case, no relevant inconsistency was referred to.

38 Mr Peake says that this interpretation might be said to take away property rights in relation to which there will need to be clear words. I find the wording and setting out, as relevant, to be sufficiently clear.

39 He says that this interpretation means that the Code overrides the planning scheme by taking away or nullifying or partly nullifying provisions in the planning scheme, including rights granted under the planning scheme to apply for permits. This argument is not valid. It may curtail some scope that would otherwise exist. That is not unusual. An application can still be made for buildings or works under the zone provisions, and perhaps under the existing use provisions in clause 62, but not such would enable an expansion of the existing Class C broiler farm. That is prohibited, in the circumstances of this case, by another part of the planning scheme namely the incorporated Code "requirements" and prohibition.

40 I consider my interpretation to be in accordance with the provisions of the Act, the planning scheme and the code. Indeed, I consider that clause 52.31 (as well as the code itself) is predicated on such an interpretation. Clause 52.31 does not make a great deal of sense without this interpretation. It is all very well for Mr Peake to say that prohibitions are in the clause and not the code, but what prohibitions are found in the clause? None, save for half of the prohibition on the establishment of new Class C farms. It is only in the second sentence in the clause under "Requirement", is read together with the code, that the prohibition makes any sense. It is not a prohibition standing alone.

41 Various other provisions in the Code were referred to, but none of them dissuade me from the interpretation I have adopted. On the contrary, they are consistent with it.

42 I was also referred to the incorporated and reference document section of the Victorian Planning Provision Practice Note dated August 2000. In particular I was referred to the passages under the sub-headings "Incorporated documents", "When should a document be incorporated?" and "How is a document incorporated into the scheme?". I will not analyse here all that I was referred to, but content myself with observing that I think what is set out there supports my interpretation.

43 I have already mentioned the decision of the President of the Tribunal in Buttigieg v Melton SC quoted and relied upon by both sides. I have read the reasons of His Honour, and consider they are in support of what I have said. I say that of the reasons generally, but I was referred particularly to paragraphs 5 and 6. Paragraph 5 reads:

"5. By reason of the language used in clause 52.31 and the fact that the code is an incorporated document, the provisions of the code, particularly those that relate to whether or not a broiler farm is a new Class C broiler farm, have effect as if they are part of the planning scheme."

44 I think this means that if the Code has a prohibition it takes effect as if it was in the planning scheme itself. In any event, on my interpretation it is in the planning scheme itself. Incorporation has made it part of the body of the planning scheme.

45 His Honour's paragraph 6 reads:

"6. When codes are incorporated into a planning scheme by reference it is desirable that those parts which are incorporated and which are intended to have mandatory effect are expressed in clear language that should characterise legal documents. Sadly, this is not always the case. It is not imperative that words that set forth a guideline be expressed in clear and unambiguous language. However when words are intended to be applied in a definitive manner so as to determine rights, it is desirable, if not essential, that the words be clear, unambiguous and certain. This is a lesson that is not of recent invention, but notwithstanding that, it is a lesson not heeded on too many occasions."

46 It is clear from this quotation that His Honour recognises that an incorporated code can contain guidelines and also contain what I have been referring to as control provisions or legal prohibitions. He refers to them as parts that have "mandatory effect" and which are intended to be applied "in a definitive manner so as to determine rights". I share His Honour's regrets about the quality of a drafting sometimes found in planning schemes and codes. No doubt it is desirable that even guideline provisions should be clear and unambiguous, although His Honour observes that is not essential. He is pointing out, somewhat regretfully, how important it is that mandatory provisions and provisions that determine rights should be clear and unambiguous. He recognises that they can be in an incorporated code and have legal effect accordingly. Of course, it may be quite difficult, or in some cases even impossible, to give effect to words intended to be mandatory or definitive of rights if they are so unclear, ambiguous and uncertain as to be ineffective. If it is possible, though difficult, to give them effect in accordance with their purpose, that should be done. In the present case I find no unclearness, ambiguity or uncertainty that troubles me.

47 I am satisfied, for the reasons given above, that the permit sought in this case is legally prohibited and therefore cannot be granted. Determining the preliminary legal question in this way in fact determine the whole case.

[1] The current operation is, however, protected by the existing permit and/or existing use rights.

[2] Hereafter referred to as "the Code" or "the Broiler Code".

[3] The meanings of EMP, ERA and Superior Technology are explained in the code but need not be further explained here.