BEFORE: R. J. Young, Senior Member (Presiding) S. R. Cimino, Member

DATE OF HEARING: 1 and 2 May, 10 and 25 June and 14 August 2003

MEDIUM NEUTRAL CITATION: [2003] VCAT 1923

With respect to permit application no P02-198, the Responsible Authority's decision to refuse the grant of a permit is set aside. A permit is granted for the use and development of a rabbit farm (intensive animal husbandry) and associated caretaker's dwelling in accordance with the endorsed plans at 325 Booley Road Gheringhap. The permit must contain the following conditions:

1. Prior to the commencement of construction of the dwelling, hereby permitted, scaled plans showing the floor plan, dimensions, elevations and external cladding of the proposed dwelling shall be submitted in triplicate to the satisfaction of the Responsible Authority. Once approved, the plans shall be endorsed and form part of this planning permit.

2. Prior to the commencement of construction of the buildings and works to be used for the rabbit farm detailed scaled plans, generally in accordance with the plans numbered 2A and 2B dated 18 September 2002 lodged in the application, showing the dimensions, elevations and external cladding of all buildings and structures shall be submitted in triplicate to the satisfaction of the Responsible Authority. Once approved the plans shall be endorsed and form part of this permit.

3. The layout of the site showing the location of the proposed buildings and works as shown on the endorsed plans shall not be altered or modified without the prior written consent of the Responsible Authority.

4. Vehicular access to the dwelling and buildings and works shall be provided and maintained to the satisfaction of the Responsible Authority.

5. The dwelling must be connected to reticulated sewerage, if available. If reticulated sewerage is not available, all waste water from the dwelling must be treated and retained within the lot in accordance with the State Environment Protection Policy (Waters of Victoria) under the Environment Protection Act 1970, to the satisfaction of the Responsible Authority.

6. The dwelling must be connected to a reticulated potable water supply or have an alternative potable water supply with adequate storage for domestic use as well as for fire fighting purposes to the satisfaction of the Responsible Authority.

7. The rabbit farm shall be operated as a dry litter system only and provisions for the collection and disposal of solid waste, treatment and disposal of any liquid wastes to arise from the development and use hereby permitted, shall be in accordance with the requirements of the Environment Protection Act, the Health Act or any like subsequent statutory provisions, subject always to the conditions attached to this planning permit to the satisfaction of the Responsible Authority.

8. Prior to the commencement of any works under this permit a professionally prepared landscaping plan of the site showing proposed species of trees and shrubs shall be submitted in triplicate to the satisfaction of the Responsible Authority. Once approved the plans shall be endorsed and form part of this permit. The landscaping works shown on the approved plan shall be undertaken and maintained (with necessary replacements from time to time) to the satisfaction of the Responsible Authority.

9. Farmed rabbit numbers present on the site at any one time shall not exceed 520 breeding does, 3120 kittens, 60 bucks and 240 replacements does.

10. All delivery and collection vehicles shall attend the site between 7.00am and 6.00pm, save in the case of an emergency when feed can be delivered outside the specified hours in order to avoid rabbits being exposed to stress and suffering.

11. Manure derived from the rabbit operations shall be composted or otherwise dealt with to the satisfaction of the Responsible Authority and shall be treated and contained on site and disposed of in such a manner so as to achieve minimal odour, to the satisfaction of the Responsible Authority. The spreading of any composted manure, if authorised by the Responsible Authority, is to be limited to dry weather periods.

12. The sheds shall be constructed on an impervious base of compacted soil. At least 200mm of crushed gravel shall be provided above the base level to be used in the treatment of effluent waste. The exact depth of gravel shall be determined by the soil tests required prior to the rabbit farm development commencing.

13. Drainage lines to the satisfaction of the Responsible Authority shall be constructed to divert surface and subsoil water flow away from the rabbit sheds.

14. A management plan shall be prepared to the satisfaction of the Responsible Authority which outlines management solutions where odour, vermin, water contamination and infectious diseases become an issue. This plan shall be provided to the Responsible Authority prior to the commencement of the rabbit farm use. The management plan should provide a siting and disposal plan for rabbit mortalities. Dead rabbits, prior to off-site disposal, shall be kept frozen in a dedicated storage facility.

15. Cleaning of rabbit cages and rabbit enclosures and buildings shall be undertaken as often as required to ensure minimal odour and in a manner to ensure water seepage does not occur. Disposal of wash water shall not occur within 150 metres of a watercourse or dam and be to the satisfaction of the Responsible Authority.

16. The development and use must be undertaken in accordance with the Prevention of Cruelty to Animals Act 1986, "Code of Practice for the Intensive Husbandry of Rabbits (Victoria)" (as amended from time to time).

17. The development and use shall not cause any nuisance to persons on any adjoining land whether by way of smell, noise or other factors. The use must be conducted to the satisfaction of the Responsible Authority so that the amenity of the area is not detrimentally affected by the use, through the:

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

(b) Appearance of any buildings, works or materials;

(c) Emission of noise, smell, dust, waste water or waste products;

18. The rabbit farm development shall incorporate a temperature alarm system and each shed shall have a dual door system incorporated into the entry to ensure no escape of animals.

19. Unless approved by the Responsible Authority the dwelling authorised by this permit shall be occupied by a person who has supervision responsibilities for the rabbit farm operations authorised by this permit.

20. The permit holder shall, prior to the commencement of construction of the dwelling authorised by this permit, enter into a section 173 agreement under the Planning and Environment Act 1987 alerting future owners of the land that the dwelling is constructed within the buffer separation distance that would be applied by the Victorian Code for Broiler Farms September 2001 in consequence of the broiler farm operations being conducted on the adjoining property to the west. The agreement shall be to the satisfaction of the Responsible Authority and shall be prepared at no cost to the Responsible Authority and shall be registered on the title to the subject land.

21. This permit shall lapse if development is not commenced within a period of two (2) years from the date of issue and completed within four (4) years from the date of commencement.

The Responsible Authority is directed to issue a permit in accordance with this order.

Responsible Authority: Mr W Nelson, Solicitor of Harwood Andrews Lawyers.

Permit applicant: Mr S T C McDonald, Planning Consultant.

Respondent/objectors: Alison Anderson appeared in person on 1 and 2 May, 10 and 25 June 2003. Mr Ian Knox, Solicitor of Bowman and Knox, appeared on behalf of Mr and Mrs Anderson on 14 August 2003.

Mr D Bartlett, Director, appeared for Barter Enterprises Ltd on 1 and 2 May 2003.

EPA: Ms J Cary, Solicitor, and Mr P Durkin, EPA Officer.

1. This was an application by R and G Stout under s 77 of the Planning and Environment Act 1987 against the Golden Plains Shire Council's decision to refuse the grant of a permit with respect to permit application no. P02-198. The permit application seeks permission to use and develop land known as 325 Booley Road Gheringhap [the subject land] for the purpose of a rabbit farm or "rabbitry" (intensive animal husbandry) and associated caretaker's dwelling.

2. At the hearing Mr Nelson for the Responsible Authority, Mr McDonald for the permit applicant and Mrs Anderson tabled and spoke to written submissions to which they added further oral argument. Mr Bartlett made oral submissions speaking to some hand written notes a copy of which was provided to the Tribunal and the other parties. Mr Knox tabled and spoke to written submissions that he presented on behalf of Mr and Mrs Anderson on the last day of the hearing. Ms Cary made submissions on behalf the EPA and at the Tribunal's request, arranged for a relevant officer of the EPA, Mr P Durkin, to attend and make submissions on the proposal.

3. The parties also presented an array of other material relevant to the consideration of the merits of the proposal including photographs of the subject land and surrounding area, various plans, maps and diagrams as well as various documents appended to the submissions presented by Mr Nelson and Mr McDonald.

4. In addition to the submissions and other material, Mr McDonald called three witnesses to give evidence. The Tribunal heard evidence from Mr G White, an Environmental Consultant with expertise in odour modeling; Mr D Proctor, a consultant with considerable experience in relation to the operation of the broiler farm industry and Mr Stout, the permit applicant with respect to the proposed operation of the rabbit farm and his understanding of odour issues in the area. All three witnesses were made available for cross-examination. All of the submissions, material and evidence presented have been considered.

5. The subject land is located on the southern side of Booley Road, about 700 metres west of its intersection with Ryans Road and about 2.8 kilometres south of Gheringhap. The land is rectangular in shape with a frontage of 301.69 metres, a depth of about 800 metres along its side boundaries and an overall area of 24.14 hectares. Despite Mr Nelson's observation that it appeared that construction had commenced on a small shed in the days leading up to the hearing, the subject land is for all intents and purposes vacant and undeveloped. The land presents itself as cleared pasture, set on terrain with a mild slope and supporting little vegetation save for what appears to be relatively recent plantings towards the west side boundary.

6. Mr and Mrs Anderson operate a broiler farm on the adjoining property to the west of the subject land. According to Mrs Anderson, the broiler farm is rated to carry over 160,000 birds within the four sheds that exist on the land. The sheds are sited in pairs, generally oriented in a north-south direction with the rear corner of the south-east shed being located about 80 metres from the common boundary with the subject land. The Tribunal understand that Barter Enterprises, the company represented by Mr Bartlett, supplies the Anderson's farm with young chicks which they grow to the desired size, usually a period of about 7 weeks. The Andersons also reside on their property within a dwelling located to the west of the sheds.

7. A variety of farming and rural activities, including other broiler farms, are carried out on other adjacent or nearby properties. According to Mr Nelson's submission, other neighbouring dwellings are located about 310 metres west, 450 metres, west, 490 metres north north-east and 720 metres north-east. Booley Road has a gravel surface, in relatively good condition, with the road surface formed to drain towards table drains on both sides of the road.

8. Mr McDonald set out the details of the proposal in the following extracts from his submission:

"The application is for the use and development of the proposed site for a residence and rabbitry at 325 Booley Road, Gherighap.

The proposed residence will be sited 50 metres back from Booley Road and 10 metres off the eastern boundary of the site.

The rabbitry will comprise 9 sheds at an angle of about 60 degrees to Booley Road, in parallel and setback 50 metres from the Booley Road frontage and 75 metres from the western boundary of the site.

The sheds housing the rabbits will be constructed progressively over about 3 years.........

Each shed will be about 40 metres in length, 5 metres in width and about 5 metres apart. The rabbit sheds will be surrounded by a rabbit proof fence as well as will the isolation shed.

The rabbit sheds have a 200mm gravel filter base with a 50mm sand bed covering for compost worms to assist in waste conversions to worm castings. Castings will be removed from the sheds progressively every 3 to 4 months and either sold direct to end users or used as fertilizer on the balance of the property.

Additional buildings on site will include a machinery shed, feed and stockyard.

9. According to Mr McDonald, rabbit farming was prohibited in Australia until 1997, however, changes in legislation now allow for the commercial rabbit farming in various states including Victoria. The farming of rabbits is regulated and requires a license and the conditions under which this is done is set out in the "Code of Practice for the Intensive Farming of Rabbits Victoria". Mr McDonald went on to explain that the most favoured breed for Australian conditions is the "New Zealand White" with some British and Flemish Giants used for hybrid breeding purposes.

10. Under the Golden Plains Planning Scheme, the subject land is located within the Rural Zone, the provisions for which are found at clause 33.01. The land is also covered by the Salinity Management Overlay [SMO], the provisions for which are at clause 44.02. The Tribunal notes Mr Nelson's submission that there seems to be no evidence of salinity on the subject land and we agree that from a practical point of view, the proposal is satisfactory having regard to matters to be considered under the SMO.

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

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

To provide for the sustainable use of land for Extensive animal husbandry (including dairying and grazing) and Crop raising (including Horticulture and Timber production).

* Protection and creation of effective rural infrastructure and land resource.

* Improvement of existing agricultural techniques.

* Protection and enhancement of the bio-diversity of the area.

* Value adding to agricultural products at source.

* Promotion of economic development compatible with rural activities.

* Development of new sustainable rural enterprises.

To ensure that subdivision promotes effective land management practices and infrastructure provision.

12. The proposed rabbit farming use falls within the definition of "Intensive animal husbandry" which is embraced within "Agriculture" under the planning scheme's nesting provisions. "Agriculture (other than animal keeping, agriculture, cattle feed lot, crop raising and extensive animal husbandry)" is a Section 2 use. A permit is required for this use within the zone.

13. "Dwelling" is a Section 1 or "no permit required" use within the zone subject to three conditions being met. One of these conditions, as set out in the land use table at clause 35.01-1, is that the lot must be at least the area specified in the schedule to the zone or 40 hectares if there is no specification. At about 24 hectares, the land is well below the minimum lots size and as such the condition is not met. In circumstances where the condition is not met, "dwelling" requires a permit as it would fall within Section 2 of the land use table to the clause.

14. Further, a permit is also required under clause 35.01-3 to carry out buildings or works associated with a Section 2 use within the zone.

15. Decision guidelines for the consideration of applications to use and develop land in the Rural Zone are at clause 35.01-6 and cover general issues, rural issues, environmental issues as well as design and siting issues. The general decision guidelines at clause 65 must also be considered.

16. Amongst other things, the decision guidelines and purpose of the zone require consideration to be given to relevant policies, objectives and strategies as set out in the planning scheme's State Planning Policy Framework [SPPF] and Local Planning Policy Framework [LPPF].

17. In relation to the SPPF, it was common ground between Mr Nelson and Mr McDonald that the two most pertinent policies to the consideration of the merits of the proposal are those at clauses 17.05 (Agriculture) and 17.06.

18. The objective of the policy for agriculture at clause 17.05 is:

To ensure that the State's agricultural base is protected from the unplanned loss of high quality productive agricultural land use to permanent changes of land use and to enable the protection of productive farmland which is of high quality and strategic significance in the local or regional context.

19. Under 'General Implementation' at clause 17.05-2, the policy states, in part:

Planning should support effective agricultural production and processing infrastructure, rural industry and farm relate retailing and assist genuine farming enterprises to adjust flexibly to market changes.

Planning and responsible authorities should encourage sustainable land use.

Planning should provide encouragement for sustainable agriculture and support and assist the development of innovative approaches to sustainable practices.

20. Clause 17.06 relates to "Intensive Animal Industries". The objective at clause 17.06-1 is:

To facilitate the establishment and expansion of cattle feedlots, piggeries, poultry farms and other intensive animal industries in a manner consistent with orderly and proper planning and protection of the environment.

21. Whilst the rabbit farming industry and its code of practice are not specifically identified in the policy, it would seem to us that the planning objective applies to the consideration of this type of intensive animal industry.

22. In relation to the LPPF, at clause 21.01 the MSS states:

The economy of the Golden Plains Shire is primarily built on the agricultural sector.

Primary industry is the largest single industry in the Golden Plains Shire. On a statewide scale the Shire contains only moderate quality agricultural land. Agricultural industries in the Shire generate approximately $44 million worth of product and 14% of the workforce is employed in primary industry. Agriculture and rural employment is gradually declining in common with statewide trends in the restructuring of these industries. The requirements of traditional agriculture are rapidly changing with practices such as high input farming techniques and improves stock through genetic enhancement.

23. In relation to economic growth, the MSS [at clause 21.02] states:

The Shire has recognized the potential for growth in the intensive agricultural industries and in timber production. The issue for the Shire will be how to accommodate growth in these industries while protecting the other values that are seen as important in the Shire.

Local Planning Policy 22.03 provides guidelines for applications for the use and development of land for intensive animal husbandry which are designed to ensure that residential amenity and environmental quality is protected.

24. The policy at clause 22.03 relates to "Intensive Animal Husbandry. The policy basis states:

Many intensive animal husbandry uses are located in the Golden Plains Shire and represent an important local industry. The proper siting and design of this form of use and development is needed to ensure residential amenity and environmental quality is protected.

* To ensure intensive animal husbandry uses are suitably located.

* To ensure the use and development of land for intensive animal husbandry does not impact on the environment.

* To protect and maintain residential amenity in Residential Zones.

* To encourage quality design and appropriate siting of intensive animal husbandry developments.

26. The Tribunal also considers it relevant at this point to refer to the "Victorian Code for Broiler Farms, September 2001" [the broiler code] which is an incorporated document within the planning scheme. The broiler code is State policy and provides a basis for the planning, design, assessment, approval, construction, operation and maintenance of broiler farms in Victoria. Clause 52.31 of the scheme requires that a broiler farm must comply with the code, and further, that a permit must not be granted for a new Class C broiler farm as described in the code. Whilst this proposal does not seek permission for a broiler farm, the broiler code contains provisions relating to the establishment of sensitive land uses near an existing broiler farm. A dwelling is regarded as a sensitive use. The Tribunal agrees with Mr Nelson that the planning scheme's provisions do not require the broiler code to be applied in a mandatory way in the consideration of applications for sensitive uses on land near a broiler farm. Nonetheless, the Tribunal considers the broiler code to be relevant and of assistance in making this decision given that it specifically deals with the issue of the establishment of sensitive land uses near existing broiler farms. The Tribunal's consideration of the merits of the proposal against the broiler code is set out later in these reasons.

27. The permit application was lodged with the Responsible Authority on 13 August 2002. The application was accompanied by plans and a report describing the proposal. The Tribunal understands that in September 2002, the permit applicant amended the plans [dated 18 September 2002] and the Responsible Authority considered the merits of the application on the basis of the revised plans.

28. The Responsible Authority required notice of the permit application. The officer's report to the Responsible Authority indicates that Mr and Mrs Anderson, Barter Enterprises and the occupier of the property to the east of the subject land objected to the grant of a permit with the grounds of objection conveniently summarised in the report.

29. The Responsible Authority also forwarded a copy of the permit application to Barwon Water, the EPA and Powercor Australia for comment. These authorities did not object to the proposal. In its response, the EPA stated:

The application lacks detail but it appears that the proposed rabbit sheds will be located 300m from the nearest dwelling in Booley Road. Broiler sheds are located within this buffer. The rabbit sheds are therefore unlikely to be a source of nuisance odour at the nearest dwelling the owners of the broiler sheds [sic]. Another property is located 500m north of the proposal. EPA considers this buffer to be adequate for the rabbit sheds.

30. The EPA went on to indicate that in its view, the separation/buffer distances to the nearest dwelling required under the broiler code is 500m and suggested that the Responsible Authority refer to the provisions at pages 45 and 46 of the broiler code that relate to the establishment of sensitive land uses near broiler farms.

31. On the 2 December 2002 the Responsible Authority made its decision to refuse the grant of a permit on the following grounds:

1. That the proposed use and development is contrary to the provisions of the Victorian Code for Broiler Farms September 2001 particularly in relation to separation distances of sensitive land uses.

2. That the proposed use and development does not accord with provisions of the Local Planning Policy Framework (LPPF) particularly clause 22.03.

3. That the proposed use and development is contrary to the provisions of the State Planning Policy Framework (SPPF) particularly clause 17.05-2.

32. The application for review was filed on 17 December 2002 citing the following grounds:

1. The Victorian Code for Broiler farms does not apply to Class C broiler farms. Council has misdirected itself in applying the provisions of the Code to this application.

2. The effect of the strict application of the provisions of the Code as they apply to Class A and B Broiler farms to this application would result in an unacceptably inequitable planning outcome which would effectively sterilise the application site contrary to the intent of the code.

3. The applicant can demonstrate that there will be no adverse amenity impact on residential uses in the area from the proposed rabbitry in accordance with the provisions of the policy guidelines set out in clause 22.03 of the planning scheme.

4. The proposal meets all of the provisions of clause 17.05-2 of the State Planning Policy Framework as set out in the Planning Scheme.

33. After having considered the various matters set out in the submissions presented by the parties, the relevant matters to be considered under the planning scheme and legislation together with the details of the proposal, it is clear to us that the key issue in this matter is whether, as a matter of orderly planning, it is appropriate to allow a dwelling associated with a rural use to be located on land abutting a broiler farm when such dwelling is to be located within the separation distance that would be required under the broiler code.

34. The Andersons farm is a Class C farm under the broiler code as it fails to meet both the boundary buffer distance required and the separation distance to dwellings to the west. The classification of the Anderson farm as a Class C farm applies irrespective of whether the farm capacity is over or under 160,000 birds given that the buffer and separation distances under either scenario is not met with respect to the dwellings to the west.

35. Ms Anderson and Mr Bartlett both claimed that the broiler farm has the capacity to accommodate over 160,000 birds. The Responsible Authority agrees with this assessment. However, in considering the impact of the Anderson's farm on the proposed dwelling on the subject land, Mr McDonald sought to argue that the required separation distance under the broiler code should be based on the broiler code's requirement's for farms with a bird capacity of under 160,000. The reason for this is that the separation distance required under the broiler code is reduced from 550m for a farm with more than 160,000 birds to 500m for a farm with a capacity under 160,000 birds.

36. In support of his contention that the Anderson farm has a capacity of less than 160,000 birds Mr McDonald sought to apply his interpretation of the "Model Code of Practice for the Welfare of Animals" to advice he received from the former owner of the Anderson's farm with respect to the capacity of the two northern sheds on their land. In particular the Tribunal notes that in a letter to Mr McDonald, the former owner of the Anderson farm [Mr Wells] indicated that the two northern sheds would have a bird capacity of 66,100 birds. In written advice tendered to the Tribunal by Mr Knox, Mr Bartlett agrees that the two existing sheds have a capacity of 66,112 birds which is not really at odds with the advice given by Mr Wells. The Tribunal notes, however, that Mr Bartlett calculates that 94,448 birds can be accommodated within the two southern sheds giving the farm an overall capacity of 160,608 birds. This calculation does not take into account the proposed upgrading of the ventilation and cooling systems for the two northern sheds to be carried out in December 2003 which would increase the capacity of the farm to 165,896 birds. When consideration is given to Mr Bartlett's explanation of how bird stock is to be managed, particularly with respect to partial pick ups from each shed during the 7 week growing period to allow for the provision of smaller birds to the market and his expertise in this area, the Tribunal prefers his calculations as to the capacity of the Anderson farm and accepts that it falls within the 160,001 to 200,000 bird farm capacity for the purposes of considering the proposal against the broiler code.

37. Given the farm's capacity, under the broiler code the minimum separation distance required between "a point on the nearest broiler shed wall" to the nearest wall of the dwelling proposed on the subject land is 550m. The separation distance definition set out in the broiler code allows for this measurement to be taken from the "centroid" point in cases where fan forced tunnel sheds are aligned together with fan emission points close together. However, the Tribunal agrees with Mr McDonald that the sheds on the Anderson farm are not aligned nor are the fan emission points of the two sets of sheds close together.

38. Mr McDonald suggested that in circumstances such as this, when there are two sets of sheds both of which are to be fan forced tunnel ventilated by the end of 2003 (as indicated to us by Mr Nelson and Mr Bartlett) and the exhaust points from both sets of sheds are well separated, it would be appropriate to consider the impacts of each set of sheds (ie: as a pair) rather than the farm as a whole. If this approach was taken then the separation distance between the nearest wall of the northern sheds and the proposed dwelling would be 300 m (based on these sheds having a capacity of under 80,000 birds) whilst the distance between the proposed dwelling and southern sheds would be 400m (based on these sheds having a capacity between 80,000 and 120,000). The Tribunal understands the reasoning put forward by Mr McDonald in relation to this scenario, however, this is not something contemplated by the broiler code.

39. The broiler code includes discussion on cases where sensitive land uses are proposed near broiler farms at pages 45 and 46. Relevant extracts from the broiler code are as follows:

"When a proposal is being examined which would result in the establishment of a dwelling or other sensitive land use within the separation distance required by Table 1, the possible impact of the broiler farm on the potential new land use should be considered as follows:

* The planning authority or responsible authority should not support any application for a planning permit or rezoning of land which would:

- allow the possibility of a new dwelling or other sensitive land use being built within the separation distance of an existing broiler farm.

Any reduction in the separation distance that results from a sensitive land use being built closer to a broiler farm should only be allowed if:

* there are sound planning reasons for the distance to be varied; and

* the impact of the broiler farm on the potential sensitive land use will be no greater than if the separation distance is maintained; and

* a risk assessment (including outdoor modeling) is conducted which shows there is minimal risk of sensitive land uses being exposed to offensive odour."

40. The above section of the broiler code provides the basis upon which consideration can be given to subdivision and the establishment of sensitive land uses within the buffer and separation distances from an established broiler farm. It is relevant to consider the proposal against these criteria.

41. In relation to planning reasons, the Tribunal acknowledge that State Planning Policy Framework at clause 15.04-2 seeks to encourage the provision of suitable separation between potentially amenity reducing and sensitive land uses and developments. The policy states that Responsible Authorities should have regard to the potential for conflict between land uses within a zone due to air emission impacts. The local policy at clause 22.03 builds on this theme in its objectives and through the requirement that "no enclosures, yards or buildings in which animals are raised on an intensive raising system should be located......within 500metres of a dwelling on another property".

42. It is clear that the fundamental concern in relation to the potential conflict between the broiler farm and the proposed dwelling on the subject land is about the impact on residential amenity. However, in this case, the proposal is not essentially geared towards facilitating the residential use of the land. It is directly relevant to the consideration of the merits that this proposal is about the establishment of a rural activity on land that is appropriately zoned for this purpose. Mr Nelson conceded, quite fairly, that if the subject land were considered in isolation of surrounding uses and development, the likely conclusion would be that it is big enough to be developed as an intensive rabbit farm and further, given the nature of the activity and level of supervision required, that it would be reasonable to conclude that a dwelling should be allowed on the land for the operator of the activity.

43. Further, on reviewing the MSS, it is clear that intensive animal industries have been identified as a growth industry and important to the local economy. Policy does not discouraging this type of use from being located within the Shire, rather, it is concerned about mitigating and avoiding unreasonable amenity impacts.

44. In relation to the impact on amenity, what must be appreciated is that given the zoning of the land, any reasonable expectation as to the quality of amenity that will be enjoyed will be that of a rural area, not a residential area. Rural areas and residential areas are not the same. The purpose of the Rural Zone is not to provide for superior quality residential amenity. It has been long recognized by the Tribunal that there are likely to be many conflicts between impacts of rural activities on residential amenity. An example of this is set out in the following extract from the decision in Tylden Equipment Sales Pty Ltd and Mandinkos v Greater Dandenong City Council and Others [2001] VCAT 2239 (17 July 2001):

In relation to the third question on the amenity impacts of the proposal, the first thing that needs to be said is that because the land is zoned for rural purposes, this does not necessarily mean that it will be an area which is free from large buildings and amenity impacts such as noise and odour etc. It must be recognised that land zoned for rural purposes is not necessarily a "haven" providing for superior quality residential amenity. Rural uses, will because of the buildings they require, the equipment that needs to be used and other agricultural practices (eg: the keeping of animals, the use of fertilisers and sprays etc.) all have the potential to have an impact on amenity.

45. If this proposal was simply a dwelling associated with a hobby farm or for persons seeking a rural lifestyle experience the Tribunal would have little hesitation in rejecting such a proposal. The likelihood of conflict based on amenity expectations would be high.

46. However, the proposed dwelling is associated with a genuine farming venture, on land of a suitable size and in the most appropriate zone for such purpose. The Tribunal considers that genuine farmers have a much better understanding of the amenity that can be reasonably expected within a rural area. Based on the above, the Tribunal finds that there are sound planning reasons to support the grant of a permit for a dwelling in association with a genuine farming use on this land.

47. Turning to the criteria in the second and third dot points, the Tribunal had the benefit of considering the impacts of the proposal after hearing from Mr Durkin from the EPA and the evidence and odour modeling conducted by Mr White.

48. Mr Durkin presented his views on 14 August 2003. He is not a specialist modeler but he had been involved with the preparation of the broiler code and with the assessment of complaints. He had also been involved in the preparations for carrying out air modeling.

49. The EPA acknowledges that under normal operations in usual weather, there will be no impact from the broiler farm, however, the separation and buffer distances are prefaced on there being upset conditions and other malfunctions in the operation of the broiler farm and these need to be factored into any risk assessment. Broiler farms are expected to be operated at best practice, but this is a Class C farm, and therefore, it does not have to use best practice and so buffer distances are all the more important, Mr Durkin maintained, as there is no additional degree of safety. With a tolerant neighbour, the chance of complaints is much reduced. However, if ownership changes then the complaint environment can change and the EPA is concerned this may happen in the future. The EPA regards the basic purpose of the broiler code is to avoid problems in the future.

50. To assess the reduction in separation distance to a sensitive land use, the broiler code also recommends a field assessment. Mr Durkin accepts that what has been carried out in the field assessment by Mr White is good, however, the assessment was carried out in a strong wind whereas the broiler code recommends that any assessment be done at low wind speed, i.e. about 0.5m per second. Mr Durkin would expect the odour to be ten times less intense than in a low wind environment.

51. Mr Durkin was also concerned that the field assessment was carried out when there was only 60% of the bird numbers and this may have reduced the offsite odour impact.

52. Mr Durkin pointed out that Ms Anderson's broiler farm does not operate under an environmental management plan. Unfortunately, the audit to the site has not been done in accordance with the Chicken Care Association recommendations in that an independent auditor was not used, rather, the audits were carried out by the owner.

53. Mr Durkin accepts that there are mitigating factors that indicate that this proposal should be accepted:-

(a) there are different amenity considerations in a rural context as compared to an urban context;

(b) the likelihood that the periods of peak odours will be in the evening or early morning when people are not about and are more likely to be in bed, so 90 occasions is higher than the actual experience of the people living within the separation distance;

(c) the probability that the odour from the rabbits will mask any odour from the chickens;

(d) a lack of complaints from neighbouring farmers to the Anderson's broiler farm;

(e) katabatic drift is to the west; further, the EPA modeler used another model using a statewide data base and he also found the drift to be westerly; this would take the odour from the broiler farm away from the proposed Stout dwelling.

54. Mr Durkin was perturbed that the field assessment had detected odour 900m away under turbulent wind conditions. However, there is not a lot of information about the litter conditions on the farm at the time of the assessment and these records are not kept by the farm. It is not possible to find out how often upset conditions occur on the Anderson's farm. Currently, the Anderson's farm is not operating at best practice and he would like to see all of the requirements of the broiler code put into an Environmental Management Plan by the Anderson's and that plan complied with.

55. Mr Durkin does not believe that the Ausplume model over predicts odour levels, it just sets out the worse case, when you get a coincidence of the worst meteorological conditions and the worse farm conditions for generating odour; however, he acknowledges that the frequency of such a coincidence is unknown.

56. Mr Durkin emphasised that the katabatic drift, both the influences of the topology of the land and the modeling show the drift is away from the proposed dwelling to the west.

57. Mr Durkin also acknowledged that the test set out in the broiler code of 99.9% of the time was inconsistent with the criteria of 99.5% used to generate the buffer and separation distances in Table 1 in the code, see below.

58. The Tribunal found Mr Durkin's submissions to be relevant and is grateful for his assistance. The Tribunal acknowledges that the broiler code is a relevant consideration, however, its criteria are not mandatory in terms of determining whether the proposal should be allowed. It is acknowledged that the proposed dwelling associated with the rabbitry is well within the separation distances required by Table 1 of the broiler code. Mr Durkin noted that where the buffer or separation distances are not going to be in accord with Table 1, there is a need to carry out modeling to assess the effect of the shortfall in separation distance of the proposal will have on odour levels from the existing broiler farm at the location of the proposed sensitive land use.

59. A reading of the section on "Strategic Planning Considerations" at page 45 of the broiler code reveal that the code's emphasis is to deal with the creation of new urban areas in proximity to existing broiler farms. The raison d'etre of the broiler code was, as Mr Durkin attested, to avoid future problems resulting from this interface. The basic thrust of the broiler code is to avoid unacceptable loss of amenity due to odour when new urban areas are created in proximity to existing broiler farms. It should be noted that the current proposal is in a very different context.

60. The emphasis in this section on modeling raises a severe problem for the Tribunal as the criteria for modeling forming the qualitative foundation of the broiler code is inconsistent; Table 1 of the code sets out "deemed to comply" buffer and separation distances for new proposals from existing broiler farms and vice versa. The distances in Table 1 were calculated using an odour level not to be exceeded 99.5% of the time. Where the separation or buffer distances are not met, as in this case, the broiler code recommends that specific modeling be carried out to assess the effect of the shortfall in buffer or separation distance, see page 46 of the broiler code. The problem and inconsistency arises because the broiler code, at page 30, requires that for such site specific modeling the assessment be of the odour level that will not be exceeded 99.9% of the time. This is a far more stringent criterion than the 99.5% used to assess the distances in Table 1. Under normal conditions and on topography without discontinuities, a 99.9% criterion will always produce odour levels greater than that used to assess distances in Table 1. This means that individual modeling can never demonstrate odour levels or acceptable separation distances anywhere near those at Table 1. This inconsistency in the basic criterion undermines the soundness of the broiler code as a tool for the balanced assessment of a proposal.

61. As a consequence, the Tribunal does not consider that it can take the modeled levels of odour generation as produced by Mr White as accurate or as meaningful in comparison with the distances in Table 1. The two different criterion make any comparison futile. Rather, the Tribunal intends to use the modeling generated to assess the difference in odour levels between the location under consideration for the proposed dwelling and the odour level at the separation distance nearest to that location, in an attempt to gain some qualitative assessment of the impact of the reduction on the separation distance.

62. In the modeling produced by Mr White in July 2003, the odour contours for the 99.9% exceedance show that the projected odour level at the proposed dwelling is approximately 50 odour units whereas the projected odour level at the separation distance from Table 1 of 550m is approximately 40 odour units. When assessing the impact of odour levels of the shortfall in separation distance, the Tribunal does not consider that the difference between 40 and 50 odour units is significant in practical terms. This is particularly so, as the Tribunal considers, that like our assessment of sound levels, the human assessment of the strength of an odour is on a power scale and not an arithmetic scale.

63. When considering the effect of an existing broiler farm on the amenity of a proposed sensitive land use the broiler code also recommends that a systematic independent field assessment be carried in low dispersion weather conditions at times of peak production, see code page 46. Mr White carried out a field assessment with Mr Sceneay, an approved EPA Assessor for Odour. The assessment took place on 5 July 2003. The assessment was carried out in wind conditions of approximately 20 to 30km per hour, which are not light wind conditions. The number of birds at the Anderson farm at the time of the field assessment was 60% of the total as the Anderson's solicitor informed the Tribunal that there had been upset conditions and birds taken away earlier than normal. Mr Durkin submitted that these were shortcomings in the assessment but that nevertheless the result achieved had been carried out properly and the results could be used provided the shortcomings mentioned above were taken into account.

64. The Tribunal, like Mr Durkin, considers that there are other factors that should be taken into account when assessing this proposal in relation to the existing Anderson broiler farm, these are:

(1) the rural context introduces different amenity considerations; a farmer's amenity expectations are likely to be far more tolerant of odour than those of an urban dweller, a farmer understands and accepts the agricultural processes that are required to enable a successful rural venture to exist, and

(2) the lack of complaint from neighbouring farmers to the Anderson's broiler farm.

65. The Tribunal accepts Mr Durkin's observation that at the proposed Stout residence the odour from the rabbitry will more than likely mask odour from the existing Anderson broiler farm. The area surrounding the proposed rabbitry consists of a number of existing broiler farms of which the Anderson farm is the closest. It is an area that is developing as intensive rural industry. This development of rural industry is one of the strategic aims of the Responsible Authority and the Tribunal considers it should support such strategic considerations where possible.

66. The Tribunal accepts the findings of the field assessment as carried out and acknowledges Mr Durkin's criticisms of it. However, the Tribunal does not consider any substantial conclusions can be drawn from the field assessment.

67. The Tribunal accepts Mr Durkin's observation that in light conditions, which usually occur in evening and morning, when most residents are inside and in bed. The topography of the area of the Anderson's farm and the subject land mean that any katabatic drift in light conditions will carry the odour away from the proposed dwelling.

68. Thus far the Tribunal's consideration of odour issues has focused on the impacts of the existing broiler farm on the proposed dwelling as this was clearly the key matter in issue at the hearing. It is also relevant that consideration be given to the impact of odours generated by the proposed rabbitry. On this point the Tribunal was assisted by the modeling undertaken by Mr White and his results which clearly show that the odours generated by the proposed rabbitry are substantially less than those associated with a broiler farm and there would not be any unreasonable impact on any existing dwellings in the area.

69. It is also relevant that other than in relation to concerns about odour, neither the Responsible Authority nor the respondent objectors expressed any concerns with respect to the siting, design, appearance etc of the proposed dwelling and rabbitry sheds.

70. Thus, standing back and assessing the proposed rabbitry overall in the light of the planning scheme and the broiler code, the Tribunal considers that there is a little likelihood that there will be severe odour levels from the existing Anderson broiler farm at the proposed dwelling. Further, any odours that do exist are far less likely to generate complaints than if the proposal was in an urban context or the dwelling was essentially associated with a rural living type use. In this case, the proposal involves a dwelling associated with a farming use that is clearly appropriately located within the rural zone. The Tribunal considers that areas of developing rural industry should be encouraged and the proposal is consistent with this. Therefore, the Tribunal finds that the proposal should be approved and that the Responsible Authority be directed to issue a permit containing the conditions set out in the order.