Vukadinovic v Mount Alexander SC [2015] VCAT 1993 | Case summary

Vukadinovic v Mount Alexander SC [2015] VCAT 1993 | Case summary | Zoe

[63]

Notice of the three permit applications was given and 875 objections were received by the responsible authority. The grounds of objection in some groups of objections are in identical terms.
Council planning officers, after considering the application and objections, prepared a substantial report to the responsible authority (the council of the Shire of Mount Alexander) with recommendations that the permits be granted subject to conditions.
The responsible authority determined to refuse each of the applications upon grounds which we will refer to in due course. There is a significant overlap between the grounds of refusal and the objectors grounds of objection although they are not co-extensive.
The permit applicant, being dissatisfied with the decision to refuse the applications, has applied to the Tribunal under s 77 of the Planning and Environment Act 1987 (PE Act) for review.
The hearing has occupied, in all, 18 days during which many submissions and substantial expert evidence has been presented. We will deal with issues that have determined our decision in relation to these cases. Many of these issues concern questions of the planning merits of the proposals. By planning merits we mean the issues that arise as a result of matters contained in the PE Act, the Mount Alexander Planning Scheme including zone purposes, planning principles, policies and guidelines contained in the Planning Scheme and the Victorian Code for Broiler Farms 2009 (the Code) which is an incorporated document in relation to the planning scheme and is thus part of the planning scheme and part of the law of Victoria. We have been referred to, and have considered, various other documents.
The leading issues concern questions of possible detriment to local amenity due to odours, dust and noise. The Code is an important document in relation to those and other issues including other amenity and planning merit questions.
Several legal questions have also been disputed which involve the interpretation of provisions in the Code.
The first three days of hearing were conducted at the Law Courts in Bendigo with an on-site accompanied inspection of the land and locality occupying the fourth day. At the Bendigo hearing questions were raised about the relevance of two relocatable prefabricated houses that had been installed in close proximity to two of the proposed broiler farms very shortly before the commencement of the Bendigo hearings. Submissions made at Bendigo, and written submissions made afterwards pursuant to leave given, dealt with matters, including interpretation of the relevant part of the Code. Those matters have been dealt with in a substantial interim determination being Vukadinovic v Mount Alexander SC (No. 3)[4]. However further questions for interpretation have arisen.
The further hearing commenced at the Tribunal's premises in Melbourne on 12 October 2015. On that day the Planning and Environment Amendment (Recognising Objectors) Act 2015[5] came into operation. The relevance and effect of that amending legislation has also become a matter of dispute in these cases.

[64]

The land proposed to be used for these three broiler farms constitute a single contiguous large parcel of land with a frontage of approximately 3km to the south side of the Baringhup-West Road. The land is located approximately 2.8km west of the small settlement of Baringhup and about 8 or 9 km generally west-south-west of the historic mining town of Maldon. For the purpose of these directions we are assuming that the Baringhup-West Road runs east to west although that is not quite its true bearing.
The parcel is comprised of three farming properties each constituted by two or more allotments. The applicant, Mr Vukadinovic, owns one of these properties and has control of the other two in that he has contracts to purchase them.
The parcel constituted by these properties is a substantial area of 448.8 ha[6]. It is irregular in shape although it is almost in the shape of a rhomboid[7]. The width along the Baringhup-West Road is approximately twice its depth along its secondary frontage to the western side of Green Lane. It is approximately rectangular. Its southern boundary is to the northern side of the Baringhup-Havelock Road and its western boundary is to the eastern side of O'Keefes Road.
Within the parcel there are two small areas of Crown land with frontages to the Baringhup-West Road. The original purposes for their retention as Crown land are not clear but they are not fenced off from the farm property. They are simply used as part of each respective farm.
There is another small piece of Crown land amounting to 4,030 sq m opposite the subject land and fronting the north side of the Baringhup-West Road. This is the site of the old disused and derelict Baringhup-West State School. It is Crown land managed by the Department of Environment and Primary Industry.
The parcel and surrounding lands are part of the extensive Moolort plain which is all but flat with only slight undulations. The parcel, and surrounding lands are currently used for broad acre farming in the form of grazing and cropping.
The surrounding farming properties are similar large holdings.
There are very few trees on the parcel, which, like surrounding lands having been farmed now for over 150 years. It is not easy to recapture the situation before clearing of trees, bushes and rocks took place to accommodate cropping and the sowing of pasture species. Ecological vegetation modelling of pre-1775 conditions indicates that the area was a grassy woodland environment. Areas of volcanic deposits had stony rock surfaces. Some remnant embedded rocks occur near the south-western corner of the subject land.
The Cairn Curran Reservoir is located on the Loddon River near the Baringhup settlement. From there the Loddon River follows its course first in a generally northerly direction and then deviating to the west where it meets an intermittently flowing tributary drainage line referred to as Boundary Gully Creek. The upper reach of this drainage line runs through the south-west corner of the subject land.
The proposal, in each case, is to establish a broiler farm each of eight broiler sheds 17.6m wide, 164m long with a wall height of 2.7m and a ridge height of 4.3m. The capacity of each farm would be up to 400,000 birds so that the total for the three farms would be up to 1.2 million birds.
The sheds would have floors of compacted clay and a perimeter road 20m wide around each group of sheds would provide access to both ends avoiding the need for vehicles to reverse. These sheds are proposed to be of the modern 'tunnel' ventilation variety. Each complex would have associated facilities including low profile water tanks, feed silos, fuel storage and a stormwater retention dam.
Vehicle access would be by road from the west with crossings to the southern side of the Baringhup-West Road. The existing roads have sealed carriageways of approximately 4m and trafficable widths of 6m which takes account of a trafficable shoulder of approximately 1m on either side of the seal.
The road reserves vary from 20 to 30m. The Roads Corporation (VicRoads) initially had a concern about roads or intersections within its responsibility. The proposed routes have been revised and avoid these roads and intersections.
Farm 1 is proposed to be located in the north-west corner of the land, in the acute angle between the Baringhup-West Road and O'Keefe's Road. The broiler sheds etc are to be set back by not less than 100m from each of these boundaries to these roads. Indeed, all farms are proposed to be at least 100m from any boundary.
Farm 2 is proposed for the north-east corner formed by the intersection of Baringhup-West road with Green Lane.
Farm 3 is proposed to be toward the south of the parcel, and between the other two so far as their east-west alignment is concerned. The broiler sheds of each farm are to be more than 1,372m from those of the other two.
It is proposed that there should be two access crossings on the Baringhup-West Road. The first would be near the western end of the frontage where it could serve Farm 1 but with a driveway running further south to serve Farm 3. The right of access, so far as Farm 3 is concerned, would be protected by a right-of-way. This arrangement enables the crossings to be confined to two and avoids access to any surrounding roads apart from the Baringhup-West Road. The second crossing would be near the eastern end of the frontage where it can serve Farm 2.
The officers' report to the responsible authority[8] notes the nearest house beyond the parcel is a distance of 1200m. The submissions on behalf of Mr Vukadinovic[9] note that there is no dwelling within a kilometre of any of the proposed broiler farms. Eight are referred to, all of them are distances between 1332m and 2289m save for one at 1048m from Farm 3[10].
We have mentioned that the floors of the broiler sheds would be compacted clay. When occupied with chickens the floor would be covered with a layer of litter, typically rice husks, sawdust or the like.
Some broiler farms include the storage and composting of used litter and/or the composting of the carcasses of deceased birds. These things can present an additional potential source of odour. So can the spreading of such material, after composting, as fertiliser on surrounding land. In relation to these proposed broiler farms there is to be no such storage, composting or spreading.

[89]

The Code is a lengthy and complex document. As previously stated, it is an incorporated document in the planning scheme and as such is part of the planning scheme and part of the law of Victoria. However, legislative regulation is by no means its only purpose. It has been devised, revised and written to serve a number of practical purposes as well as being a piece of subordinate legislation under the planning scheme and ultimately under the PE Act. It is also intended to be a practical guide in relation to such complex tasks as selecting suitable sites for broiler farms, applying for planning permission for their establishment and their use and operation to achieve a suitable balance between facilitating the establishment and operation of broiler farms on the one hand and orderly and proper planning together with protection of the environment on the other.
The devising and revising of the Code has been the responsibility of a committee including people representing the industry and other stakeholders, state and local government and government organisations. It takes advantage of the experience of such participants and their officers in dealing with broiler farms, their potential and actual problems, and complaints and investigations of alleged amenity detriments including odour, dust and other issues.
It is not written in a style commonly employed in statutory drafting and some problems have arisen in other cases, and these cases, in interpreting and applying some of its provisions. Its several purposes and several audiences, need to be borne in mind in interpreting and applying it. An overly technical application of the rules of statutory interpretation used by lawyers needs to be employed with some caution. Ordinary English words and expressions likely to be familiar to and understood by the wider audience of the Code need to be understood in that context.
The name of the document is that it is a 'code' and the employment of that word implies that it is intended to deal comprehensively with its concerns rather than that it should be regarded as a supplement to other less specific and more generalised provisions. A specific code should generally be understood to deal with the various matters within its scope, and generally in preference to more generalised provisions.
Part 13 of the Code contains a glossary defining various words and expressions for the purposes of the Code. It includes 'sensitive use also known as sensitive land use'. The essential definition reads:

[132]

This part of the Code deals with Odour Environmental Risk Assessment (Odour ERA). Such assessment is required in relation to Special Class and Farm Cluster broiler farms but not the Class B farms applied for in the present proceedings. Accordingly, we pass over this part of the Code except to note that it makes reference to the State Environment Protection Policy (Air Quality Management) prepared in accordance with the Environment Protection Act 1970. The name of that document is commonly abbreviated to 'SEPP (AQM)'.
We consider the terms of the Code make it quite clear that no Odour ERA is required in relation to Class B broiler farms like those applied for here. That is a conclusion we would come to without the assist of authority although Lewis v Central Goldfields SC[22] has been cited as authority for this proposition.
We note that the Tribunal, in that case, observed that there was no 'specific' requirement for an Odour ERA in relation to a Class B farm. It appears that the Tribunal, in that case, may have been concerned not to utterly rule out the possibility of an Odour ERA in relation to a Class B farm in all possible circumstances. Without the circumstances being spelt out, it may be that there could be a case where an Odour ERA is desirable or useful or necessary in relation to a Class B farm although we could not, at present, say what such circumstances might be.
While it is true that the Code contains no 'specific' requirement for an Odour ERA in respect of a Class B farm, it is also true that it contains no general or unspecific requirement to that effect. There is, simply, no such requirement at all. The aid to interpretation that lawyers call expressio unius personae vel rel, est exclusion alterius, and which means the express mention of one person or thing is the exclusion of another, can be applied here. There is no requirement, specific, general, unspecific or at all; and that means that there is no such requirement. We see no reason to require or entertain such a requirement in these cases.
The Code specifies that an Odour ERA, when one is required, must be prepared in accordance with the requirements of the SEPP (AQM). The methodology of the SEPP (AQM) is to be followed and the design criterion of the SEPP (AQM) is to be applied. Broiler farm applications for Special Class and Farm Cluster broiler farms, where Odour ERAs are required, must also be referred to the EPA. The EPA administers the Environment Protection Act 1970 under which the SEPP (AQM) and all Environment Protection Policies are created. When such notice has been given to the EPA it is to state whether the odour ERA has been property conducted, has adequately addressed relevant odour amenity issues and is consistent with the principles of the SEPP (AQM). The responsible authority dealing with a permit application for such a farm must not accept an Odour ERA not conducted in accordance with the SEPP (AQM).
Although the Code refers to and recognises the SEPP (AQM) it is only for that limited purpose of adopting its methodology in relation to the preparation of the Odour ERA where one is required for a Special Class or Farm Cluster broiler farm application.

[147]

E1 M1.1 requires 1,000m separation of the proposed broiler sheds from a Residential Zone, Urban Growth Zone, other urban zone where housing is the primary purpose of the zone or future residential area shown on a plan incorporated in the planning scheme. This measure is satisfied in the current proposals. The nearest external edge of a proposed shed to the nearest urban zone, being the township of Baringhup, is over 2km distant.
Approved measure E1 M1.2 calls for a similar separation, but of 750m, from the boundary of a zone that provides for rural living (ie a Rural Living Zone or a Green Wedge A Zone) or future living area shown on a plan or strategy incorporated in the planning scheme. This measure too is satisfied as no such uses are present in this locality.
The two measures relate to whole zones and areas to be devoted to residential purposes or at least where living is contemplated for purposes other than conducting a farm.
The boundary set back required by E1 M1.4 is also satisfied.
E1 M1.3 relates to separation distances to nearby sensitive uses as calculated using Formula 1 of the Code. Sensitive uses include a dwelling. It is evident from this formula that the standard minimum separation distance between a farm of no more than 400,000 birds and a single dwelling will be less than that, for example, from a residential zone. For a Class B broiler farm of this size, the separation distance as calculated under Formula 1 is 686m. The scheme of the Code is that this distance is sufficient to address air quality amenity, subject to a caveat.
E1 M1.3 introduces the caveat. It is that there could be special and unusual circumstances where the standard minimum separation distance might be insufficient and might need to be greater, as the measure says, in 'some limited site specific circumstances'. Limited site specific circumstances does not imply something within, or anything like, the ordinary run of situations. The wording of this approved measure implies that typical meteorological conditions and topographical features that might occur in Victoria have been taken into account in developing Formula 1. That is certainly the submission put forward by the applicant and one we see as being logical. We agree with it.
The measure is cautiously worded in saying the minimum separation distance as determined under Formula 1 'may' need to be greater for 'some' limited site specific circumstances.
There are two difficulties about the wording of this measure. While it recognises that there 'may' need to be an extension in some limited site specific circumstances, it does not specify the circumstances in which this exception is to apply. It gives no guidance on this point and leaves it to the responsible authority, or this Tribunal on review, to make a judgment as to whether the exception should be applied. Such uncertainty is, of course, likely to give rise to both doubt and controversy, as it has done in the present case. The only help the wording of the measure offers is the example of a sensitive land use located downslope in a drainage valley.
The conjunction between 'meteorological conditions' and 'topographical features' in the measure is 'and', not 'or' or 'and/or'. Such a conjunction recognises, and directs the decision maker to consider, the interrelationship between meteorology and topography. The example of a drainage valley and the use of the phrase 'prevailing meteorological conditions' directs attention to whether there are local or regional scale conditions of an exceptional nature. That is certainly the view of the two experts Mr Pollock and Dr Cowan, who gave evidence on air quality matters and it is one that we adopt.
The second difficulty in relation to Approved measure E1 M1.3 is that, if the exception does apply, and there is to be a greater required separation distance, the measure gives no guidance as to the extent of such increase, or any principle upon which quantum such an extension might be determined. Perhaps 1m might be trifling and appropriately disregarded; but what of 50m, a kilometre, or 10kms, or 20 or 100?[29] A responsible authority or this Tribunal, is faced with a real difficulty as to where to draw the line, and the justification for drawing the line at any point that might be settled upon.
This was the same conundrum faced by the Tribunal in the Lewis case we have referred to earlier. In the circumstances of that application and the evidence presented, which is relevantly similar to that presented to us in these applications, the Tribunal concluded that it is not persuaded to prefer the evidence of either witness for comprehensive reasons that we need not delve into further here.[30]
We think that having regard to the terms of E1 M1.3, the first matter to be dealt with is whether some exceptional circumstances of meteorology and topography exists to warrant contemplation of increasing the separation distance. Only if the decision maker is satisfied that this is indeed the situation would the need arise to consider the extent of increase in this distance that would be warranted.
In addressing this first question we have been aided by the evidence of Mr Pollock and Dr Cowan, in that we find this evidence does not point to any particular exceptional circumstances that warrants an increase of the separation distances beyond those calculated under Formula 1.
We have made general observations already about the nature of the subject land and the locality more widely. Sometimes this area has been referred to as flat. The subject land lies in the area known as the Moolort Plains which name certainly implies a degree of flatness. Usefully, Mr Schutt's landscape evidence describes the Moolort Plains as a gently undulating landform with a pattern of relatively minor or low ridgelines and depressions. Some depressions are said to contain watercourses and occasional wetland areas.[31]
The subject land is consistent with this description comprising a gently undulating landform with a low north-west to south-east trending ridge and the incised drainage line Boundary Gully Creek. Local slopes fall to the north-east around Farm 2, south-west (Farm 3) and north-west (Farm 1). Regionally the topography reflects a north-westerly fall toward the Loddon River with the flanks of ranges to the east forming a border to this wide, flat valley.
Dr Cowan and Mr Pollock's evidence presupposes that the locally, the ridge and Boundary Gully Creek would have some influence on the dispersion of emissions as well as the broad setting established by the Loddon River valley. Hence they have proceeded to assess how such influences may vary the separation distances.
While we have reviewed and understood their evidence we have concluded that these conditions do not warrant variation to the Formula 1 separation distances.
Dr Cowan and Mr Pollock have applied modelling techniques that draw upon wider regional meteorological data and topography to develop wind roses and atmospheric stability conditions for the subject land and surrounds. Their modelling is in general agreement in that for approximately 45% of the time, atmospheric conditions will be stable and for 25% neutral. Both consider the percentage of stable conditions to be higher than average conditions across Victoria, but not exceptionally so. Mr Pollock's assessment indicates the stable and neutral conditions occur under air flows in an arc from the west anticlockwise to south-east and from the north-east. Dr Cowan's assessment of five years of metrological data, while not providing directional stability conditions, indicates light winds, conducive to poor dispersion, from similar directions, ie. west to south-east and from the north-east.
While at odds about the magnitude of appropriate separation distances, these conditions lead both witnesses to conclusions that adjustments to these distances would predominantly be toward the north, north-east and south-west. Dr Cowan considers that Boundary Gully Creek and the ridge lines have an influence in this outcome. Mr Pollock expresses the view that these topographic features will have much more localised affects and it is the wider valley topography and predominance of light wind/stable conditions that are influential.
We consider that Dr Cowan's more finely tuned modelling in fact supports Mr Pollock's conclusion. The selected samples of air flows over and around the site in fact indicate that sometimes these flows cross perpendicular to the ridge and creek, other times airflows follow the fall of the creek and wider topography of the plain, and other times again there are air flows in southerly or south-easterly directions, up the topographic gradient rather than with it.
We find that the combined outcomes of the assessment of topography and meteorological data points to a muted, localised influence on air flow and hence dispersion of emissions. We are therefore not persuaded that it is necessary or appropriate to consider variations to the Formula 1 separation distances as sometimes allowed under E1 M1.3.
During the course of cross-examination and in submissions it was put to us that neither Mr Pollock nor Dr Cowan are meteorologists. This is true. However they are both experienced air dispersion modellers and experts in air quality maters. It follows that they have a working understanding of meteorology sufficient to understand the influences on emissions and their movement through the air. We also note that there is no significant difference between the meteorological data each relied upon which supports our conclusion that there is no need or reason to depart form the separation distances calculated under Formula 1.
Our decision, indeed our finding, is that the exception that Approved measure E1 M1.3 makes provision for does not apply in these cases. On the contrary, it is the 686m minimum separation distance, without any extension, that applies here.
As a consequence, and while we acknowledge that Mr Pollock and Dr Cowan gave widely differing evidence leading to widely different conclusions about varying the separation distances, we find it unnecessary to consider or comment on these differences further, save to make the following observation.
At an early stage in the hearing, before any evidence had been given, objection was raised on behalf of the applicant to the evidence proposed to be given by Dr Cowan. That was on the basis that his evidence was said to be irrelevant.
In the event we heard his evidence. In view of our decision in relation to Approved measure E1 M 1.3 we can now say that we do find his evidence to be irrelevant insofar as it sought extensions and to define extensions to the Formula 1 separation distance. The only part of his evidence, and for that matter the evidence of Mr Pollock, that has proved relevant is the data they presented in relation to meteorology which, as to that aspect, confirmed our conclusion that E1 M1.3 does not apply.
However, we are in a position to say that if it did apply we would not accept the evidence of Dr Cowan or the conclusions he reached in relation to the extension of separation distances. The officers' report recorded the nearest dwelling as being 1200m from the nearest broiler shed. This was said to be 175% of the separation distance. All the other separations are greater than that, although we did note earlier a statement on behalf of the applicant that the nearest house was less than 1200m but nevertheless more than 1000m away.
The approach contended by Dr Cowan would not only extend the separation distance to include the nearest house, but a number of the others. He would take the separation distance as far as 4 to 6 km. In fact, on his criteria the Formula 1 distance of 686m would be considerably exceeded in every direction. His approach leads to conclusions that depart significantly from the Code and the provisions applied to Class B Farms. We think this arises, at least in part, from his method of estimating emissions from the sheds, As to that we agree with the evidence of Mr Pollock when he says it is too simplistic and leads to an overestimation of odour emissions. The Code may be deficient in failing to provide guidance or principles upon which an E1 M1.3 extension could be based, but we do not think that in the absence of such guidance, we should be led to accept the approach adopted by Dr Cowan or the conclusions he has reached in these cases.
Dr Cowan's evidence would also seem to be in conflict with E1 M1.1 and E1 M1.2. E1 M1.1 applies a 1000m separation distance between new Class B broiler sheds and a residential zone, where the primary purpose is residential housing, and multiple dwellings are expected. In the circumstances of Class B farms an extension of the separation distance in respect of a single sensitive use, i.e. a single dwelling, beyond 1000m would seem to us to be incongruous with this measure. The same can be said about the 750m separation distance set out in E1 M1.2. In our view, the expression of limited circumstances in E1 M1.3 when read in conjunction with E1 M1.1 and E1 M1.2 point to an expectation that only in exceptional circumstances would these measures be insufficient for addressing amenity when considering Class B farms applications. We find no such exceptional circumstances in these cases.

[150]

The Council sought to pursue its ground that the proposal broiler farms will result in detriment to the quality of natural resources in the water catchment, and biodiversity values (at least in part for the latter), by arguing that they represent a risk to water quality and the environment associated in part with the creek and wider catchment. It was put that the applications have not provided sufficient information to be satisfied that a range of planning policies about sustainable agriculture, water quality and catchment protection have been properly addressed.[33]
The Code notes that sometimes there are interrelationships between its various measures so that the Code elements should be considered as a whole.[34] We observe that these interrelationships also occur between standards and objectives. Such is the case here with respect to waterway protection which is in part related to, and dealt with by, stormwater management, both of which are addressed by separate standards under the Code but which are obviously related.
Standard E1 S2 addresses waterway protection. As such it is relevant to the grounds contended by the Council about catchment and waterway impacts. This standard contains three approved measures E1 M2.1, M2.2 and M2.3. Neither the Council's grounds nor its submissions point to any indication that these approved measures have not been met. This is because it is obvious from the plans that they have been met.
We will deal with the stormwater management requirements later.
Approved measure E1 M2.1 requires a vegetated buffer of at least 30m along waterways, within which a range of nominated activities are not to occur. E1 M2.2 requires a further clearance of 20m from the buffer zone to the nearest external edge of any broiler shed. E1 M2.3 requires the storage or disposal of solid and liquid wastes to be excluded form waterways, by 200m or 100m, depending on whether the waterway is used for potable water supply, and 800m from any potable water supply offtake controlled by a statutory authority.
Farms 1 and 3 lie closest to a waterway, namely Boundary Gully Creek. It is clear from the plans that the nearest sheds, and the pads on which the farm complexes would be constructed, are more than 200m from this waterway. Vegetation between the banks of this waterway and the sheds would be maintained, indeed some landscaping is proposed.
The Code highlights that State planning policy encourages the maintenance of at least a 30m buffer to maintain natural drainage functions, improve environmental conditions and address water quality impacts. This requirement is more than met by the proposals. Goulburn-Murray Water, Coliban Water and the North Central Catchment Management Authority have notice of these proposals and do not object, subject to the imposition of suitable conditions. No catchment authority or water authority objects to the proposal.
We are satisfied that in meeting the measures the standard for waterway protection has been met as have state and local planning policies addressing catchment related water quality protection objectives.
The Council also argued that the three proposed farms would be an impost on local water supplies and as a consequence would place the catchment under additional stress over and above that already occurring due to persistent dry conditions. Such issues are outside the considerations of the Code and we deal with them later in our reasons.

[160]

The hearings at Melbourne were conducted in accordance with the interim ruling on the basis that the prefabricated houses were to be disregarded in assessing the sensitive uses and separation distance for the three proposed 400,000 bird Class B broiler farms.
The applicant and the objectors' cases proceeded on that basis. In the submissions of the objectors it was said[38] 'As previously sited, these minimum separation distances do not overlap with each other or with any sensitive use of which the Tribunal may take notice.'
In its submissions the responsible authority seemed to reopen matters dealt with in the interim ruling. We do not think that appropriate in circumstances when all parties had ample opportunity to advance evidence and argument in relation to this and related matters referring to development opportunities on adjoining land and the two prefabricated houses.
The presiding legal practitioner member considered these matters and gave the interim decision with written reasons. We understand that the interim decision and its reasons are now subject to an appeal to the Supreme Court on a point of law. It is not appropriate to now seek to advance further argument to the Tribunal on these matters.
However, this E1 S5 standard was raised in a different way at the subsequent full hearing. The new question turns on the proper interpretation, in this context, of the word 'property' as it appears in the standard. The word also appears in other places in the Code including appearing twice in the first paragraph under 'Separation distances' in Part 4[39] and the associated approved measures. It also appears in the definition of 'Separation distance' in the glossary[40]. In that definition there is reference to 'land beyond the broiler farm property'.
Many English words have more than one meaning and more than one definition. It is frequently necessary to consider the context to determine which of several possible meanings is intended in a particular instance. It is frequently necessary to read a document like the Code as a whole to discern what a particular word or expression means in relation to a particular usage. We will consider the meanings contended for after referring further the terms of the standard and the approved measures under it.
For present purposes it is not so much existing use that is debated but rather 'likely future use and development of the land', that is to say land located beyond the broiler farm property boundary.
As previously observed, in the interim decision there was consideration of the word 'likely' and whether it is to be considered on the basis of what might be likely in the absence of a broiler farm proposal. The situation is now to be considered, not in relation to the introduced prefabricated houses, but as to the likelihood of other new dwellings in close proximity.
Approved Measure E1 M5.1 requires:

[163]

The objectors argued that 'property' here does not mean the whole of an adjoining farm if that farm is made up of a number of separate lots whether on one title or more than one title. It was argued that each individual lot is to be considered as a separate 'property', and that, to satisfy the approved measure, not more than 50% of any lot can be encompassed with the minimum separation distance.
If the neighbouring farm properties were each to be considered as a whole , then not more than 50% of any of them would have to be encompassed within the 686m minimum separation distance of any of the three broiler farms. On that basis the approved measure is handsomely met and the complaint of failure to meet standard E1 S5 will not be justified.
The objectors argued that, if 'property' in the context of the measure means 'lot' as opposed to the whole of a neighbouring farm, then this 50% rule is not satisfied. There are a number of farms which, in ordinary parlance, might be referred to as 'Mr Blogg's farm' or 'Mr Blogg's property' or 'Mr Blogg's farming property', but which are comprised of a number of lots. Some of these lots are small so that, considering the lots individually, some of them will be encompassed as more than 50% of their area by the separation distance of one or other of the broiler farms. It appears, from the cadastral information provided, that some small allotments near the proposed broiler farms, though being part of larger farm properties, would be covered to 100% of their area. On the basis that it is said that each such lot constitutes a separate 'property'; each of them will, it is argued, have its development 'rights' curtailed.
Actually the standard refers to 'likely' future use and development. It is most unlikely that an active genuine farming property, that happened to be constituted by perhaps 20 small allotments, would be developed by the construction of 20 houses, one on each. That would be more unlikely if there is ample other space on the farm equally or better suited to being the site for an additional house if one is genuinely needed for farming purposes.
As we have set out earlier, it should be remembered that a proliferation of rural houses, constructed and used for what are really residential purposes, as opposed to being ancillary aspect of the conduct of a farm, is contrary to proper and orderly rural planning. This has been recognised for decades, and would be an outcome contrary to the purposes of the farming zone previously referred to.
These long standing policies have expression in both state and local policy frameworks. Clause 11.05-3 is in the state provisions relates to Rural productivity. Its Objective reads:

[207]

The Council also argued that this region often experiences dry conditions with recent low water flows into Cairn Currun Reservoir being one example. The Council apprehends that increased demands for water for the three farms would add to the stress on the Loddon River system, including Cairn Currn Reservoir, an outcome at odds with planning policy for sustainable catchment management.
The issue of impacts on resources, is not a matter that is of direct relevance to the elements of the Code. However, insofar as it may be relevant to the overall management of the operations and to planning policy, we note that the Council fails to appreciate that the proposed farms do not lie upstream of Cairn Curran Reservoir and would have no direct supply drawn from it or the Loddon River System. The farms will be dependent on the collection of runoff from roofs and areas within the farm pads. If this supply is insufficient, further supplies are proposed to be drawn from an existing licensed groundwater bore.
In terms of the impact of flows in the Loddon River system down stream of Cairn Curran, Dr McCowan's evidence is that the volume of water to be captured and re-used at each farm will be less than 0.1% of overall flows that occur from each farm prior to development and immeasurably small in the overall contributions of flow in the Loddon River System.
We accept this expert evidence. Council's apprehension of any impact, let alone a significant impact, on flows within the Loddon River catchment is not supported by a proper hydrological assessment as conducted by Dr McCowan.
Dr McCowan's evidence also addressed standard E2 S5 and the associated measures. His evidence highlights that:
- Bunds and graded drains will be used to direct runoff from around the farm developments in satisfaction of approved measure E2 M5.1.
- Roof runoff hardstand for each farm will be directed into a retention dam for treatment and reuse in the sheds and facilities. While providing water supply this system of drains and dams meets the requirements of approved measures E2 M5.1, M5.2 and M5.3.
- The retention dams are designed with capacity to store up to a 1 in 100 year storm event, but depending on antecedent conditions, some outflow can be experienced. Water balance calculations based on 65 years of historical rainfall data indicates that such overflow events would most probably occur once every 10 to 11 years, thereby meeting approved measure E2 M5.6 to retain runoff from a 1 in 10 year event.
- Any outflows form the dams would be controlled by a designed spillway and graded dispersion banks that would disperse outflows rather than have such flows occur in a channelized form. This would satisfy approved measure E2 M5.4 to control erosion.
We are satisfied from such evidence that the management of stormwater in accordance with Standard E2 S5 can and will be achieved at each of the farms. Dr McCowan's assessments are, in our view, soundly based and they withstood thorough examination by the council and Tribunal. We note in particular that the proposed dams will be an important component of the operation in supplying water to the farm operation. As such, the system will need to capture and retain as much water as possible. Dr McCowan's evidence demonstrates that this can be achieved without adverse impacts to the wider catchment. If in the rare event overflows occur because of extremely wet conditions, the system of spillways and dispersion banks, coupled with stormwater then having to pass over more than 200m of vegetated buffers, are outcomes sought not only in the Code but under planning policy we have referred to earlier.
For the sake of completeness we note that approved measure E2 M5.5 requires a stormwater management plan to be consistent with any stormwater management plan of the responsible authority. While the council referred to various planning policies it made no mention of any 'stormwater management plan'. We are satisfied from prior consideration in respect to other measures and Dr McCowan's assessments that the management of stormwater at each farm accords with best practice, and so can be taken to be satisfactory.

[220]

This is an open rural landscape over an all but flat plain. It is pleasant but by no means unique. It has not been recognised in the Mount Alexander Planning Scheme as a place of particular natural beauty or environmental significance and there is no Significant Landscape Overlay in the planning scheme. Such overlays are common in the area covered by the Mount Alexander Planning Scheme, but not here.
In this case there is ample space for substantial planting so that it need not be in a dense hedge-like barrier along the frontage to public roads (there being no other highly exposed site boundaries). A similar screening, filtering and softening effect can be better achieved in these cases by spreading out the belt of planting so as to achieve a more natural and more aesthetically pleasing effect that accords with the character of the plain described by Mr Schutt. The proposed landscape plan adopts this approach. If this might be said not to be a dense planting along a road frontage according with approved measure E4 M1.1, then it is an alternative, and superior method that better achieves the standard and objective.
Approved measure E4 M1.2 requires the landscape plan to incorporate a mix of trees and large shrubs to ensure affective upper level and lower level screening. The submitted plan responds to this.
Approved measure E4 M1.3 seeks 'as far as possible' that the landscape plan retain existing trees, particularly native vegetation, and a mix of native and local indigenous plant species that blend into the landscape.
There is very little that has survived in the way of existing trees but the landscape plan proposes to restore local indigenous species.
Approved measure E4 M1.4 concerns mounding and does not call for comment here, as no screening mounds are proposed.
Broiler farms employing tunnel sheds are large in that such sheds are unusually long, although not particularly high, so far as farm buildings and facilities are concerned. Suitable siting, muted colouring and approved screening and softening are appropriate.
Farm buildings and structures, including large ones, are to be anticipated in farming zones devoted to various forms of agricultural activity. Some such structures are large and some, like wheat storage facilities, are large and tall enough to be particularly prominent.
Some broiler farm facilities, such as feed storage, are taller than broiler sheds but are of narrow compass and acceptable in a farming context. We consider that when viewed with the landscaped condition around each farm, while noticeable, there will be no detriment to the wider landscape context of this location.
We consider these proposals to be acceptable in relation to landscape and landscaping, in terms of element 4 and generally.

[226]

Standard E6 S1 requires an EMP to be developed and details the various components that are to be included in same. Two approval measures are associated with this standard. The first, E6 M1.1, requires a site specific EMP to be developed in an approved generic form, with any departures from the generic form supported by justification. Approved measure E6 M1.2 requires the operator/farmer to operate and maintain the EMP. Auditing of the farm operations, as set out in Part 8 of the Code, seeks to ensure the EMP is complied with and that the EMP is adequate.
It acknowledges the primary role that an EMP will have in addressing the ongoing management of the farms and environmental risks[54].
The council complains however that the EMPs included in the application material are based 'almost entirely on a generic EMP with little regard given to site specific matters. It submits that the EMPs are therefore 'grossly inadequate' and any revision goes beyond minor amendments. While it is acknowledged this inadequacy can be rectified, the council holds the view that, in the totality of other inadequacies in the proposals, the general nature of the EMP, adds further to grounds why the proposal are ill conceived. In allegedly failing to adequately address Element 6, the council says that the proposal is not compliant with the Code and therefore cannot be granted a permit.
We agree that the EMPs as presented are largely generic; likely reflecting their derivation from the approved generic EMP which the Code directs applicants to use in addressing this element. We are not troubled however that there are some deficiencies. It is evident that during the course of these proceedings some elements of the proposal, such as establishing and maintaining landscaping, have been amended. Other elements such as maintenance of access and stormwater management have been subject to further assessment and design. As such, as is often the situation in matters like these proceedings, an EMP or other forms of management plan will require revision.
The revision of an EMP for these three farms will in our view, benefit from the additional material. That they need revision is thus not grounds for refusal but rather reason to ensure appropriate permit conditions.

[230]

Actually, it is Clause 52.31 that, we think, the Tribunal had in mind, as that is the clause dealing with broiler farms and the Code.
These documents recognise each other. We were referred to the relevant part of the SEPP where, at Note 9, following the table in Schedule A, it reads:
1. For industries involving intensive animal husbandry, an integrated set of criteria may be applied to ensure beneficial uses are protected. The set of criteria should include:
  - Location in an area with a low density of sensitive land uses. That is, premises must be located in a rural zone;
  - The location is consistent with integrated land use planning considerations such as the long term future of the surrounding land and the likely use of the intervening land between the proposal and sensitive uses.
  - Works designed in accordance with a set of industry performance standards approved by the relevant authorities;
  - Operations conducted in accordance with an environmental management plan (EMP) approved by the relevant authority; and
  - Completion of a risk assessment that includes modelling for emissions showing that the predicted maximum odour levels modelled in accordance with Schedule C do not exceed five times the odour detection threshold (3 - minute averaging time, 99.9 percentile) at or beyond the property boundary.
It is put on behalf of the applicant[56] that relevant examples of such integrated criteria adopted for intensive animal husbandry are:
- Victorian Code for Cattle Feed Lots 1995;
- Victorian Code for Broiler Farms 2009;
- Code of Practice: Piggeries 1992.
The question was considered in Krusic-Golub v Golden Plains SC[57]. That was an application for five Class B farms as that concept was defined in the 2001 Code, that being the Code applicable at that time. They were Class B farms, not Special Farms as then defined. The current Code category of farm cluster did not exist under the 2001 Code.
It was argued that the proposal had to comply with the SEPP (AQM). Reference was made to Section 84B PE Act. Section 84B(2) provides:

[239]

The Tribunal accepted the 2001 Code as an 'integrated set of criteria for the purposes of Note 9'. That last comment implies a distinction between such a thing and a protocol. A protocol is a Protocol for Environmental Management (a PEM) which is developed by the EPA and incorporated into the SEPP (AQM) in accordance with Clauses 15, 16 and 17 of the SEPP (AQM). We are satisfied that the Code reflects and adopts the approval of the integrated criteria set out in the SEPP (AQM) including the use of emissions modelling and risk assessments.
The fact that a risk assessment on emissions modelling is not always required under the Code reflects a more considered approach within the Code in dealing with air quality matters. In effect the Code escalates the level of sophistication in assessing air quality impacts as the potential risk increases. It is also relevant to note here that while the SEPP (AQM) recommendations for an integrated criteria includes modelling to show that predicted maximum odour levels do not exceed five times the odour detection threshold at and beyond the property boundary, Schedule C of the SEPP (AQM) provides an approach to assess and adjudicate the impacts of emissions when such a criteria is not met.
We find therefore that when both documents are read as a whole the Code is consistent with, and can be seen to give effect to, the SEPP (AQM). As such, in applying the Code, the responsible authority and the Tribunal are satisfying the requirement of the PE Act to do the same.
It was said, on behalf of the applicant, that the Krustic-Golub case has since been followed by the Tribunal on these matters. Without having researched that history we note that it is referred to with approval in two of the cases to which we were referred in the course of the hearing. They are Lemic v Colac Otway SC[59] and Barac v Strathbgie SC[60]. Both these cases came under the 2009 Code and each of them required Odour ERA, the former being for a Special Class farm of apparently 640,000 birds and the latter for a Farm Cluster because of the proximity of two proposed farms to each other and to other existing broiler farms.
In the Lemic case both Dr Cowen and Dr Pollock gave evidence. At paragraph [35] of its reasons, after discussing the SEPP (AQM), the Tribunal said:

[248]

We have dealt with on-site vehicle movements and parking but questions are also raised in relation to the use of the Baringhup-West Road and other connecting roads to the west to be used by trucks visiting the sites for the purpose of the broiler farm uses.
It needs to be remembered that public highways like these roads are provided and intended for the use of citizens as required. The traffic volume capacity of the road network to be utilised far exceeds current demands and that will continue to be the case, whether or not these proposals proceed. Vehicle congestion is not to be anticipated.
It is quite legitimate for trucks, as well as other vehicles, to use roads for through travel as well as for access to dwellings, farms and other activities.
Suggestions of danger are not warranted. The roads are generally straight and the topography generally flat. Sight lines are good with no unusual danger spots, blind turns or crests.
It is always possible for an accident to occur, even in the safest road situation. All that is needed is some driver inattention. Accidents can happen, due to such circumstances, at any time or place. The point is that there is no unusual danger here. Numbers of vehicle, including trucks, are few having regard to the road capacity.
The dwellings under consideration are few and located far from the road, certainly in the immediate vicinity of these proposed broiler farms. Although some traffic noise and dust can be generated if vehicles leave sealed surfaces to avoid on-coming traffic, that is to be expected in a farming area. Dwellings are sufficiently remote not to suffer amenity detriments.
Trucks to pick up grown birds arrive and leave at night when less other traffic is to be anticipated.
Headlights can be a problem in closely settled urban areas, particularly if any vehicles regularly depart premises on a path that will shine headlights into the living or bedrooms of adjacent dwellings. Nothing of that sort is anticipated here.
It is true that vehicles, including trucks, that might ordinarily drive along the sealed centre section of country roads may have to divert partly onto gravel shoulders when encountering on-coming traffic. That is the situation now and can continue in the future, particularly considering the limited number of extra vehicles involved. There is no unusual or unacceptable danger in such manoeuvres.
The droving of livestock on public roads is much less common than once was the case. It is not an activity normally carried out during the hours of darkness. If there is droving on these roads it has to accommodate other vehicles now, and can accommodate broiler farm vehicles in similar fashion.
All of the above deal with issues raised by objectors, however we conclude that they are not reasons to refuse permits for these three broiler farms.
There are issues in relation to some testing, upgrading and maintenance of public roads. These are matters pursued by the Council, but not so much as reasons to refuse a permit, but rather the extent of works that may be required because of the traffic generated by the three farms and apportionment of costs and responsibilities. However these are matters to be dealt with by the imposition of conditions. The question of satisfactory form of conditions was dealt with in the latter stages of the hearing.
Although some extra traffic will be generated, it is moderate in degree and we do not see that it amounts to a basis for refusal of these applications when appropriate conditions are imposed.
We note that it is proposed that truck movements are to be right turn in and left turn out. It will do no great harm if the occasional driver, with a destination to the east, turns to the right from either crossing.

[249]

The objectors state that the three farms have the potential to impact on communities of Spiny Rice-flower, Matted Flax Lilly and habitat that supports Striped Legless Lizard. These are species that are of state and national significance being listed variously under the Flora and Fauna Guarantee Act (Vic), the Victorian Advisory Lists of Rare or Threatened Fauna and/or Plants and/or the Environment Protection Biodiversity Conservation Act (Cth) 1999. The objectors say, as does the Council, that ecological assessments conducted for the applications are deficient and have failed to account for relevant impacts.
Mr Trengrove and Mr Organ conducted the ecological assessments for the applicant and objectors respectively. Each was called to give evidence.
While there is competing evidence that arises from each of these experts and the position of the different parties, there is also a high degree of agreement. Both witnesses agree that large areas of the land have been subject to historical agricultural use that has resulted in there now being little native vegetation or habitat.
Further, following additional assessment work, Mr Trengrove agrees that communities identified by Mr Organ are present and there is the potential for striped legless lizard habitat, although in respect to the latter he perceives such habitat arises from displaced stones rather than natural habitat.
Regardless of the technical differences, Mr Organ agrees that steps should be taken to address the potential impacts of the three farms, by amongst other things:
- amending the access to Farm 2 following survey of the two flora species so as to avoid their removal;
- survey of the location of Farm 3 works area to identify, and if found, relocate or otherwise manage, any striped legless lizards found in the area; and
- in association with Farm 3, manage (if necessary) a suitable area for relocating striped legless lizards which he has identified in the south-west corner of the subject land near Boundary Gully Creek.
Mr Organ's evidence highlights that any potential impact on species listed under the Environment Protection Biodiversity Conservation Act will require a referral to the Commonwealth. The objectors say that such a referral introduces uncertainty because the Commonwealth may require amendments to the proposal, such as moving the farms. The consequences of such a requirements, were this to happen, are well understood by the Tribunal. However we do not consider that such a consequence follows from Mr Organ's evidence.
Rather, we understand his evidence to be that the impacts to listed flora species near the access to Farm 2 can be addressed by moving that access. Even without the additional assessment by Mr Trengrove, he has identified gaps in these clusters of flora species. We understand that sufficient frontage to Baringhup-West Road is available to relocate this access without having to move Farm 2.
Mr Organ gave evidence that in his experience the Commonwealth is likely to be satisfied with a relocation strategy for striped legless lizards if habitat and members of the species are found within the footprint of the development. The applicant does not resist conditions to undertake such an exercise.
We cannot second guess the requirements of the Commonwealth and under the Environment Protection Biodiversity Act. For our state jurisdictional purposes we are satisfied from Mr Organ's evidence that potential biodiversity impacts can be satisfactorily managed. Matters of a Commonwealth nature will require referral and if outcomes are different to those anticipated by Mr Organ, then the applicant will need to redress them. We cannot dictate nor accommodate the interplay of Commonwealth and State legislation or how the applicant wishes to address these requirements. Ultimately all relevant laws must be complied with. If the legal requirements of Commonwealth law cannot be accommodated the third broiler farm will not be able to proceed.
In the circumstances these concerns do not warrant refusal of these applications.

[252]

On 5 November 2014 the responsible authority issued three Notices of Refusal to Grant a Permit, one in relation to each of these cases, and each on the following grounds
1. The proposal does not comply with Clause 10.02 of the Mount Alexander Planning Scheme as the proposal will not provide for fair, orderly, economic or sustainable use and development of the land
2. The proposal fails to comply with Clause 10.04 (Integrated Decision Making) as the proposal has not demonstrated a 'net community benefit' due to offsite impacts of the proposal including economic impacts, vehicle movements, odour, impact on existing landscape and bio-diversity.
3. The proposal fails to comply with Clause 13.02 (flood plains) of the Mount Alexander Planning Scheme as floodwaters from the site will be detrimental to existing catchment areas.
4. The proposal fails to comply with Clause 14.01 (Agriculture) as the proposal fails to protect productive agricultural land which is of local significance.
5. The proposal does not comply with Clause 21.04-7 (Protection of Bio-diversity and Landscape) of the Mount Alexander Planning Scheme as the proposal fails to protect the existing bio-diversity and landscape surrounding the site.
6. The proposal does not comply with Clause 22.013 (Catchment and Land Protection) of the Mount Alexander Planning Scheme as the proposal will result in detriment to the quality of natural resources in the water catchment.
7. The proposal fails to comply with Clause 65 of the Mount Alexander Planning Scheme as the proposal will affect the amenity of the area due to increased traffic movements, odour, dust, visual amenity and noise.
The above grounds are highly repetitive. They mention a number of specific matters that we have already dealt with. We mean traffic and vehicle movements, odour, visual amenity and landscape, bio-diversity, dust and noise.
The first two refer to Clause 10 in the State Policy Framework. That clause and other provisions in the State Policy Framework are of considerable importance, and from more than one point of view. Their importance is not limited to decisions to be made on the planning merits in relation to particular planning applications. They are also important in relation to the deliberations of planning authorities. Municipal councils act as responsible authorities in relation to the administration of planning schemes, including the granting of permits; but also as planning authorities in relation to proposals to amend planning scheme provisions. These matters need to be borne in mind by a municipal council when acting in either capacity, and by this Tribunal in determining review proceedings in relation to planning permit applications. We have borne them in mind accordingly.
However, the first two grounds specified by the responsible authority in relation to the present cases are so general in nature as to give no guidance as to why, at least in relation to those grounds, the responsible authority determined to refuse the applications.
Grounds 3 and 6 deal with matters in relation to water including flood waters and water catchments. We have already touched on such questions. We note that there is no overlay here in relation to land that is subject to inundation and questions of flooding were not really pursued. In any event, the plans, proposed conditions and, indeed, Code provisions provide for and require suitable arrangements of this sort.
Ground 4 claims that the proposal fails to protect productive agricultural land which is of local significance. This ground has not been justified. The proposed use, buildings and works associated with the proposed broiler farms apply to only a tiny percentage of the total area concerned. Something in the order of 96% will continue to be as available as it ever was for productive agricultural activities such as grazing and cropping. As to the remaining 4%, far from depleting the agricultural capacity of that part of the land, the proposals would intensify the productive agricultural capacity of the land enormously.
We do not find the grounds relied upon by the responsible authority to have been substantiated.

[256]

application inadequacies; 2. non-compliance of the application with the Broiler Code; 3. health and bio-security; 4. proposal will set a precedent; 5. effect on agricultural soils; 6. proximity to declared areas of Aboriginal cultural sensitivity.
Most of these issues, and indeed most of the important ones, are also mentioned in the grounds of the responsible authority and have been dealt with in our above reasons. We will here pass over those matters and comment only on other matters where we consider that to be warranted. The above is not a summary limited to the grounds of the objectors who were represented at the hearing, and they refer to objections lodged before the responsible authority made its decision, and considerably before the hearing. Accordingly, some of these matters may have been remedied by the time of the hearing. For example, points m and n above refer to alleged inadequacies in the permit application. Such points were mentioned by only 2% of all objectors. They were not pursued or relied upon at the hearing and would, in all probability, have been remedied then if that had not happened before hand.
Point l refers to animal welfare. The Code does not deal with that question, observing that other legislation is applicable. The same is true as to alleged risks associated with chemical storage, handling and disposal referred to in point g.
We suppose that the foundations of a heritage building referred to in point b must refer to the long discontinued Baringhup West primary school. We are not aware of there having been any recognition of that structure as being of heritage significance, either under a heritage overlay under the planning scheme, or otherwise. Furthermore, no evidence has been advanced to substantiate the proposition that there may be adverse impacts on its foundation. It is fair to say that this matter has not been pursued.
It is an exaggeration to say that the proposal would destroy a pristine rural environment. The present situation is not 'pristine'. It is an environment that once contained native flora and fauna habitat, and has, since European settlement evolved into a working agricultural environment. The proposals would occasion some further changes, but they are changes that we consider to be acceptable.
Point j refers to tourism impacts on Baringhup as well as Maldon (and Cairn Curran Reservoir) which we have already referred to.
As to k, property values have long since been recognised as not planning matters. Negative economic affects have not been demonstrated. Of course, these undertakings, if they come into operation, may well have positive employment and economic effects in the locality sustaining, and perhaps increasing, population, employment and income (even council rates). A case has not been established, or seriously pursued, in relation to this aspect.
We take health and bio-security, mentioned in point o, to relate to the prospective broiler population. Proper management, in accordance with the Code (which has reference to bio-security) should reassure such apprehensions.
As to point p, mentioning precedents, the question is whether these proposals are acceptable. If so they should receive planning permission in the expectation that the responsible authority, or this Tribunal on review, will refuse any subsequent ones that are inappropriate.
As to q, it has not been demonstrated that there would be any adverse effect on agricultural soils, save for a tiny percentage of the parcel to be covered by buildings and works. That is acceptable in the circumstances.
The question of Aboriginal cultural heritage, mentioned in r, was dealt with in the interim determination previously referred to, and is not now a concern.

[257]

Ms Zoe Mithen was not an objector and is not a party. However, she presented written submissions and a reply pursuant to leave given to her. She is clearly an intelligent, responsible and widely read citizen who has devoted considerable time and effort to attending a substantial part of the hearing and in presenting submissions. Her submissions were discursive and ranged widely over legal history with references including to the Roman Emperor Justinian and Sir Thomas More as Chancellor of England together with jurisprudence, philosophy and her understanding of the law. She supports the case put by the responsible authority and the objectors but the central burden of what she put to us relates to greenhouse gas emissions and global warming which, she claimed, had been otherwise overlooked. She is concerned about the discharge of greenhouse gasses and adverse effects on the environment. She takes the view that these proposed broiler farms would contribute to those problems including direct and indirect discharges of carbon and greenhouse gases. Fuels like petrol, diesel and natural gas used in transport to and from such broiler farms and in relation to their operation, are of concern to her. It appears to be her view that one more, or three more, substantial broiler farms will only aggravate a serious and accumulating international problem.
Her complaint about these proposals is not merely their location or other planning issues about them, but to the very notion of there being three more broiler farms. In fact, she would wish to see no more broiler farms, here or elsewhere, indeed she would wish to see a reduction of them.
Logically the same would apply to other forms of intensive animal husbandry and, in fact, to many other forms of industry that occasion the consumption of resources and carbon discharge from mineral fuels like oil, natural gas and coal. It is not only direct consumption that would be relevant, but also the use of electric power generated by such means.
Climate change is a serious issue in the community and receives some acknowledgement in the State Planning Policy Framework. Clause 13.01 refers to climate change impacts, there with particular reference to coastal inundation and erosion.
Climate change, its effects and policy requirements, are not limited to this area or Victoria. They are national and global questions. They call for national and global responses and policies. They cannot be effectively dealt with on a case by case ad hoc basis, or by refusing individual planning permit applications for broiler farms or other relevant uses and developments.
This Tribunal is charged with making decisions on planning permit applications on their planning merits as previously referred to. That involves taking account of the purposes, policies and principles in planning legislation, and particularly planning schemes. Here we are faced with such purposes and policies that seek to facilitate broiler farms in suitable locations and circumstances. The question becomes whether these proposals for these locations and circumstances are appropriate. In these circumstances, and in our understanding, the purposes and powers of this Tribunal do not extend to authorising it to refuse otherwise acceptable broiler farm proposals on the basis argued for by Ms Mithen.
Ms Mithen has presented an interesting discourse on what is widely recognised to be a very important topic, but she calls for us to exercise powers that go beyond the scope and role of the Tribunal and we would, we think, be failing to properly discharge our responsibilities if we were to refuse these proposals on that basis.

[261]

The requirement is the same. We will discuss it in terms of the viewpoint of the Tribunal.
The added provision contains qualifications. Firstly, there is the provision '(where appropriate)'. That contemplates that there will be, or may be, situations where it is not appropriate to have regard to the number of objectors. The amendment does not indicate any basis upon which this decision as to appropriateness or inappropriateness is to be made. It is left as a matter of judgment for the Tribunal in the circumstances of particular cases.
Where the number of objectors is to be considered it is in relation to whether the proposal 'may' have a significant social effect. A large number of objectors does not dictate that a particular proposal will have a significant social affect. Such objections could be trifling or irrelevant and either not refer to social affects at all, or only to insignificant ones. Conversely, there can well be cases where few or one or no objections are received, but where there are social affects that are clearly significant.
It is part of the task of the Tribunal, in assessing merits reviews of permit applications, to discern what are the relevant issues, be they social, economic, environmental or otherwise matters relevant to proper and orderly planning; and also to identify any matters raised that do not satisfy any of those categories, for example by irrelevance. The expressions 'planning matters' or 'planning issues' are often used as a convenient catch all of what must be considered. They might include planning matters that are also environmental or economic. We would add social but there may be few, if any, matters within the concept of planning matters that do not also have social effects.
The new amendment refer to 'significant' social effects. Significant is a relative rather than a black and white word. Something might be significant or highly significant or moderately significant or of minor significance. It is only the insignificant, and perhaps the irrelevant, that really fall outside the concept of significance.
The task of identifying relevant planning matters, including those having a social effect, and assessing their significance and relative significance, are tasks that the Tribunal is charged with performing and has been performing for many years. That task calls for performance whether the number of objectors is many, few, one or zero.

[265]

In this context the Tribunal must seek to arrive at the correct or preferable decision having balanced and integrated all relevant considerations, whether described as 'social' or not.
Such an approach does not mean that a proposal will be refused if there are many objectors, or that it will be granted if there are a few or no objectors. Planning permit applications, and decisions made on them by responsible authorities and the Tribunal, are not in the nature of a plebiscite or referendum where the majority view prevails, even if that be contrary to the planning merits of the proposal. In any event, no poll or vote is taken.
It has often been observed that many people taking a particular view that, on the merits judged to be irrelevant or unjustified, will not prevail whereas a ground or consideration raised by one person that is relevant and justified will carry the weight it deserves on its merits. In fact, the Tribunal needs to be alert to all relevant matters, even when no party raises one or some of them. A fairly recent Supreme Court decision in Stonnington CC v Lend Lease Apartments (Armadale) Pty Ltd[64] endorses that approach. That case indicates that when it comes to determining the merits of a proposal it is to be judged on the merits, and not on the numbers of objectors or supporters. It was put to us that, notwithstanding the recent legislative amendments, this remains the correct position. We agree.
The number of objectors consideration introduced by the amendment relates not to the judgment to be made on the merits, but to the identification of social issues or whether a social issue is significant. Having identified all the relevant issues, social or otherwise, the decision is made on the merits balancing these and all other relevant planning considerations.
Although the Tribunal was required to identify all the issues, social or otherwise, and to evaluate significance; the amendment appears to be a precaution reminding the Tribunal to consider and not overlook a significant social effect. It does not mean that many people claiming that something is a social effect or that it is a significant one, makes it so. It might be viewed as a salutary precaution and reminder.
The PE Act and the subordinate legislation thereunder, including the planning schemes, might be said, in any event, to be social legislation. They relate to society. They relate to the way in which Victorians live in communities and in relation to each other. Planning relates very much to the planning and operation of these communities. It would probably be very difficult for modern sophisticated societies to operate, must less operate efficiently, economically and in a manner conducive to the comfort and happiness of its people, if it were not for modern planning. Indeed it is not at all easy to think of an aspect of planning that is not social, or of planning laws that are not to do with society in some form or another. Of course, some issues are more important than others.
The objectives of the planning framework at section 4(2)(c) and (d) contain the following

[273]

The other places where 'social' is referred to are sections 60 and 84B where the recent amendments have been made. Those amendments refer to social effects, but not economic ones.
Ultimately we must consider all relevant matters, including significant social effects and if a large number of objections reminds us to do that, so much the better.
It is possible for some confusion to arise from the inclusion of the word 'social' in the Act. That is not because planning matters are not social matters, quite the contrary. However, some social matters might not be planning matters and it should not be assumed that, just because they can be described as 'social' they are necessarily planning matters. Whether gaming machines should be permitted in Victoria is a social question but it is one that has been determined by the Parliament, and is not one to be determined by responsible authorities or planning authorities or the Tribunal determining individual planning applications under the PE Act. Such bodies have duties and responsibilities as to the location of gaming venues, but not in relation to the, perhaps more important social question, as to whether they are to be permitted at all.
There are some cases where there is controversy about whether a particular situation raises a social matter and whether it is a significant social matter or one relevant to planning. An important recent case is Hoskin v Greater Bendigo CC[65], also known as the Bendigo mosque case. Social impacts and effects are discussed commencing at paragraph [106] to [134] and with reference to previous cases including Rutherford v Hume CC[66], Hunt Club Commercial Pty Ltd v Casey CC[67] and Stonnington CC v Lend Lease Apartments (Armadale) Pty Ltd previously referred to. There was considerable discussion in Hoskin to work out whether the concerns raised by objectors were social matters, whether they were social matters that were appropriate to be taken into account by the Tribunal and whether the number of objectors was relevant.
The only case we are aware of as having been decided since the amendments came into operation is Backman & Company Pty Ltd v Boroondara CC[68], a decision of another division of this Tribunal. That decision is dated 25 November 2015. It was not available for discussion in the course of the hearing before ourselves. However, we do not think circumstances warrant a recall of the parties to discuss it.
That case concerned a proposal for the construction of a three storey apartment building over a basement car park to contain 16 dwellings. There were 450 objections. The Tribunal considered this to be a significant level of community response. It was put that there was a significant social effect by the proposal overlooking a nearby school playground by 'perverts'. The safety of children playing in the park and the likelihood that the structure of the neighbourhood would change were also said to be social effects. It was further suggested that there would be an impact on demand for and use of community facilities including the local primary school, sporting groups, maternal and child welfare centre and in relation to parking and safe driving including the desire of aged persons who use motorised scooters on footpaths and feel safe in doing so. It was said that many new homes would result in more repair men and deliveries and visits by people maintaining gardens and removing rubbish.
There was reference to the second reading speech in relation to the amendment and the Planning Advisory Note 62 Planning and Environment Amendment (Recognising Objectors) Act 2015 issued by the Department of Environment, Land, Water and Planning as well as previous Tribunal decisions. The permit sought was granted and it was held that the number of objectors combined with assertions of social effects was not enough to demonstrate a significant social effect. Even if it had, then such social affect would still need to be assessed along with other relevant considerations and with the outcome not being determined by the number of objectors. The Tribunal also referred to things it considered objectors might need to demonstrate or produce evidence of in such cases. At paragraph [33] the Tribunal said

[297]

It was suggested that, if a large number of citizens or a large number of citizens residing not too far away, are concerned enough to object, that means they are upset enough to do so and that this is a social effect. That is contrary to the indication, that if numbers might indicate the presence of a significant social effect, it is not a significant social effect in itself. There are certainly effects of the proposal, as we have discussed. On balance we do not think that they warrant refusal of these proposals. It was suggested that amenity effects on surrounding residents amounts to a social effect. That does not accord well with the notion that effects on individuals should not be regarded as significant social effects. In any event, our conclusion is that such amenity effects are, in some cases exaggerated or minor and, in any event sufficiently minor as not to warrant refusal of these proposals.
These proposals do have the potential for some social and economic benefits by promoting broiler farm activity, jobs, income, rates and prosperity retaining population in the locality.
We have mentioned the case of Hoskin v Greater Bendigo CC[71]. Objectors in that case sought leave to appeal against the decision of the Tribunal therein to the Court of Appeal. The Hoskin case was determined at Tribunal level before the amendments to sections 60 and 84B, but did concern social effects. The proposed grounds for appeal included a proposition that the Tribunal was wrong in finding that there was onus on the objectors to produce evidence supporting their assertions that a mosque in Bendigo would have negative social effects. Other matters were also sought to be raised.
The Court of Appeal has now disposed of that appeal in Hoskin v Greater Bendigo CC[72]. It did so by refusing leave to appeal. The substantial judgment deals with other matters as well, but the Court of Appeal has upheld the Tribunal in relation to the need to produce evidence of negative social effects where they are alleged and sought to be relied upon.
The Court of Appeal has also drawn attention to a distinction that appears in the PE Act between 'social effects', see for example in sections 4(1)(d) and 12 on the one hand and 'significant social effects' in sections 60 and 84B on the other. It is the latter that a responsible authority and this Tribunal is to have regard to. The distinction is one that falls to the responsible authority and the Tribunal respectively to discern, as we have highlighted earlier.
In these present cases the objectors have not identified a serious social effect beyond indicating that various individuals are opposed to the proposal or upset by it. That does not satisfy the suggestion that it must be a concern of society or a section of society rather than individuals that are concerned. In any event, simple concern or, apprehension, disquiet or opposition does not amount to a social effect. Furthermore, we do not consider that evidence has been produced, or even that it could be produced, to establish a significant social concern where none has been identified. The emphasis is properly on the content of objections and identification of the reasons that planning permission is required are important. No significant social effect, beyond that implicit in all the various grounds of refusal and objection that we have considered, has been identified. We have, in fact, considered all the issues that have been raised that have any significance and ultimately reached our conclusion in relation to the merits of these proposals. Any minor or irrelevant matters that might have been mentioned in the course of the long hearing, whether specifically dealt with above or not, do not affect our judgment on the merits of these cases. They do not persuade us that the proposal should be refused and, to the extent they might affect the conditions to be imposed, we have drafted the conditions accordingly.
Whatever the number of objections might indicate, we find, on examination that the social effects and other planning matters urged against it, these proposals do not warrant their refusal. We consider that these proposals accord with net community benefit and sustainable development. Our conclusion is that the permits sought should be granted, subject to conditions.

[300]

Before the use or development commenced amended plans (including drawings) must be submitted to and approved by the responsible authority. Three copies are to be submitted. Such plans that are in the form of drawings are to be drawn to scale with dimensions. When approved such plans will be endorsed as evidence of their approval and will thereby become the endorsed plans in relation to this permit. The plans must be in accordance with the application plans but modified to show:
- (a) the location of any dwelling associated with the management of the operation;
- (b) the storage and collection point for dead birds located outside any bio-security fence;
- (c) the dimensions and levels of the flow and full supply level of the dams ;
- (d) details as to the layout and location of proposed spillways, swales and associated stormwater management infrastructure to manage outflows from the dams;
- (e) bio-security fencing and any other structures associated with the use and/or development that are not shown on the application plans;
- (f) exterior walls of broiler sheds, ancillary buildings and water tanks are to be coloured mist green;
- (g) location and details of bunded area for the storage of liquids and chemicals;
- (h) location and orientation of floodlighting and/or security lighting;
- (i) a landscape plan generally in accordance with the plans forming part of the written evidence of John Patrick presented at the hearing by the Victorian Civil and Administrative Tribunal of proceedings P2030/2014, P2031/2014 and P2032/2014;
- (j) location and extent of tree protection zones for any trees to be protected during development;
- (k) all stormwater management infrastructure ;
- (l) an amended Environmental Management Plan which, with the consent of the responsible authority, may be submitted for approval prior to the commencement of the use but not necessarily prior to the commencement of development;
- (m) the approved heavy vehicle transport routes to and from the site via Baringhup-West Road, Back Eddington Road and Mullins Road within the municipality of the Shire of Mount Alexander;
- (n) a site/construction plan demonstrating appropriate measures to protect native vegetation and associated habitat;
- (o) location and extent of septic tank facilities; and
- (p) the extent of any roadworks to facilitate access to the land from Baringhup-West Road indicating the extent of sealed carriageway including the seal between the road carriageway seal and the property gate with seal extending sufficiently to accommodate a semi-trailer with a length of 25m.
The use and development of the land allowed by this permit as shown on the endorsed plans must be carried out and maintained in accordance with the endorsed plans which plans are not to be altered or modified except with the prior written consent of the responsible authority.
Except if a later time is approved in writing by the responsible authority the developer carrying out development permitted by this permit must, establish landscaping in accordance with the endorsed landscape plan to the satisfaction of the responsible authority prior to the commencement of other development work herein approved and must thereafter, to the satisfaction of the responsible authority, maintain such landscaping including the replacement of any trees, bushes or groundcover being part of landscaping in accordance with such plants that may die.
A landscape performance bond to the satisfaction of the responsible authority must be established in accordance with Approved measure E4 M1.8 of the Victorian Code for Broiler Farms 2009.
The user of the land must maintain, in a permanent form to the satisfaction of the responsible authority, a record of any complaints received in relation to the operation of the broiler farm hereby permitted and in relation to complaints of alleged adverse amenity affects including (but not limited to) odours, noise, smells, dust, lighting or transportation issues; with copies of any written complaints to be retained and a record of what actions were taken to address or respond to such complaints; such records to be made available upon request to the responsible authority or officer, employee or representative of the responsible authority.

[303]

To the satisfaction of the responsible authority the amenity of the area must not be detrimentally affected by the use or development through the:
- (a) Transport of materials, goods or commodities to or from the land;
- (b) Emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, water products; or
- (c) Presence of vermin.
Except with the prior written consent of the responsible authority the broiler sheds permitted by this permit must only be used for the accommodation of broiler chickens.
The approved heavy vehicle transport route to and from the site as depicted in the endorsed plans and being via Baringhup-West Road, Back Eddington Road and Mullins Road (within the municipality of the Shire of Mount Alexander herein referred to as 'the approved truck route') is to be the only access to the site for heavy vehicles except that trucks removing used litter for delivery to properties within 5kms of the site may use other roads.
Prior to the commencement of the approved development the permit holder must:
- (a) survey the existing condition of the shoulders and roads on the nominated truck routes (and submit a report regarding that survey to the responsible authority for its approval) which survey must:
  - (i) involve deflection testing (at 100m intervals) along the entire length of the nominated truck route;
  - (ii) note and record (using appropriate visual imagery);
    - the condition of the pavement and shoulders;
    - any failed, weak, damaged, worn or notable areas of pavement or shoulder;
    - any areas where the condition of shoulders are considered inadequate; and
    - any culverts or waterway/creek crossings that need to be upgraded to achieve a 20 year design life for the design standard for 260,000 Equivalent Standard Axles;
- (b) prepare and submit to the responsible authority for its approval detailed Road Engineering Plans depicting the necessary road rehabilitation works for those parts of the approved truck route and that are likely to fail within a 20 year timeframe having regard to the surveys and testing required above. The Road Engineering Plans must:
  - (i) be prepared to respond to the matters identified in the approved survey required by condition 11(a);
  - (ii) provide that all roads and infrastructure along the approved truck route that are likely to fail within a 10 year timeframe taking account of a 260,000 Equivalent Standard Axle must be rehabilitated to achieve a 20 year design life as determined by reference to the Aust Roads Pavement Design Guide based on 260,000 Equivalent Standard Axle as the applicable post development standard;
  - (iii) all road to have a trafficable width of 6 metres with a 3.7 to 4 metre sealed width;
  - (iv) identify the extent of road along the approved truck route that is to be rehabilitated;
  - (v) detail any necessary upgrades to culverts, drainage infrastructure to achieve the applicable 20 year design standard;
  - (vi) provide for the upgrade to the intersection of Back Eddington Road and Mullins Road as depicted in Figure 8 of the expert witness statement of Henry Turnbull dated 5 March 2015;
  - (vii) include details of construction of all proposed driveway access in the site from Baringhup-West Road in accordance with engineering standards and plans approved by Council's Infrastructure Department; and
  - (viii) specify construction and maintenance standards for all internal accessways, car and truck parking areas in accordance with engineering standards and plans approved by Council's Infrastructure Department.

[310]

All construction and on-going activities on the site must follow sediment control principles as outlined in 'Construction Techniques for Sediment Pollution Control' (Environment Protection Authority, 1991).
Each cluster of eight sheds must be bunded with sufficient area to accommodate temporary storage of litter while being transferred. Silos and freezers for the storage of dead birds must be located within the bunded area which must be discharged to the stormwater retention dams.
Prior to the commencement of the development a Works Management Plan must be prepared and approved by Goulburn Murray Water. The plans must show:
- (a) the location and designs of the bunds surrounding the shed areas;
- (b) the design of the bunded drainage line from the shed area to the retention dam;
- (c) calculation of the dimensions and volume of the retention basin and design of the overflow of each dam; and
- (d) the type and location of the native vegetation to screen shedding.
All soil removed during construction of the dams must be reused, stabilised or vegetated on-site to ensure that no sediment can be transported off-site.
Stormwater and drainage from hard stand areas and the areas around the sheds must be directed to retention dams which must be designed with a capacity and freeboard to enable the run-off from a 1 in 10 year storm to be retained. The overflow from these dams must be designed such that no water is discharged directly off-site or directly to any waterways. Overflows must not cause erosion.
All water from the retention dams must be re-used within the boundaries of the broiler farm unless climatic conditions are wetter than average for an extended period of time in which case the overflow to land may operate.
The floors of the sheds must be constructed with an impervious surface.
The shed must be designed to ensure that all litter can be retained within the shed until removal following bird removal.
Used litter removed from the sheds at the end of each growing cycle must be transported off site by an approved contractor in accordance with the approved Environmental Management Plan.
There must be no litter from the sheds stockpiled on the site. Any temporary storage area for wet litter must have an impermeable base and bunding to ensure contaminated run-off does not discharge from the temporary storage area.
No application of contaminated litter to the land is to occur within 200m of any waterways or on any land subject to inundation.
All dead birds must be disposed of off-site in accordance with the approved Environmental Management Plan or managed on-site to the satisfaction of the Environment Protection Authority.
All wastewater from the proposed amenities building must be treated and disposed of using an Environment Protection Authority approved system, installed, operated and maintained in compliance with the relevant Environment Protection Authority Code of Practice and Certificate of Approval.
The wastewater disposal area for this system must be located at least 100m from the nearest waterway, 60m form the nearest dam and at least 20m from any bore.
The wastewater disposal area must be kept free of all infrastructure including buildings, driveways, tanks and service trenching and must be planted with appropriate vegetation to maximise its performance. Stormwater must be diverted away. A reserve wastewater disposal field of equivalent size to the primary disposal field must be provided for use in the event that the primary field requires testing or has failed.

[316]

Before the use or development commenced amended plans (including drawings) must be submitted to and approved by the responsible authority. Three copies are to be submitted. Such plans that are in the form of drawings are to be drawn to scale with dimensions. When approved such plans will be endorsed as evidence of their approval and will thereby become the endorsed plans in relation to this permit. The plans must be in accordance with the application plans but modified to show:
- (a) the location of any dwelling associated with the management of the operation;
- (b) the storage and collection point for dead birds located outside any bio-security fence;
- (c) the dimensions and levels of the flow and full supply level of the dams;
- (d) details as to the layout and location of proposed spillways, swales and associated stormwater management infrastructure to manage outfalls from the dams;
- (e) bio-security fencing and any other structures associated with the use and/or development that are not shown on the application plans;
- (f) exterior walls of broiler sheds, ancillary buildings and water tanks are to be coloured mist green;
- (g) location and details of bunded area for the storage of liquids and chemicals;
- (h) location and orientation of floodlighting and/or security lighting;
- (i) a landscape plan generally in accordance with the plans forming part of the written evidence of John Patrick presented at the hearing by the Victorian Civil and Administrative Tribunal of proceedings P2030/2014, P2031/2014 and P2032/2014;
- (j) location and extent of tree protection zones for any trees to be protected during development;
- (k) all stormwater management infrastructure ;
- (l) an amended Environmental Management Plan which, with the consent of the responsible authority, may be submitted for approval prior to the commencement of the use but not necessarily prior to the commencement of development;
- (m) the approved heavy vehicle transport routes to and from the site via Baringhup-West Road, Back Eddington Road and Mullins Road within the municipality of the Shire of Mount Alexander;
- (n) a site/construction plan demonstrating appropriate measures to protect native vegetation and associated habitat;
- (o) location and extent of septic tank facilities;
- (p) the extent of any roadworks to facilitate access to the land from Baringhup-West Road indicating the extent of sealed carriageway including the seal between the road carriageway seal and the property gate with seal extending sufficiently to accommodate a semi-trailer with a length of 25m; and
- (q) the relocation of the road crossing and entrance to the site taking account of the native vegetation assessment referred to in Condition 16 below so as to avoid damage to existing roadside native vegetation, including but not limited to Spiny Rice flower or Matted Flax-lily.
The use and development of the land allowed by this permit as shown on the endorsed plans must be carried out and maintained in accordance with the endorsed plans which plans are not to be altered or modified except with the prior written consent of the responsible authority.
Except if a later time is approved in writing by the responsible authority the developer carrying out development permitted by this permit must, establish landscaping in accordance with the endorsed landscape plan to the satisfaction of the responsible authority prior to the commencement of other development work herein approved and must thereafter, to the satisfaction of the responsible authority, maintain such landscaping including the replacement of any trees, bushes or groundcover being part of landscaping in accordance with such plants that may die.
A landscape performance bond to the satisfaction of the responsible authority must be established in accordance with Approved measure E4 M1.8 of the Victorian Code for Broiler Farms 2009.

[319]

To the satisfaction of the responsible authority the amenity of the area must not be detrimentally affected by the use or development through the:
- (a) Transport of materials, goods or commodities to or from the land;
- (b) Emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, water products; or
- (c) Presence of vermin.
Except with the prior written consent of the responsible authority the broiler sheds permitted by this permit must only be used for the accommodation of broiler chickens.
The approved heavy vehicle transport route to and from the site as depicted in the endorsed plans and being via Baringhup-West Road, Back Eddington Road and Mullins Road (within the municipality of the Shire of Mount Alexander herein referred to as 'the approved truck route') is to be the only access to the site for heavy vehicles except that trucks removing used litter for delivery to properties within 5kms of the site may use other roads.
Prior to the commencement of the approved development the permit holder must:
- (a) survey the existing condition of the shoulders and roads on the nominated truck routes and (submit a report regarding that survey to the responsible authority for its approval) which survey must:
  - (i) involve deflection testing (at 100m intervals) along the entire length of the nominated truck route;
  - (ii) note and record (using appropriate visual imagery);
    - the condition of the pavement and shoulders;
    - any failed, weak, damaged, worn or notable areas of pavement or shoulder;
    - any areas where the condition of shoulders are considered inadequate; and
    - any culverts or waterway/creek crossings that need to be upgraded to achieve a 20 year design life for the design standard for 260,000 Equivalent Standard Axles;
- (b) prepare and submit to the responsible authority for its approval detailed Road Engineering Plans depicting the necessary road rehabilitation works for those parts of the approved truck route and that are likely to fail within a 20 year timeframe having regard to the surveys and testing required above. The Road Engineering Plans must:
  - (i) be prepared to respond to the matters identified in the approved survey required by condition 11(a);
  - (ii) provide that all roads and infrastructure along the approved truck route that are likely to fail within a 10 year timeframe taking account of a 260,000 Equivalent Standard Axle must be rehabilitated to achieve a 20 year design life as determined by reference to the Aust Roads Pavement Design Guide based on 260,000 Equivalent Standard Axle as the applicable post development standard;
  - (iii) all road to have a trafficable width of 6 metres with a 3.7 to 4 metre sealed width;
  - (iv) identify the extent of road along the approved truck route that is to be rehabilitated;
  - (v) detail any necessary upgrades to culverts, drainage infrastructure to achieve the applicable 20 year design standard;
  - (vi) provide for the upgrade to the intersection of Back Eddington Road and Mullins Road as depicted in Figure 8 of the expert witness statement of Henry Turnbull dated 5 March 2015
  - (vii) include details of construction of all proposed driveway access in the site from Baringhup-West Road in accordance with engineering standards and plans approved by Council's Infrastructure Department; and
  - (viii) specify construction and maintenance standards for all internal accessways, car and truck parking areas in accordance with engineering standards and plans approved by Council's Infrastructure Department.

[327]

All construction and on-going activities on the site must follow sediment control principles as outlined in 'Construction Techniques for Sediment Pollution Control' (Environment Protection Authorty, 1991).
Each cluster of eight sheds must be bunded with sufficient area to accommodate temporary storage of litter while being transferred. Silos and freezers for the storage of dead birds must be located within the bunded area which must be discharged to the stormwater retention dams.
Prior to the commencement of the development a Works Management Plan must be prepared and approved by Goulburn Murray Water. The plans must show:
- (a) the location and designs of the bunds surrounding the shed areas;
- (b) the design of the bunded drainage line from the shed area to the retention dam;
- (c) calculation of the dimensions and volume of the retention basin and design of the overflow of each dam; and
- (d) the type and location of the native vegetation to screen shedding.
All soil removed during construction of the dams must be reused, stabilised or vegetated on-site to ensure that no sediment can be transported off-site.
Stormwater and drainage from hard stand areas and the areas around the sheds must be directed to retention dams which must be designed with a capacity and freeboard to enable the run-off from a 1 in 10 year storm to be retained. The overflow from these dams must be designed such that no water is discharged directly off-site or directly to any waterways. Overflows must not cause erosion.
All water from the retention dams must be re-used within the boundaries of the broiler farm unless climatic conditions are wetter than average for an extended period of time in which case the overflow to land may operate.
The floors of the sheds must be constructed with an impervious surface.
The shed must be designed to ensure that all litter can be retained within the shed until removal following bird removal.
Used litter removed from the sheds at the end of each growing cycle must be transported off site by an approved contractor in accordance with the approved Environmental Management Plan.
There must be no litter from the sheds stockpiled on the site. Any temporary storage area for wet litter must have an impermeable base and bunding to ensure contaminated run-off does not discharge from the temporary storage area.
No application of contaminated litter to the land is to occur within 200m of any waterways or on any land subject to inundation.
All dead birds must be disposed of off-site in accordance with the approved Environmental Management Plan or managed on-site to the satisfaction of the Environment Protection Authority.
All wastewater from the proposed amenities building must be treated and disposed of using an Environment Protection Authority approved system, installed, operated and maintained in compliance with the relevant Environment Protection Authority Code of Practice and Certificate of Approval.
The wastewater disposal area for this system must be located at least 100m from the nearest waterway, 60m form the nearest dam and at least 20m from any bore.
The wastewater disposal area must be kept free of all infrastructure including buildings, driveways, tanks and service trenching and must be planted with appropriate vegetation to maximise its performance. Stormwater must be diverted away. A reserve wastewater disposal field of equivalent size to the primary disposal field must be provided for use in the event that the primary field requires testing or has failed.

[333]

Before the use or development commenced amended plans (including drawings) must be submitted to and approved by the responsible authority. Three copies are to be submitted. Such plans are to be drawn to scale with dimensions. When approved such plans will be endorsed as evidence of their approval and will thereby become the endorsed plans in relation to this permit. The plans must be in accordance with the application plans but modified to show:
- (a) the location of any dwelling associated with the management of the operation;
- (b) the storage and collection point for dead birds located outside any bio-security fence;
- (c) the dimensions and levels of the flow and full supply level of the dams;
- (d) details as to the layout and location of proposed spillways, swales and associated stormwater management infrastructure to manage outfalls from the dams;
- (e) bio-security fencing and any other structures associated with the use and/or development that are not shown on the application plans;
- (f) exterior walls of broiler sheds, ancillary buildings and water tanks are to be coloured mist green;
- (g) location and details of bunded area for the storage of liquids and chemicals;
- (h) location and orientation of floodlighting and/or security lighting;
- (i) a landscape plan generally in accordance with the plans forming part of the written evidence of John Patrick presented at the hearing by the Victorian Civil and Administrative Tribunal of proceedings P2030/2014, P2031/2014 and P2032/2014;
- (j) location and extent of tree protection zones for any trees to be protected during development;
- (k) all stormwater management infrastructure ;
- (l) an amended Environmental Management Plan which, with the consent of the responsible authority, may be submitted for approval prior to the commencement of the use but not necessarily prior to the commencement of development;
- (m) the approved heavy vehicle transport routes to and from the site via Baringhup-West Road, Back Eddington Road and Mullins Road within the municipality of the Shire of Mount Alexander;
- (n) a site/construction plan demonstrating appropriate measures to protect native vegetation and associated habitat;
- (o) location and extent of septic tank facilities; and
- (p) the extent of any roadworks to facilitate access to the land from Baringhup-West Road indicating the extent of sealed carriageway including the seal between the road carriageway seal and the property gate with seal extending sufficiently to accommodate a semi-trailer with a length of 25m.
The use and development of the land allowed by this permit as shown on the endorsed plans must be carried out and maintained in accordance with the endorsed plans which plans are not to be altered or modified except with the prior written consent of the responsible authority.
Except if a later time is approved in writing by the responsible authority the developer carrying out development permitted by this permit must, establish landscaping in accordance with the landscape plan to the satisfaction of the responsible authority prior to the commencement of other development work herein approved and must thereafter, to the satisfaction of the responsible authority, maintain such landscaping including the replacement of any trees, bushes or groundcover being part of landscaping in accordance with such plants that may die.
A landscape performance bond to the satisfaction of the responsible authority must be established in accordance with Approved measure E4 M1.8 of the Victorian Code for Broiler Farms 2009.

[336]

To the satisfaction of the responsible authority the amenity of the area must not be detrimentally affected by the use or development through the:
- (a) Transport of materials, goods or commodities to or from the land;
- (b) Emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, water products; or
- (c) Presence of vermin.
Except with the prior written consent of the responsible authority the broiler sheds permitted by this permit must only be used for the accommodation of broiler chickens.
The approved heavy vehicle transport routes to and from the site as depicted in the endorsed plans and being via Baringhup-West Road, Back Eddington Road and Mullins Road (within the municipality of the Shire of Mount Alexander herein referred to as 'the approved truck route') is to be the only access to the site for heavy vehicles except that trucks removing used litter for delivery to properties within 5kms of the site may use other roads.
Prior to the commencement of the approved development the permit holder must:
- (a) survey the existing condition of the shoulders and roads on the nominated truck routes (and submit a report regarding that survey to the responsible authority for its approval) which survey must:
  - (i) involve deflection testing (at 100m intervals) along the entire length of the nominated truck route;
  - (ii) note and record (using appropriate visual imagery);
    - the condition of the pavement and shoulders;
    - any failed, weak, damaged, worn or notable areas of pavement or shoulder;
    - any areas where the condition of shoulders are considered inadequate; and
    - any culverts or waterway/creek crossings that need to be upgraded to achieve a 20 year design life for the design standard for 260,000 Equivalent Standard Axles;
- (b) prepare and submit to the responsible authority for its approval detailed Road Engineering Plans depicting the necessary road rehabilitation works for those parts of the approved truck route and that are likely to fail within a 20 year timeframe having regard to the surveys and testing required above. The Road Engineering Plans must:
  - (i) be prepared to respond to the matters identified in the approved survey required by condition 11(a);
  - (ii) provide that all roads and infrastructure along the approved truck route that are likely to fail within a 10 year timeframe taking account of a 260,000 Equivalent Standard Axle must be rehabilitated to achieve a 20 year design life as determined by reference to the Aust Roads Pavement Design Guide based on 260,000 Equivalent Standard Axle as the applicable post development standard;
  - (iii) all road to have a trafficable width of 6 metres with a 3.7 to 4 metre sealed width;
  - (iv) identify the extent of road along the approved truck route that is to be rehabilitated;
  - (v) detail any necessary upgrades to culverts, drainage infrastructure to achieve the applicable 20 year design standard;
  - (vi) provide for the upgrade to the intersection of Back Eddington Road and Mullins Road as depicted in Figure 8 of the expert witness statement of Henry Turnbull dated 5 March 2015
  - (vii) include details of construction of all proposed driveway access in the site from Baringhup-West Road in accordance with engineering standards and plans approved by Council's Infrastructure Department; and
  - (viii) specify construction and maintenance standards for all internal accessways, car and truck parking areas in accordance with engineering standards and plans approved by Council's Infrastructure Department.

[343]

All construction and on-going activities on the site must follow sediment control principles as outlined in 'Construction Techniques for Sediment Pollution Control' (Environment Protection Authority, 1991).
Each cluster of eight sheds must be bunded with sufficient area to accommodate temporary storage of litter while being transferred. Silos and freezers for the storage of dead birds must be located within the bunded area which must be discharged to the stormwater retention dams.
Prior to the commencement of the development a Works Management Plan must be prepared and approved by Goulburn Murray Water. The plans must show:
- (a) the location and designs of the bunds surrounding the shed areas;
- (b) the design of the bunded drainage line from the shed area to the retention dam.;
- (c) calculation of the dimensions and volume of the retention basin and design of the overflow of each dam; and
- (d) the type and location of the native vegetation to screen shedding.
All soil removed during construction of the dams must be reused, stabilised or vegetated on-site to ensure that no sediment can be transported off-site.
Potentially contaminated stormwater and drainage from hard stand areas and the areas around the sheds must be directed to retention dams which must be designed with a capacity and freeboard to enable the run-off from a 1 in 10 year storm to be retained. The overflow from these dams must be designed such that no water is discharged directly off-site or directly to any waterways. Overflows must not cause erosion.
All water from the retention dams must be re-used within the boundaries of the broiler farm unless climatic conditions are wetter than average for an extended period of time in which case the overflow to land may operate.
The floors of the sheds must be constructed with an impervious surface.
The shed must be designed to ensure that all litter can be retained within the shed until removal following bird removal.
Used litter removed from the sheds at the end of each growing cycle must be transported off site by an approved contractor in accordance with the approved Environmental Management Plan.
There must be no litter from the sheds stockpiled on the site. Any temporary storage area for wet litter must have an impermeable base and bunding to ensure contaminated run-off does not discharge from the temporary storage area.
No application of contaminated litter to land is to occur within 200m of any waterways or on any land subject to inundation.
All dead birds must be disposed of off-site in accordance with the approved Environmental Management Plan or managed on-site to the satisfaction of the Environment Protection Authority.
All wastewater from the proposed amenities building must be treated and disposed of using an Environment Protection Authority approved system, installed, operated and maintained in compliance with the relevant Environment Protection Authority Code of Practice and Certificate of Approval.
The wastewater disposal area for this system must be located at least 100m from the nearest waterway, 60m form the nearest dam and at least 20m from any bore.
The wastewater disposal area must be kept free of all infrastructure including buildings, driveways, tanks and service trenching and must be planted with appropriate vegetation to maximise its performance. Stormwater must be diverted away. A reserve wastewater disposal field of equivalent size to the primary disposal field must be provided for use in the event that the primary field requires testing or has failed.

Vukadinovic v Mount Alexander SC

At a glance

Court

Decision date

Source

Judgment (382 paragraphs)

Vukadinovic v Mount Alexander SC (No. 6) (Correction) [2015] VCAT 1993 (10 February 2016)

Parties

Legislation Cited (2)