P2030/2014 - CA5A1, 5A2 & 5A4, Sec 3, Parish of Eddington, Baringhup West Road, Baringhup West

P2031/2014 - CA1 1 & 2, Sec 4, Parish of Baringhup, 165 Baringhup-Havelock Road, Baringhup

P2032/2014 - CA5A3, 5A5, 5B1, 5B2, 5B3 & 5B4, Sec 3, Parish of Eddington, 290 Baringhup-Havelock Road, Baringhup West

Vukadinovic v Mt Alexander SC (No.1) [2015] VCAT 890

1. Pursuant to section 127 and clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998, each of the three permit applications is amended by substituting the following plans for the respective application plans:
   • Plans prepared by Land Management Surveys (Melbourne) Pty Ltd; Revision B; Dated 15-01-2015, being Exhibits G4, G5, and G6; and
   • Sheets 5 of 5 in each of Exhibits G4, G5, and G6 corrected as shown in Exhibit G7 dated 17-03-2015.
2. The hearing is adjourned until 10am, Monday 12 October 2015, at 55 King Street, Melbourne, for 15 days (unless another venue is advised).
3. By close of business on 8 April 2015, counsel for Maurice & Barry Forbes, Peter & Pauline Liston and Peter Smith must file with the Tribunal and serve on the other parties in the proceedings a written submission dealing with the following questions:
   • (a) Are the presence of the nearby recently constructed structures on the Forbes and Smith land to be taken into account in assessing sensitive uses and separation distances for the three proposed 400,000 bird broiler farms being applied for?
   • (b) Is the relevant time for the consideration of classification and assessment of the proposed broiler farms fixed at and limited to the date on which the permit applications were lodged with the responsible authority?
   • (c) Is a Cultural Heritage Management Plan required? If so, why? If not, why not?
4. By close of business on 22 April 2015, written submissions in response to the written submission filed in accordance with Order No. 3 and dealing with the questions (a), (b) and (c) set out therein must be filed with the Tribunal and served on all parties to the proceedings on behalf of the Responsible Authority and the other Respondent objectors who appeared or who were represented before the Tribunal on 23 to 26 March 2015 save that Mr John Purcell is not required to file and serve such a reply unless he wishes to.
5. By close of business on 6 May 2015, written submissions in response to the written submission filed in accordance with Orders No. 3 and 4 and dealing with the questions (a), (b) and (c) set out in Order 3 must be filed with the Tribunal and served on all parties to the proceedings on behalf of Michael Vukadinovic.
6. By close of business on 13 May 2015, a final written reply in response to the written submissions filed in accordance with Order No. 5 may be filed with the Tribunal and served on all parties to the proceedings on behalf of Maurice & Barry Forbes, Peter & Pauline Liston and Peter Smith. In the even of it being decided not to file and serve a final written reply in accordance with this order the Registrar of the Tribunal and the other parties who appeared or who were represented at the hearing are to be advised in writing to that effect by close of business on 13 May 2015.
7. Costs reserved.

Mr Graeme Peake of counsel on the instructions of his client.

Mr P O'Farrell of counsel appeared on the instructions of Best Hooper solicitors.

For Maurice & Barry Forbes, Peter & Pauline Liston, Peter Smith

Ms A Patterson of counsel appeared on the instructions of her clients.

Mark and Kim Brasser, Mark Yarwood, Raimond and Yale Gaita, Ian Addlem, Jason Keats, Brendon Connelly, Shelley Walker, Joe and Sue La Greca, Grant Hodgetts, Cathy McCallum, Toby and Sarah Liston, Peter, Shane, Maree and Amber Baker, Louise Appleby, Rob Wilson, Jarod and Kerry Adlem, Ron and Heather Shellie, Roy and Linda Pickering, Lyndsay and Abby Daniel, Alan Millar and Noel Brasser.

Applications under section 77 of the Planning and Environment Act 1987 for review of a decision of the responsible authority to refuse to grant a permit

Each application is for the use and development of a 400,000 bird broiler farm.

Clause 35.07-4 Buildings and works for a section 2 use (which includes broiler farms)

Irregularly shaped parcel of land in several titles bounded to the north by Baringhup West Road, to the east by Green Lane, to the south by Baringhup-Havelock Road and to the west by an unmade section of O'Keefes Road and having a total area of approximately 448.8 hectares

An accompanied inspection of the land and locality was conducted on 26 March 2015

Buttigieg v Melbourne Shire Council [2004] VCAT 417.

Country Endeavours Pty Ltd v Baw Baw SC [2009] VCAT 1952, [2009] VCAT 2086, [2010] VCAT 342, [2010] VCAT 1199, [2010] VCAT 1483, [2011] VCAT 2403.

Country Endeavours Pty Ltd v West Gippsland Catchment Management Authority [2010] VCAT 566 and [2011] VCAT 149.

Purchase v Baw Baw SC, Campbell and ors [1999] VCAT 1237.

Purchase v Baw Baw SC [2000] VCAT 327.

Aerolite Quarries Pty Ltd v Greater Geelong CC [2014] VCAT 1611.

1. These three applications for review arise from three permit applications made by the permit applicant, Mr Michael Vukadinovic, seeking planning permission for three broiler farms on a large parcel of land (with several titles) at Baringhup West.
2. Clause 52.31 and the Victorian Code for Broiler Farms 2009 are relevant to the proposal. The code is an incorporated document in the Mount Alexander Planning Scheme and, accordingly, is part of that piece of subordinate legislation.
3. The code classifies broiler farm applications on the basis of bird numbers and the spatial arrangement of separation distances between the nearest external edge of a broiler shed to the nearest external edge of a sensitive use on land beyond the broiler farm property. The code applies a formula to calculate the necessary separation distance based on bird numbers. A minimum separation distance of 250m applies for farms of 250,000 birds or less
4. Class A broiler farms are farms of not more than 400,000 birds that contain their 'separation distances' from 'sensitive uses' within the land holding on which they are established.
5. A class B broiler farm has not more than 400,000 birds and has part of its separation distance from sensitive uses on neighbouring land not under the ownership and control of the proprietors of the broiler farm.
6. Sensitive uses includes dwelling. Although a class B broiler farm will not have all of its separation distances within its own title boundaries it cannot be a class B farm if there is a sensitive use, such as a dwelling, within the specified separation distance for the relevant number of birds.
7. Each of these proposed broiler farms in these three applications is to have a maximum capacity of 400,000 birds. At the time of the application, each farm's separation distance fell outside the land holding in which they are established and did not encompass any 'sensitive use'. The applications therefore proceeded on the basis that they were class B broiler farms.
8. Prior to the hearing the applicant circulated proposed amended plans. When the hearing commenced at Bendigo on 23 March 2015 application was made on his behalf to substitute the amended plans. This was subject to a further correction in as much as the circulated amended plans contained a slip or accidental error in that an incorrect dimension notation appeared, although the relevant drawings scaled correctly.
9. Amendment to the application plans was granted.
10. The hearing that commenced at Bendigo on 23 March 2015 had been intended and expected to be a hearing of the merits of the proposal. Ten days had been allocated for the hearing with the first five to be conducted at the Law Courts at Bendigo. In the event, three days were occupied with preliminary arguments and a fourth with an accompanied inspection in and around Baringhup, Baringhup West and the observation of two existing broiler farms at Strathlea. The merits hearing was not reached. It has been adjourned to commence at 10.00 am on Monday 12 October 2015 at the Tribunal's premises at 55 King Street, Melbourne (unless another venue is advised) when 15 days have been allocated.
11. Early in the hearing that did proceed a call was made for preliminary matters. That gave rise to an application by counsel on behalf of Maurice Forbes, Barry Forbes, Peter Liston, Pauline Liston and Peter Smith (the Forbes group) for the hearing to be adjourned.
12. An adjournment was sought on the basis of the amended plans, a written submission by the Minister and because of the construction and occupation of two prefabricated dwellings within the separation distances that had been relied upon by the applicant to classify two of the farms as class B broiler farms.
13. The adjournment sought on the basis of substituted plans was refused.
14. Enquiries of the Minister by representatives of parties disclosed that the Minister did not intend to appear or be represented at the hearing and does not intend to participate beyond the submission of the written document already sent to the Tribunal. The adjournment sought on that basis was also refused.
15. The third basis upon which an adjournment was sought was said to be on account of the construction and occupation of prefabricated houses that had been constructed on Forbes and Smith lands respectively over the course of an approximately three week period immediately before the commencement of the hearing on 23 March 2015. It was said that because of these events a new assessment of the farms would be required and fresh evidence be obtained by the parties.
16. For present purposes it is not necessary for us to detail all the steps involved in the construction of these structures although a chronology was sought in the course of the hearing and is again sought in the written submissions now being required of the parties.
17. These new structures have been erected in corners of the Forbes and Smith land respectively in very close proximity to two of the proposed class B broiler farms. They are so close as to be well within the separation distance for the proposed 400,000 bird farms. It was suggested that the adjournment to obtain fresh evidence was occasioned by the circumstance that those two farms at least can no longer proceed on the basis of 'class B' classifications and that alternative class or classes of broiler farms would be necessitated.
18. It was ruled, in effect, that the Forbes group could not force the permit applicant to amend his application in this way and that the three class B broiler farms are the proposals still before the Tribunal. That would continue to be the case unless and until an amendment was made which is unlikely to be granted unless applied for by the permit applicant. The application for adjournment on behalf of the Forbes group was refused accordingly.
19. However, that does leave the applicant's case faced with the new structures. If they are to be taken into consideration in classifying the present form of broiler farms, and if the classifications of class B farms are persisted with, then it is admitted on behalf of the applicant that the code prohibits or bars permission being granted, at least for two of the broiler farms concerned. To proceed with the application for these two farms on the basis of the new structures being taken into account the code would require us to contemplate a reduction in separation distances based on the farms being special class farms using odour reduction technologies.
20. Counsel on behalf of the applicant made lengthy submissions to the effect that these new structures should not be taken into account for such purposes. The grounds for such submissions include that the construction of these structures, and their occupation, at least in their present positions amounts to a sham device that is employed for an ulterior purpose and which is not made in good faith. It is also argued that, upon a correct interpretation of the code and the relevant parts of the planning scheme, it is implicit that the time for ascertaining such things is at the time the permit application was made, not at the time of the hearing before the Tribunal or at the time a determination is made by the Tribunal.
21. It is well known that the law to be applied in review proceedings before the Tribunal is the law as it stands at the time the Tribunal decision is to be made. However, the relevant matters here concern questions of fact and the submission is that, whether or not they would normally be determined as at the situation at the time of the Tribunal determination, having regard to the interpretation of the code and planning scheme, the relevant time is earlier.[3]
22. In this connection there was discussion in relation to a number of cases some of which were mentioned by counsel for the applicant. These included cases of Country Endeavours Pty Ltd v Baw Baw SC[4] in some of which two of the members constituting the Tribunal for the present case were involved.[5] In fact, the Country Endeavours case involved a number of proceedings, the earliest of which did not involve either of those members.[6]
23. Other cases were mentioned during the oral submissions including Purchase v Shire of Baw Baw[7] and Aerolite Quarries Pty Ltd v Greater Geelong CC.[8] Another case discussed at some length, and from which certain principles were sought to be extracted was Buttigieg v Melbourne Shire Council.[9] This was a decision of the then President of the Tribunal, Mr Stuart Morris, who was then also a Justice of the Supreme Court.
24. The sort of question now raised has arisen in the past in relation to broiler farms, quarries and wind electricity generators. There may be other similar cases. Generally, and it may be exclusively, such cases have arisen in relation to proposed dwellings or permits for dwellings rather than a situation where houses have actually been constructed.[10]
25. After hearing counsel for the applicant and the representatives of other parties the presiding member, who is responsible for determining questions of law in this case, stated he was not in a position to determine these questions and that it would be necessary to reserve decisions upon them.
26. Although the adjournments sought on behalf of the Forbes group, and for the reasons put forward on their behalf, were refused; nevertheless we determined that the hearing in relation to the planning merits in these cases should be deferred. We were faced with a situation where three of the ten days allocated had been exhausted and where, in our judgement, something more in the order of 12 days would be needed in any event. That would mean that even if the merits hearing commenced, it would have to be adjourned part heard and for a quite substantial period. That is an inexpedient arrangement which would mean that the case could not be finished before the adjourned part of the hearing. Furthermore, such arrangements normally prolong rather than hasten a determination.
27. A further consideration relates to the preliminary issues being reserved. The outcome in relation to them could mean that the current proposal (or at least two of them in their present form) are prohibited by the code. It would be convenient to determine those issues as preliminary matters. That would mean that the full merits hearing, expected to be a lengthy and expensive hearing, would not proceed on the present applications if they are barred. This became a second reason for the adjournment.
28. It was announced that we, and in particular the presiding member, would be assisted if comprehensive written submissions were provided pursuant to directions that have in fact been given. It is contemplated that the lengthy submissions made orally on behalf of the applicant should be reduced to writing and that the other parties who are legally represented should deal with the relevant questions, also in writing.
29. Certain facts and the chronology of events will be relevant and for this reason, after some discussion, it was determined that the submissions on behalf of the Forbes group should be prepared and distributed first with subsequent submissions on behalf of the other objectors and the responsible authority to follow and then submissions on behalf of the applicant with a right of reply for the Forbes group.
30. Directions to this effect were given orally and are recorded in this document.
31. At the oral hearing it was intended that a further direction should be given that any party not availing itself or themselves of the opportunity to make submissions provided for in the directions should advise the Registrar of the Tribunal and the other parties in writing to that effect. However, it has been realised that it is intended that the parties with legal representation should provide written submissions to assist the Tribunal in determining what are perceived to be complex issues. Accordingly that originally intended direction has been omitted. It is not intended to force Mr Purcell, who is not a lawyer and who is appearing in person, to provide written submissions. The directions have been adjusted to avoid imposing that upon him.
32. It is intended, not only that there should be a comprehensive statement of facts and chronology, but also that the submissions made orally should be set down in writing and furthermore that relevant previous decisions, or previous decisions that might be relevant whether mentioned in the course of the oral hearing or not, will be dealt with by the parties.
33. We note that two of the referral authorities indicated that they do not oppose the grant of the permits sought provided that their specified conditions are included. Their correspondence apparently states that they do not intend to appear at the hearing (and none of them did appear at the hearings to date) unless their conditions are under challenge. Apparently discussions have taken place between such referral authorities and the applicant and it is anticipated that the question of conditions proposed by such authorities will be resolved. However, it should not be taken that referral authorities in that situation can cast upon the Tribunal the responsibility of determining whether there is or will be a challenge to any of the conditions proposed by such referral authority, or whether it should appear at the hearing.

[1] There were no appearances by the Minister for Planning, referral authorities and other objectors.

[2] The names of the respondent objectors for whom Mr O'Farrell appeared in set out in the list set out below.

[3] In this paragraph we have mentioned two of the bass upon which the applicant claims that the new structures are to be disregarded. The submissions were not limited to those two bases. However we need not set out all the propositions relied upon here. The applicant is being called upon to recapitulate in writing the submissions made orally at the hearing. We look to that prospective document to cover all bases relied upon.

[4] The Country Endeavours Pty Ltd v Baw Baw SC cases are numerous and include the following citations: [2009] VCAT 1952, [2009] VCAT 2086, [2010] VCAT 342, [2010] VCAT 1199, [2010] VCAT 1483, [2011] VCAT 2403 and two cases involving Country Endeavours Pty Ltd v West Gippsland Catchment Management Authority [2010] VCAT 566 and [2011] VCAT 149.

[6] Giles & Ors v Baw Baw SC [2009] VCAT 61

[7] See Purchase v Baw Baw SC, Campbell and ors [1999] VCAT 1237 and Purchase v Baw Baw SC [2000] VCAT 327.

[8] [2014] VCAT 1611.

[9] [2004] VCAT 417.

[10] A house was constructed in Country Endeavours but there was a discretion to modify buffer distances so that no prohibition or legal bar was created by such construction.