Big Country Australia Pty Ltd and Shire Of Serpentine-Jarrahdale
[2006] WASAT 10
•20 JANUARY 2006
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA)
CITATION: BIG COUNTRY AUSTRALIA PTY LTD and SHIRE OF SERPENTINE-JARRAHDALE [2006] WASAT 10
MEMBER: MR D R PARRY (SENIOR MEMBER)
MR T CAREY (MEMBER)
MS M CONNOR (MEMBER)
HEARD: 2 AND 3 NOVEMBER- FURTHER JOINT WITNESS STATEMENT AND SUBMISSIONS FILED 29 NOVEMBER 2005 AND 15 DECEMBER 2005
DELIVERED : 20 JANUARY 2006
FILE NO/S: DR 498 of 2005
BETWEEN: BIG COUNTRY AUSTRALIA PTY LTD
Applicant
AND
SHIRE OF SERPENTINE-JARRAHDALE
Respondent
Catchwords:
Town planning Development application Broiler poultry farm 16 controlled environment sheds each containing approximately 60 000 birds Rural zone Discretionary use Site not within Poultry Farm Special Control Area where poultry farm is permitted use Site adjacent to Special Control Area on two sides Four other poultry farms and a piggery in locality Whether odour impact acceptable Whether noise impact acceptable Whether development outside Special Control Area consistent with proper and orderly planning Loss of native vegetation
Legislation:
Environmental Protection (Noise) Regulations 1997 (WA)
Shire of Serpentine-Jarrahdale Town Planning Scheme No 2, Pt X
Town Planning and Development Act 1928 (WA), s 8A(1)
Result:
1. Application for review upheld.
2. Development approval for poultry farm at lot 368 Henderson Road, Serpentine granted subject to conditions.
Category: B
Representation:
Counsel:
Applicant: Mr MJ Hardy
Respondent: Mr PL Wittkuhn
Solicitors:
Applicant: Hardy Bowen
Respondent: McLeods
Case(s) referred to in decision(s):
City of Swan v Taylor [2005] WASCA 88
Case(s) also cited:
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
Big Country Australia Pty Ltd sought review of the Shire of SerpentineJarrahdale's refusal of development approval for a 16 shed broiler poultry farm on rural land in Serpentine. The principal issues for consideration were odour, noise, location of the site outside the designated Poultry Farm Special Control Area and loss of native vegetation.
The Tribunal determined that the application warranted conditional approval. Although the development will have impacts on properties in the vicinity by reason of odour and noise generation, these impacts are reasonable in the context of the zoning and planning controls which regulate development of the site and of adjoining and adjacent properties and the pattern of land uses in the vicinity which include four poultry farms and a piggery.
Although the Tribunal was satisfied that the development will comply with noise regulations, it considered that the scale and intensity of the development and the requirement for night-time catching warranted additional noise mitigation. The Tribunal, therefore, imposed a condition which requires the construction of 4.0 metre high vegetated earthen bunds on the eastern and western sides of the sheds. It also required the construction of 4.0 metre high earthen bunds or windbreak walls to disperse odours from fans and annual monitoring of odour emissions and noise to ensure that the impacts of the operation are no greater than shown on the evidence. The annual monitoring will be conducted at appropriate times by suitably qualified engineers and their reports provided to the Shire and made publicly available.
Although the development is located adjacent to rather than within the Special Control Area, the Tribunal was satisfied that approval of the development is not contrary to orderly and proper planning of the locality. The planning scheme encourages poultry farm development within the Special Control Area, but does not discourage such development outside that area, subject to merit.
Finally, the Tribunal considered that the extent of clearing required for the development was acceptable and was compensated for by significant revegetation at site boundaries.
Introduction
These proceedings involve an application brought by Big Country Australia Pty Ltd pursuant to s 8A(1) of the Town Planning and Development Act 1928 (WA) (TPD Act) for review of the decision of the Shire of SerpentineJarrahdale (Shire) to refuse a development application for a broiler, that is meat production, poultry farm at lot 368 Henderson Road, Serpentine (site). The site is located approximately 48 kilometres south of the city of Perth and approximately 6 kilometres southwest of the town of Serpentine. It occupies a corner position and is bounded by Henderson Road to the south, Hopelands Road to the west and rural properties used for grazing to the north and east.
The proposed poultry farm would comprise 16 "controlled environment" growing sheds located in the northern part of the site, surrounded by a loop road accessed via a driveway from Hopelands Road, a caretaker's dwelling fronting Hopelands Road and service buildings including a sawdust storage shed, a biosecurity facility and a coolroom.
The development application was advertised and was the subject of 23 objections. At its meeting on 3 June 2005, the Shire considered a report from its senior planner recommending the grant of conditional approval to "stage 1" of the development comprising six poultry sheds and associated facilities. The Shire refused the application, essentially because it was not satisfied that the development would not have a detrimental impact on the amenity of the locality by reason of odour (including cumulative impact), noise and dust and because it would result in the clearing of remnant native vegetation.
In these reasons, the Tribunal will at first describe the site and locality, the proposed development and the statutory planning context. It will then identify and address the principal issues which arise for consideration in the review. Finally, the Tribunal will address certain disputed draft conditions of approval.
For reasons set out below, the Tribunal considers that the application warrants conditional approval. In particular, although the development will have impacts on properties in the vicinity in consequence of odour and noise generation, these impacts are reasonable in the context of the zoning and planning controls which regulate development of the site and of adjoining and adjacent properties and the pattern of surrounding land uses.
Site and locality
The site has a regular, rectangular shape. It has a frontage to Henderson Road and width of approximately 435 metres, a frontage to Hopelands Road and length of approximately 1315 metres, and an area of approximately 46.4 hectares. The site has been substantially cleared for grazing. There is some scattered and clumped vegetation in the northern part of the site, particularly adjacent to Hopelands Road, along a drainage channel which bisects the site approximately 250 metres from Henderson Road and around the existing dwelling house fronting Henderson Road.
The properties to the north of Henderson Road in the vicinity of the site are generally of comparable size to the site. These properties are used for a variety of rural purposes, including grazing, horse stud, training and agistment, turf farm, horticulture and intensive agriculture. The intensive agricultural uses in the vicinity of the site comprise a piggery approximately 400 metres to the northeast and four poultry farms located approximately 1200 metres to the northwest, 1500 metres to the north, 2200 metres to the northeast and 1200 metres to the east.
The properties to the south of Henderson Road in the vicinity of the site comprise generally larger rural properties than the site and properties to the north of Henderson Road. The properties to the south of Henderson Road are used for a variety of rural purposes, including grazing, horticulture and turf farm.
The closest urban residential area is approximately 6.0 kilometres to the northeast. The closest rural residential areas are the Karnup Creek Rural Living Area, located approximately 3.47 kilometres to the northwest and comprising predominantly 15 20 acre (6.07 8.01 ha) lots with some 5 acre (2.02 ha) lots, and the Serpentine Rural Living Area, located approximately 4.6 kilometres to the northeast and comprising predominately 5 acre lots.
Proposed development
The 16 proposed poultry growing sheds would run east-west in the northern part of the site. The northernmost shed would be set back 246.76 metres from the northern boundary. The southernmost shed would be set back approximately 515 metres from the southern boundary. The sheds would be set back 185.35 metres from the western (Hopelands Road) boundary and 100 metres from the eastern boundary. The service buildings are proposed to be located to the west of the poultry sheds with a minimum setback to Hopelands Road of 125 metres. The caretaker's dwelling is also proposed in this area with a setback of 50 metres from Hopelands Road. Revegetation is proposed along the northern side of the drainage channel and adjoining or adjacent to the western, northern and eastern boundaries of the site north of the drainage channel as well as in a central part of the site between poultry sheds 1 8 and 9 16. The existing dwelling fronting Henderson Road is proposed to be retained.
The poultry sheds have dimensions of approximately 18 metres by 158 metres. Construction involves concrete floors, concrete walls 400 millimetres above floor level and colorbond insulated metal walls and roofing. Each shed would contain multiple fans at its eastern end and one fan at its western end. The western fan and one of the eastern fans are "duty" or minimum ventilation fans used in a pulsed mode when birds are less than 14 days old and at night when only low ventilation rates are required. When cooling is necessary to maintain optimal shed temperature, such as during daytime, warm nights (greater than 22 degrees Celsius) and when chickens are older and larger and hence generate their own heat, the sheds operate in "wind tunnel" mode. In this mode, air is drawn through a number of fans at the eastern end of the shed, thereby cooling the birds through increased wind velocity.
Each shed would have a computer controlled shed management system comprising automated ventilation system, gas heating, temperature, humidity and pressure sensors, controlled lighting and automatic feed and water supply systems.
Broiler growing is conducted in eight week cycles approximately six times per year. Prior to the placement of the chicks, the sheds are prepared by covering shed floors with a 100 150 millimetre layer of dry litter such as sawdust or wood shavings. Each shed would be stocked with approximately 60 700 dayold chicks. During the first four weeks of the cycle, birds grow from approximately 40 grams to approximately 1.3 kilograms. During this period, shed temperature is reduced from an initial 32 degrees Celsius to 21 degrees Celsius.
In the fifth week of the cycle, the first "break in" or harvest occurs. Chicken catchers remove approximately 50% of the largest birds for slaughter offsite.
During the next 3.5 weeks of the cycle, the remaining birds grow from approximately 1.3 kilograms to 2.7 kilograms while shed temperature is maintained at or near a constant 21 degrees Celsius. During the seventh and eighth weeks of the cycle, the remaining birds are harvested. Immediately following harvest, the sheds are cleaned out of litter material, washed and disinfected in preparation for the next batch. The litter is cleaned out by a bobcat or similar small loader. It is then removed from the site by covered trucks.
Although there was some discussion during the hearing as to whether the 16 sheds would be operated in different phases, Big Country ultimately accepted a proposed condition that there be no staggering of growth cycles at the farm. While it would be expected that a development of the scale proposed would not be stocked with day-old chicks in a single day, the applicant accepted that all 16 poultry sheds would operate in a single phase and that the harvest and cleanout at the end of each cycle would be completed in all 16 sheds within a single period of 72 hours.
At full production, a total of approximately 971 200 dayold chicks would be placed at the farm at the commencement of each cycle. The assumed mortality rate is 4.5%. Consequently, the farm would produce approximately 927 500 birds each cycle.
Poultry farming is an intensive form of rural production. Moreover, in contrast to most forms of rural production, harvesting of chickens takes place at night to minimise the chickens' distress.
At full production, the farm would generate approximately 316 truck trips to and from the site each cycle, including refrigerated trucks (delivering the chicks, one truck per shed), 20 tonne bulk gas trucks, 20 tonne feed delivery trucks, 8 tonne dead bird trucks, 20 tonne semi trucks (bird catching) and 40 tonne trucks and trailers (clean sawdust and removal of litter). However, approximately 54% of truck movements in any cycle would occur during the seventh and eighth weeks and approximately 10% would occur during the first week. Therefore, almost twothirds of all truck movements would occur during three of the eight weeks of a cycle.
Statutory planning context
The site is zoned "Rural" under the Serpentine-Jarrahdale Shire Town Planning Scheme No 2 (TPS 2 or Scheme). The objectives of the Scheme include "to secure the amenity, health, safety and convenience of the inhabitants of the District" and "to zone land for the purposes described in the Scheme so as to promote the orderly development of the land by making suitable provision for land use". The purpose and intent of the "Rural" zone is "to allocate land to accommodate the full range of rural pursuits and associated activities conducted in the Scheme Area": cl 5.10.1. Land uses which the Shire may, at its discretion, permit in the "Rural" zone include feed lots, rural industries, pig farming and poultry farming: cl 3.2.1 and cl 3.2.2.
In determining the application for planning consent, the Shire (and the Tribunal on review) is required to have regard to matters including the following:
•the purpose for which the site is zoned under the Scheme;
•the purpose for which land in the locality is zoned or approved for use under the Scheme;
•the size, shape and characteristics of the site;
•any submissions received in response to giving public notice of the application;
•the orderly and proper planning of the locality; and
•the preservation of the amenity of the locality: cl 6.4.2.
Part X of TPS 2 establishes the "Poultry Farm Special Control Area" (SCA). According to the evidence of Cr Denyse Needham, the Shire President, the SCA comprises approximately onethird of the local government area. The site, the piggery and three of the four poultry farms in the vicinity of the site are not included in the SCA. However, the site is adjacent to the SCA on two sides, separated from it only by Henderson Road and Hopelands Road.
The adoption of Pt X by the Shire and its gazettal followed an 18 month process of community and industry consultation. A PoultryCommunity Liaison Committee was established comprising councillors, five community members and representatives of the broiler industry. The committee met on four occasions to discuss the development of a "protocol for expansion of the poultry industry in the Shire … to address the circumstances and locations in which Council would look favourably at applications for new poultry farm development, and the types of landscaping and operational regime which best address community concerns about such development". A Technical Subcommittee also discussed transport routes, landscape requirements, a preferred area for poultry farms and noise issues.
The general objectives of the SCA stated in Pt X are:
"1.To implement the Commission's Statement of Planning Policy No. 5 Poultry Farms Policy.
2.To implement Council's 2000 Rural Strategy Review, Poultry Policy Overlay, being Council's response to Statement of Planning Policy No. 5.
3.To provide Council with a policy framework acceptable to the broader community that will allow the poultry industry to relocate to within the Shire in an environmentally suitable manner."
The specific objectives of the SCA are:
"1.To ensure that new poultry farms are established in locations suitable to their operational requirements.
2.To minimise the impact of poultry farms on residential, ruralresidential and other potentially incompatible uses.
3.To protect the interests of existing poultry farms in the face of encroaching development."
Part X states that notwithstanding the Zoning Table, under which, as noted earlier, poultry farming is a use which may be approved at the Shire's discretion, "an application for a new poultry farm or expansion of an existing poultry farm within the [SCA] will be determined by Council as a 'P' use under the provisions of the Scheme", provided that the application satisfies the following criteria:
•controlled environment sheds or other superior best practice controlled environmental technology is used;
•there is an internal loop road;
•landscaping and screening is provided in accordance with the Shire's standards;
•all litter material and dead birds are disposed of off site;
•signage is placed indicating the type of operation, hours and possibility of undesirable impacts on the surrounding areas as specified in Sch 1 and Sch 2 of the Statement of Planning Policy No 5 - Poultry Farms Policy (now Statement of Planning Policy No 4.3 - Poultry Farms Policy (SPP 4.3));
•sheds of new poultry farms are set back at least 500 metres from any existing or future residential zone, 300 metres from any existing or future ruralresidential zone, 200 metres from any wetland and 100 metres from the boundaries of the farm;
•new sheds of existing poultry farms are set back at least 100 metres from the boundaries; and
•all application requirements have been provided and the Shire is "satisfied with the establishment, operations and management and the impacts of the proposed development on the local environs".
SPP 4.3 is intended "to guide the [Commission] and local governments in determining rezoning, subdivision and development applications for poultry farms". The Policy recognises "that poultry farms need to be located in or near urban areas to be accessible to feed mills, poultry processing facilities and markets". It also recognises that as some of the land now planned to accommodate future urban growth is located on or near existing poultry farms, there is "a need to provide guidelines on managing the impacts associated with existing poultry farms in or near future residential areas". The Policy's objectives are:
"•To ensure that new poultry farms are established in locations suitable to their operational requirements;
•To minimise the impact of poultry farms on residential, ruralresidential and other potentially incompatible uses;
•To protect the interests of existing poultry farms in the face of encroaching development; and
•To encourage the relocation of poultry farms on land required for residential or ruralresidential development.": cl 2.
The policy provisions require that, because of their potential impacts, new poultry farms should avoid existing or proposed residential or ruralresidential areas identified in current planning strategies or town planning schemes and Priority 1 surface and groundwater catchment areas: cl 5.1.1. New poultry sheds must be located at least 500 metres from any existing or future residential zone, 300 metres from any existing or future ruralresidential zone and 100 metres from the boundaries of the site: cl 5.1.2.
The Shire's Rural Strategy, which records its 15 20 year vision for strategic land use planning, identifies the site and locality as within the Rural Policy Area. The policy objectives of the Rural Policy Area include "to retain and maintain the productive capacity of land and agricultural enterprise in close proximity to Perth and its markets" and the list of "conditional" uses (as opposed to "desirable" and "undesirable" uses) includes "intensive agriculture". There is no proposal for the site or any land in the vicinity to be rezoned as a residential or ruralresidential area. As noted earlier, the closest ruralresidential areas are approximately 3.47 kilometres and 4.6 kilometres away.
Issues
The following four principal issues emerged for consideration in the review:
1.Is the development acceptable in terms of air quality impacts?
2.Is the development acceptable in terms of noise impacts?
3.Is the location of the development (outside the SCA) contrary to orderly and proper planning of the locality?
4.Is the remnant native vegetation proposed to be removed of such significance that it should be preserved?
The Tribunal will consider each issue in turn.
Is air quality impact acceptable?
Mr Christopher Gwynne, an environmental engineer with experience in agricultural air quality impact assessment, undertook a detailed air quality assessment of the proposed development in relation to both odour and dust. Mr Troy Powell, who is also an environmental engineer with experience in air quality assessment, was commissioned by the Shire to review Mr Gwynne's report. At the Tribunal's direction, Mr Gwynne and Mr Powell conferred prior to the hearing and prepared a joint statement of matters agreed, matters not agreed and the reasons for disagreement.
The air quality experts agreed that the odour modelling results in Mr Gwynne's report are reliable and provide the Tribunal with a reliable basis for making findings as to the likely true odour impact of the development, provided that the whole development operates in a single phase, not giving consideration to cumulative impacts. However, the experts disagreed as to whether the stated odour impact on affected rural dwellings is acceptable.
The proviso to the experts' agreement that the modelling is accurate, namely that the development must operate in a single phase, has significance in terms of whether shed cleanout odours should be specifically modelled. Mr Gwynne stated in his report that although anecdotally shed cleanout activities are associated with potentially high odour emission rates, the modelling did not make specific provision for air emission during cleanout, because this would occur only six times a year for only a few hours at a time, the modelling is otherwise conservative and previous modelling by Pollock and Friebel has indicated that inclusion of an allowance for shed cleanout in modelling did not discernibly affect odour contours. Mr Powell was "reasonably satisfied" with the work of Pollock and Friebel. However, if the operator were to stagger growth cycles, there would be more than six cleanouts per year and the odour increase due to cleanout "may then cease to be negligible". As noted earlier, the applicant accepted a condition limiting the development, including full operation at 16 poultry sheds, to a single phase operation. Moreover, the applicant accepted a condition that all bird catching and poultry shed cleanout operations at the end of each growing cycle must take place within a single 72 hour period.
The odour modelling indicates the impact of the development on the nine closest rural dwellings. Modelling was conducted using the Department of Environment supplied meteorological files for an entire year at Caversham in 1994 and at Hope Valley in 1995. These files have been verified by the Department of Environment as suitable for screening modelling for inland locations on the Swan coastal plan (Caversham) and coastal locations (Hope Valley). The modelling results for Caversham are considered representative of odour dispersion during a "poor dispersion" year whereas the results for Hope Valley are considered representative of a "good dispersion" year. Average dispersion is likely to be somewhere in between. Mr Gwynne's odour modelling did not take into account the near-field dispersion effect of 4.0 metre high earthen bunds or windbreak walls which are the subject of an agreed condition. The results of his modelling are, therefore, likely to be conservative.
The Odour Methodology Guideline published by the Department of Environment categorises odour strength from "very weak" to "extremely strong" on the basis of bands of odour units. "Distinct" odour strength is within the band 7/7.8 odour units (OU) 19 OU and "strong" odour strength is within the band 19/20 OU 42 OU.
Of the nine closest rural dwellings, four are located within the SCA and five outside the SCA. The three worst affected dwellings as a result of odour generated by the development are located within the SCA. The modelling predicts that these dwellings are likely to be exposed to odour emissions from the development exceeding 7 OU, that is "distinct" poultry odour, for minimum three minute concentrations for 2.2% of the year (193 hours, Hope Valley data) to 2.6% of the year (227 hours, Caversham data), 1.3% of the year (114 hours, Hope Valley data) to 1.7% of the year (149 hours, Caversham data) and 1.0% of the year (88 hours, Hope Valley data) to 1.5% of the year (131 hours, Caversham data), respectively. The likely maximum odour concentration for these three dwellings during part of these periods is 22 OU (Hope Valley data) to 29 OU (Caversham data), 16 OU (Hope Valley data) to 26 OU (Caversham data) and 20 OU (Hope Valley data) to 24 OU (Caversham data), respectively. This means that for part of the exposure period, these dwellings would be subject to "strong" poultry odour from the development.
The fourth worst affected dwelling is that located on the property immediately to the east of the site. That property would be subject to exceedance of 7 OU, that is "distinct" poultry odour, for minimum three minute concentrations for 0.1% of the year (9 hours, Hope Valley data) to 0.9% of the year (79 hours, Caversham data) and to maximum odour concentrations of 7 OU (Hope Valley data) to 24 OU (Caversham data). This means that in a poor dispersion year, this dwelling would be subject to "strong" poultry odour from the development for part of the 79 hours.
The remaining five closest dwellings would be subject to exceedance of 7 OU, that is "distinct" poultry odour, from the development for minimum three minute concentrations for 0.3% of the year (26 hours, Hope Valley data) to 0.8% of the year (70 hours, Caversham data) (two dwellings), 0.6% of the year (53 hours, Hope Valley data) to 0.8% of the year (70 hours, Caversham data), 0.1% of the year (9 hours, Hope Valley data) to 0.4% of the year (35 hours, Caversham data) and 0.1% of the year (9 hours, Hope Valley data) to 0.5% of the year (43 hours, Caversham data), respectively. The maximum odour concentrations from the development for these rural dwellings is 13 OU (Hope Valley data) 17 OU (Caversham data), 12 OU (Hope Valley data) 19 OU (Caversham data), 14 OU (Hope Valley data) 20 OU (Caversham data), 4 OU (Hope Valley data) 13 OU (Caversham data) and 4 OU (Hope Valley data) 18 OU (Caversham data), respectively. These dwellings would, therefore, be subject to "distinct" poultry odours from the development for the periods referred to, although the maximum odour concentration for four of these dwellings applying the Caversham (poor dispersion) data set would be in the higher part of the "distinct" odour band.
Mr Gwynne considered that the highest odour intensities likely to be encountered at nearby dwellings "are not inconsistent with a rural location". Mr Powell disagreed. In Mr Powell's experience, complaints are common at 4 6 OU, while widespread community complaints generally occur when odour concentrations exceed 10 OU. He considered that the affected rural dwellings "should not be disadvantaged over land zoned 'Residential'".
The experts agreed that, while cumulative impact should be taken into account, it is impossible on the basis of current scientific knowledge to fairly assess cumulative impact quantitatively. Mr Gwynne considered that, although the odour footprints of the four existing poultry farms and the piggery are not known in detail, their presence suggests that additional impact of the proposed farm is likely to be less significant than the impacts from the existing facilities. In particular, he considered that the odour generation potential from piggeries during activities such as effluent pond desludging is significantly higher than for a force ventilated poultry shed as piggeries do not involve "at source" dilution of odours. He also considered that the proximity of the SCA means that there would be a reasonable expectation of some impact from poultry odours.
Mr Powell identified two types of "cumulative" impacts. First, a property located between two odour sources will suffer cumulative impact because there is an increased likelihood of odour impact at any given time. Second, a property might be subjected to cumulative odour from two different sources at the same time. Although it would be reasonable to expect that multiple odour sources of the same nature would be additive, in some circumstances an odour greater than the sum of the individual odourant impacts can occur.
Mr Loris (John) Mitchell owns and resides at a similarly sized property to the site one removed to the east. The dwelling on Mr Mitchell's property is located adjacent to Henderson Road and the area around the dwelling has been carefully and attractively landscaped. Mr Mitchell resides at the property with his wife and two children. They agist generally 25 to 26 horses.
Mr Mitchell gave evidence that a couple of years after he purchased his property, the Sandy Brook Poultry Farm was established on the property one removed to the east. He and his family rarely suffered from smell or shed noise from that development for the first seven years. However, after modifications to the sheds, apparently to convert them from naturally ventilated to controlled environment sheds, Mr Mitchell's property has been subject to poultry odours, particularly in the evenings on an easterly breeze for three to four hours. The intensity of the smell is dependent on the growing cycle. It is much worse from mature chickens. It is worse in the summer. Mr Mitchell described the smell in the following terms:
"The smell is like ammonia. It is a strong smell. The moment you get out of the car or the house, it is right on your nose. It is offensive, off-putting and gives an unhealthy feeling to the air. Sarah [Mr Mitchell's wife] and I are both farm people, we have been brought up in a country environment, but the smells from the poultry farms are just not ordinary farm smells."
Mr Mitchell is particularly concerned that the development would result in offensive odours in the late afternoon/early evening "at a time we as a family wind down to enjoy the sunset and have our evening meal". These odours would be additional to offensive odours from Sandy Brook Farm when the wind switches from east to west.
Mr MJ Hardy, counsel for Big Country, contended that the preservation of the amenity of the locality is a concept which must take account of the zoning of the land, the predominant pattern of land use and the permissible nature of the proposed development. Specifically in relation to Mr Mitchell's evidence, Mr Hardy submitted that Mr Mitchell is seeking to obtain a level of protection for his amenity which would be consistent with a rural residential locality, but is not consistent with a residence in a rural locality. He submitted that the issue of cumulative impact had been adequately assessed qualitatively and that as the odour impacts from the development are capable of management, they should be deemed acceptable.
Mr PL Wittkuhn, counsel for the Shire, contended that, on the assumption that the modelling is (as agreed by the experts) reliable, the predicted rate and frequency of odour impacts on affected residences should be found to be unacceptable in terms of the preservation of the amenity of the locality. Furthermore, the addition of the proposed farm would greatly increase the chances that, at any given time, there would be mature (higher emitting) birds on one of the farms within the locality. The proposed development would, particularly with regard to wind direction and behaviour, widen the pattern of exposure of residences to odour.
The Tribunal considers that the odour impacts which would be generated by the proposed development in the locality are reasonable in the context of the zoning and planning controls which regulate development on the site and adjoining and adjacent properties and the pattern of surrounding land uses.
As noted earlier, cl 6.4.2 of TPS 2 requires the Tribunal to have regard to the preservation of the amenity of the locality. As Mr Hardy submitted, the practical application of this consideration must be informed by the zoning and planning controls which regulate use of the site and affected properties, the predominant pattern of land use and the permissible nature of a proposed development. Plainly, a resident of a rural dwelling in a locality where poultry farming is permissible at discretion or permitted and where approved poultry farms already exist cannot reasonably have the same expectation of residential amenity as a resident of an urban residential area or even a ruralresidential area where such development is prohibited. This is recognised by SPP 4.3 which states that "new poultry farms should be located on rural zoned land" and then seeks to minimise the potential for conflict between such development and existing or proposed residential areas or ruralresidential areas. The Tribunal does not accept Mr Powell's assessment of the acceptability of the odour impact, because it is premised on his view that rural dwellings should not be "disadvantaged" over residentially zoned dwellings. This view is inconsistent with the statutory planning framework.
As noted earlier, the three dwellings which would be most significantly affected in terms of odour in consequence of the development are located within the SCA. Another affected dwelling is also within that area. The Tribunal accepts the evidence of Mr Henry Dykstra, a town planner called by Big Country, that the location of a dwelling within the SCA particularly affects the level of amenity that residents of the dwelling could reasonably expect. In this regard, as noted earlier, the Shire is required to treat an application for poultry farming in the SCA as a "P" use if it satisfies the stated criteria set out in Pt X which are referred to at [31] above, in which case "the use is permitted provided it complies with the relevant standards and requirements laid down in the Scheme": cl 3.2.2 TPS 2. There is, therefore, a reasonable expectation that rural residences within the SCA will be subject to intermittent poultry odours of the nature which would be generated by the proposal.
The odour impacts which would be generated by the development on the five closest rural residences outside the SCA are also reasonable. Each of these properties is located either across the road from or within the proximity of the SCA. That topographical reality bears heavily on the reasonable amenity expectations of the residences in question. In particular, the same development as that proposed, but located across the road where the Shire would be required to treat it is a "P" use if the stated criteria are satisfied, would generate a similar level of odour impact. The Tribunal would consider the same development across the road as satisfying the stated criteria. In this regard, satisfaction with "the impacts of the proposed development on the local environs" must take into consideration the general and specific objectives of the SCA (see [29] [30]) and the requirement that a poultry farm incorporate controlled environment, rather than naturally ventilated, sheds. The same development across the road would, therefore, be approved.
Furthermore, the evidence shows that intermittent poultry and piggery smells are an established characteristic of the locality of the affected rural residences. In making this observation, the Tribunal does not say that the area is so "blighted" by intensive agricultural developments that the Shire or it "cannot properly or fairly object to another": cf City of Swan v Taylor [2005] WASCA 88 at [74]. It is certainly conceivable that a development having a more significant odour impact than the proposal in terms of exposure period and/or maximum concentration would be unacceptable in its context. However, it is significant that the development would not introduce a type of odour which does not already exist in the immediate locality. Depending on the circumstances, a poultry development may be unacceptable in an area not proximate to a special control area and in which residences are not affected at all by such smells.
Finally, a degree of odour amenity impact is reasonably contemplated by the zoning of the site and the sites of the affected rural residences. Clause 6.4.2 of TPS 2 requires the Shire and the Tribunal, in determining an application for planning consent, to have regard to the purpose for which the site and land in the locality is zoned. As noted earlier, the stated purpose and intent of the "Rural" zone is to "allocate land to accommodate the full range of rural pursuits and associated activities conducted in the Scheme Area". It is apparent from the list of discretionary uses capable of approval in the zone, the approved piggery and poultry uses in the vicinity of the site, and the Shire's Rural Policy Area Strategy that poultry farming falls within the "full range of rural pursuits" contemplated by the zoning.
It was Mr Gwynne's unchallenged evidence that "it is not possible to undertake" a rural enterprise of this nature without causing odour. Some odour impact on rural residences is reasonably contemplated by the planning controls. Of course, as discussed earlier, a poultry farm may not be appropriate in a particular case, notwithstanding that contemplation. However, the Tribunal is satisfied that this is not such a case.
The Tribunal recognises that the establishment of the proposed farm would increase the chance that, at any given time, there would be mature birds on one of the farms within the locality. It recognises that it is likely that the three properties between the site and Sandy Brook Farm, including the Mitchell property, would be impacted by odours from one farm when not impacted by the other and vice versa. The Tribunal also recognises that there is potential for the odour from the site to exacerbate impacts of other sites in the locality. However, the Tribunal does not consider that such "cumulative" impacts warrant the refusal of the proposed development. Such "cumulative" impacts which would occur are within the reasonable contemplation of the "Rural" zoning and the planning controls which regulate development of the site and the affected properties. For reasons discussed, some odour impact from a poultry farm on rural residences is reasonably contemplated. Moreover, neither the Scheme nor SPP 4.3 prescribes separation distances between poultry farms or the maximum number of farms, sheds or birds in any area. The Environmental Code of Practice for Poultry Farms in Western Australia (2004) states that it is best practice to maintain a separation of 1000 metres "for biosecurity reasons" (p 11). The development complies with this practice.
Finally, the dust modelling undertaken by Mr Gwynne indicates that the dust generated by the development would not exceed the standards prescribed by the National Environmental Protection Measure Guidelines for Ambient Air Quality published by the National Environmental Protection Council at any of the nine closest rural residences. This standard is designed for the protection of urban communities and its application is, therefore, conservative. Mr Powell considered that the dust assessment undertaken by Mr Gwynne is satisfactory.
Is the noise impact of the development acceptable?
Mr Daniel Lloyd, an acoustics engineer, undertook detailed noise modelling and assessment of the proposed development. He determined that, making the conservative assumption that all fans on the eastern side are operating simultaneously and worst case meteorological conditions, the noise generated at the poultry farm would comply at all times with the Environmental Protection (Noise) Regulations 1997 (WA) (Noise Regulations) provided that a 3.2 metre high earthen bund is constructed to the west of the sheds.
Mr Najac Ishac, who is also an acoustics engineer, was commissioned by the Shire to review Mr Lloyd's assessment. He agreed, with one qualification, that the development would comply with the Noise Regulations. The qualification is that Mr Lloyd's noise assessment does not include an LA10 prediction for concurrent operation of fans, forklift and trucks on the site. Mr Lloyd considered the trucks were not required to be included in the LA10 assessment, because they are likely to be operating for less than 10% of the representative time period. In his opinion, "it is unfair to take a small bite within that period".
The acoustics experts also agreed there is potential for higher noise emissions to occur on occasions due to air break relief or impact noise from trailers. They agreed that the impact noise from trailers could be reduced by ensuring that roads on the farm are smooth.
Mr Ishac suggested that the earthen bund proposed by Mr Lloyd on the western side of the sheds should be matched by an earthen bund on the eastern side. He considered that such a bund at 4.0 metres in height would reduce noise by 10 to 15 decibels. Mr Lloyd considered that a bund on the eastern side would reduce noise emission by about 12 decibels but would be unnecessary, because noise generated by the operation of the development, including catching of chickens at night, would in any case comply with the Noise Regulations. He conceded, however, that night-time activities "may be just audible" inside the closest rural residences. In his submissions, Mr Hardy relied on Mr Lloyd's evidence and contended that to require a bund on the eastern side would be to "overengineer" the site.
The Tribunal accepts Mr Lloyd's evidence that, as truck noise is likely to be present for less than 10% of the representative time period, it is not required to be included in the LA10 assessment. This is not to say, however, that trucks do not generate any noise at all. Moreover, although it is a rural use, poultry farming has some characteristics which are unusual in a rural context. Mr Mitchell gave the following evidence which was not challenged:
"In terms of volume, the noise is not all that different from other farm noise. However, it occurs at night, which is different from other forms of livestock. Also, chickens have a much shorter growing cycle than any other form of livestock, so the noise is far more frequent than other rural vehicle noise. Finally, poultry farming is a more intensive activity and a more landintensive form of rural use than any other livestock industry, so the noise is more frequent. This is in comparison to, say, beef cattle or sheep which is basically a yearly cycle. Poultry farming is an eight week cycle, which makes it about six times more frequent than any other form of livestock."
In light of Mr Lloyd's evidence that night-time operations "may be just audible" inside affected dwellings, the joint position that there is a potential for higher noise emissions to occur on occasions due to air break relief or impact noise from trailers, and the characteristics of poultry farming identified by Mr Mitchell - frequency, intensity and night-time operations the Tribunal considers that some additional noise mitigation is warranted to protect the amenity of the area. In particular, the Tribunal considers that an earthen bund 4.0 metres in height should be constructed on the eastern side of the sheds. Condition 32(i) in the annexure to these reasons gives effect to this consideration. The Tribunal is satisfied that, with the imposition of this condition, the noise impacts of the development would be acceptable.
Is the development contrary to proper and orderly planning of the locality?
Councillor Needham gave evidence that the SCA was developed by the Shire in response to "the tensions between the aspirations of the poultry industry and the aspirations of residents in relation to the location of poultry farms within the Shire". The concept of a special control area, which was described by Cr Needham as a "compromise" between the differing "aspirations", was justified as follows:
"•The industry gets the benefit of an easier pathway to approval through poultry farms becoming 'P' uses in the 'Poultry Overlay Area' (as it became known);
•The community has the expectation that, as that is the area where poultry farms are being directed, and that is happening so as to locate on larger lots and to avoid 'multiple impact', approvals outside the Poultry Farm Overlay Area should require a special case."
Mr Wittkuhn submitted that "it could not have been the intention of the Shire in introducing the SCA that all of the advantage went in favour of the industry and no advantage to the community". He submitted that, for a poultry farm development to be approved outside the SCA, a "fair case" or "strong case" should be presented.
Mr Dykstra gave the following evidence:
"The [SCA] does not alter the objectives for land use permissibility within the Rural zone, and hence does not alter the discretion of Council to approve a poultry farm within the Rural zone. Rather, the SCA makes it easier to apply for a poultry farm within this area by making this a 'P' permitted land use within this area."
Mr Hardy neatly summarised this evidence in opening by saying that "the SCA created an encouragement in that area, but without a concomitant discouragement outside that area".
The Tribunal accepts Mr Dykstra's evidence and Mr Hardy's submission. When Pt X was inserted into TPS 2, poultry farming did not become a prohibited use or even a special category of use subject to particular prescriptive or performance criteria in the "Rural" zone outside the SCA. As Mr Hardy said, the amendments created an encouragement without a concomitant discouragement. In this regard, the Shire elected to take a different path from that advocated in cl 5.6.3 of SPP 4.3, namely that where new poultry farms are included in a separate Special Use zone, they should generally be prohibited in all other zones. When questioned by the Tribunal as to why the Shire decided to neither prohibit nor impose any special requirements to obtain approval for poultry farming outside the SCA, Cr Needham stated that it was to permit existing poultry farms in the vicinity of the site to expand. However, if poultry farming had become prohibited outside the SCA, an existing poultry farm would be a "nonconforming use". Clause 4.2 of TPS 2 permits a person to extend a nonconforming use or erect, alter or extend a building used in conjunction with a nonconforming use with planning consent.
The Tribunal rejects the Shire's submission that a "special case" needs to be made out as to why a poultry farm should be located outside the SCA. TPS 2 does not require a "special case". Rather, it requires the Shire (and the Tribunal on review) to consider the application under the terms of the planning instrument and particularly having regard to the matters identified in cl 6.4.2. The Tribunal is satisfied that the development is acceptable in its context and is consistent with orderly and proper planning in the locality. As noted earlier, poultry farming is one of the "range of rural pursuits" contemplated by the purpose and intent of the zone. As also discussed above, the amenity impacts of the development are acceptable. Furthermore, the development complies with the objectives and policy provisions for new poultry farms stated in SPP 4.3.
Loss of native vegetation
As noted earlier, one of the Shire's reasons for refusal of the application was clearing of remnant native vegetation. This issue was also identified in the Shire's statement of issues, facts and contentions filed in the review. A statement of evidence by Mr Bradley Gleeson, a town planner, directed to this issue was filed by the Shire and became exhibit 7 in the proceedings. However, Mr Wittkuhn subsequently sought to withdraw the statement and indicated that he no longer relied on it. In his address, he did not make any submission in relation to loss of vegetation.
Once evidence becomes part of the Tribunal record, it cannot be "withdrawn". However, given that the witness was not called and could not be cross-examined, little weight should be given to the evidence. In any case, it did not demonstrate that the extent of clearing proposed is unacceptable.
As noted earlier, the site has been extensively cleared for grazing. The development would not require removal of trees at the Hopelands Road frontage and between sheds 1 8 or 9 16. The application proposes significant revegetation. The Tribunal is satisfied that the application does not warrant refusal on the ground of loss of native vegetation.
Finally, a number of objections raised concern about the visual impact of the development in consequence of removal of trees and erection of the poultry sheds. The Tribunal is satisfied that, with the construction of 4.0 metre high earthen bunds vegetated in accordance with a landscape plan approved by the Shire to the east and west of the sheds, the proposed revegetation and the separation distances between the sheds and the northern and southern boundaries, the visual impact of the development when viewed from the roads and neighbouring properties would be acceptable.
Conditions
Odour conditions
A joint report by Mr Powell and Mr Gwynne in relation to two draft conditions concerning air quality proposed by the Shire was filed following the hearing. The parties did not oppose the admission of the joint report into evidence and the Tribunal has treated it as evidence of the experts. Each party filed brief written submissions in relation to the joint report.
The experts agreed that aspects of one of the draft conditions (condition 34) are inappropriate and jointly formulated an alternative condition in three paragraphs. In their submissions, the parties accepted the alternative condition. The Tribunal considers that par (a) and par (c) of the alternative condition, which require the installation of steep earthen bunds or windbreak walls to disperse odours and the incorporation of odour minimisation measures outlined in the Environmental Code of Practice for Poultry Farms in Western Australia, are appropriate. The requirements of these paragraphs are contained in conditions 3 and 34(b) in the annexure to these reasons. However, the Tribunal does not consider that par (b) of the alternative condition should be imposed in the form drafted by the experts. Paragraph (b) states as follows:
"For every stage of development the proponent shall within twelve months of the commencement of one or more of the poultry sheds being used for the first time, produce an odour assessment report completed by a suitably qualified air quality consultant. The report should include results ground truthing of new shed odour and emission rates and an assessment of whether odour emissions are significantly different to those assumed in GHD's September 2005 (Ref 53584) report." (Emphasis added.)
As discussed earlier, the Tribunal is satisfied that the air quality impacts of the development are acceptable in the context of the statutory planning controls and the locality on the basis of the odour emissions modelling in Mr Gwynne's report. It is essential, therefore, that the conditions of consent require compliance with the odour emissions assumed in that report; it is not sufficient that the odour emissions not be "significantly different" to those assumed.
Moreover, in light of the nature and scale of the development, it is appropriate for air quality testing (or, as the experts refer to it, "ground truthing") to occur annually during the lifetime of the development. Condition 34 in the annexure to these reasons gives effect to these considerations. It requires the testing to occur during summer in the final week of a growth cycle when the birds are largest. It was Mr Mitchell's evidence that odour from Sandy Brook is greatest at these times.
Mr Powell and Mr Gwynne jointly consider that another draft condition proposed by the Shire, which in essence requires that maximum shed temperature from day 30 of the growing cycle be limited to 23 degrees Celsius, is not appropriate. The experts consider that the relationship between shed temperature and shed odour emission rates is not scientifically welldefined. Although temperature is a significant variable, there are many other potential reasons for variance in shed odour. Furthermore, measured shed air temperature is different to the temperature felt by birds when a shed enters "wind tunnel" mode. The effect of evaporative cooling and wind chill is not considered by the measurement of temperature alone.
The air quality experts suggest that "the intent of the Shire's proposed condition would be fulfilled by the ground truthing and odour assessment suggested above".
The Shire submits that aspects of the joint report "should not be accepted uncritically" and that the experts "misdirect[ed] themselves" when they recommended "ground truthing", because neither the Shire nor the Tribunal would be able to revisit the conditions and impose more onerous requirements. The Shire proposed an amendment to the draft condition to take into account the joint evidence in relation to wind chill.
The Tribunal does not accept even unanimous expert evidence "uncritically". However, the joint opinion of two qualified experts commissioned by the parties to assist the Tribunal to arrive at the correct and preferable decision is generally to be given considerable weight. Moreover, the Shire has presented no scientific evidence in support of the condition limiting shed temperature. The Tribunal agrees with the experts' suggestion that the intention of the Shire's condition would be fulfilled by ongoing monitoring and does not consider that the experts "misdirected themselves" as to "ground truthing".
The effect of condition 34 in the annexure to these reasons is to require odour emissions from the development to not exceed those assumed in Mr Gwynne's assessment and to require annual reporting by a qualified air quality expert to confirm whether this is the case and, if it is not, to indicate what measures or works must be undertaken to achieve compliance. If there is non-compliance, no further condition will be required to be imposed, as the developer/operator will have committed an ongoing offence and will, no doubt, seek to remedy that situation promptly. The air quality expert's annual report will indicate how that can be done. The Tribunal does not, therefore, consider that the Shire's proposed condition should be imposed.
Noise conditions
Big Country objected to draft condition 30 proposed by the Shire which requires that "reversing beepers are to be removed from all forklifts and tractors used on the property and alternative nonaudible warning measures such as flashing lights (subject to compliance with the relevant Australian Standard and any Worksafe Codes) are to be fitted to these vehicles instead". The Tribunal accepts the Shire's submission that reversing beepers are likely to be annoying, even if compliant with the Noise Regulations, and that an alternative warning measure should be fitted. As the Tribunal is aware of the possible use of "croakers" which are audible at close distances but substantially inaudible and much less annoying than beepers at greater distances, and as the intent of the condition appears to be to protect residential amenity, we have deleted the words "nonaudible" and "such as flashing lights" and inserted instead "which are nonaudible immediately adjacent to any dwelling on any adjoining or adjacent property". The condition would also permit nonaudible alternatives if compliant.
Condition 32(a)(i) requires the installation of an earthen bund at least 4.0 metres high between the sheds and Hopelands Road. As noted earlier, the Tribunal also considers that an earthen bund should be located on the eastern side as recommended by Mr Ishac. Big Country accepts the intent of the condition in relation to the western side, but would prefer the option of a different form of acoustic barrier. The Tribunal accepts the Shire's submission that, for aesthetic and maintenance reasons, an earthen bund (vegetated in accordance with the approved Landscape and Vegetation Management Plan see conditions 8 10) would be preferable.
The Tribunal also considers that annual noise monitoring should be undertaken by an acoustics engineer and provided to the Shire to ensure that the development complies with the Noise Regulations. Such a condition was not opposed by counsel. The monitoring should take place in summer at a time which includes the final week of a cycle, harvest at the end of the cycle and cleanout. It is to be expected that the sheds would operate in "wind tunnel mode" during this period. The acoustics experts agreed that, if the development exceeds the Noise Regulations, "retrofitting of noise control [of the fans] is a practical option".
Dust condition
Draft condition 37 proposed by the Shire requires that "all bedding materials placed within sheds, (ie sawdust) shall be treated (ie with oils) to reduce dust production". This was opposed by Big Country on the basis that there is potential for contamination and it is not in accordance with industry practice. The Shire did not call any evidence in support of the condition. As the air quality experts agree that dust emissions from the development would satisfy criteria applicable in urban contexts, the disputed condition is unnecessary.
Time limited consent
The Shire sought a condition that any shed not substantially commenced within two years must be the subject of a fresh DA. Mr Wittkuhn submitted that Big Country intends to initially construct only six sheds in any case and that the planning circumstances of the locality might change. The condition was opposed.
The Tribunal does not consider that a time limited consent is warranted in this case. The Shire called no evidence of any likely or even potential change in planning circumstances or character of the locality. The Shire's Rural Strategy envisages no change.
Conclusion
The Tribunal is satisfied that the proposed poultry farm development warrants approval under the provisions of TPS 2 subject to the conditions in the annexure to these reasons. When assessed in the context of the applicable zoning, planning controls and character of the locality, the odour impacts of the development, individually and cumulatively, are acceptable. The Tribunal is satisfied on the evidence that the development is likely to comply with the Noise Regulations. However, as an essential element of poultry farming is night-time activity and as it is an intensive form of agricultural development, it is appropriate in the circumstances of this case that there be additional mitigation to minimise noise impacts, particularly at night. The Tribunal, therefore, imposes a condition which requires the construction of a 4.0 metre high vegetated earthen bund on the eastern as well as the western side of the sheds.
While located adjacent to rather than within the SCA, approval of the application would not be contrary to orderly and proper planning of the locality. By the insertion of Pt X, TPS 2 encourages poultry farm development within the SCA, but does not discourage such development outside the SCA, subject to merit.
The Tribunal is satisfied that the proposed development, located on a large rural allotment, adjacent to the SCA, in the vicinity of four other poultry farms and a piggery, and a considerable distance away from the closest ruralresidential area, "represents good orderly planning for this locality and hence is worthy of planning approval with appropriate conditions" (to quote Mr Dykstra's evidence).
The extent of clearing required for the development is acceptable and significant revegetation is proposed. With the construction of 4.0 metre high vegetated earthen bunds to the east and west of the sheds, revegetation at boundaries and proposed setbacks, the visual impact of the development would be acceptable.
Orders
The Tribunal makes the following orders:
1.The application for review is upheld.
2.Development approval is granted for a poultry farm at lot 368 Henderson Road, Serpentine subject to the conditions in the annexure.
ANNEXURE
Big Country Australia Pty Ltd and Shire of SerpentineJarrahdale
SAT Proceedings No DR 498 of 2005
Conditions of Development Approval
1.The development shall be carried out in accordance with the Development Plan drawn by Dykstra Planning Ref 04/285/AA dated 6 October 2004 except as varied by these conditions.
2.A building licence shall be obtained prior to the commencement of any of the works the subject of this approval including earthworks.
Environmental Management Plan
3.An Environmental Management Plan (EMP) shall be prepared for the farm to the satisfaction of the Shire and shall be submitted to and approved by the Shire prior to the issue of a building licence for the works the subject of this approval. The EMP shall incorporate the odour minimisation measures outlined in s 3.7 of the Environmental Code of Practice for Poultry Farms in Western Australia (May 2004).
4.The approved EMP must be complied with at all times.
5.A report (audit) on compliance with the approved EMP shall be submitted to the Shire within 28 days of the completion of the first growing cycle and thereafter on an annual basis by the anniversary date of this approval. The annual audit must include:
(a)an identification of the sources and nature of all emissions, discharges and wastes generated on the site;
(b)an assessment of dust amenity (dust deposition) and health impacts (total suspended particulate, particulate matter less than 10 micron);
(c)an assessment of environmental impact associated with its operations and its compliance with planning and environmental requirements;
(d)an evaluation of its response to any complaints; and
(e)a review of operational and management practices relating to environmental performance and the management of environmental risk, including emergency response, contingency plans and other measures to prevent or minimise environmental impacts.
A suitably qualified and experienced person to the satisfaction of the Shire must conduct the audit.
6.In the event the Shire is not satisfied with any audit, the Shire may by notice in writing require the developer/operator to take the action stipulated in the notice in order to ensure the approved EMP is complied with.
7.Poultry shed design and management, management of stock feed, water, waste products and all other aspects of poultry farm operation are to comply with the management guidelines set out in the Environmental Code of Practice for Poultry Farms in Western Australia (May 2004).
Landscape and Vegetation Management Plan
8.Prior to the issue of a building licence for any poultry shed the subject of this approval, the developer shall submit for the Director of Sustainable Development's approval a Landscape and Vegetation Management Plan (Landscape Plan) that identifies requirements for weed control, details the protection of existing vegetation, and describes the densities and distributions of indigenous trees, shrubs, ground cover and shoreline plant species to be established in the areas designated for "proposed revegetation" on the plan referred to in condition 1. The Landscape Plan shall also include appropriate vegetation on the earthen bunds required to be constructed by condition 32(i).
9.The proposed development shall not commence until the Director of Sustainable Development has approved the Landscape Plan in writing.
10.The implementation of the approved Landscaped Plan shall commence within 12 months of the development approval being granted and is to be completed within three years of the development approval being granted. Vegetation on site is to be maintained in accordance with the approved Landscape Plan thereafter.
11.Prior to the commencement of site works, the developer shall provide a bond in accordance with Shire policy to the value of $7500 to the Shire. The bond may be in the form of cash, cheque or bank guarantee, and is a performance guarantee against satisfactory completion of the auditable completion criteria in the approved Landscape Plan. The performance guarantee will be refunded in full once the outstanding works are completed/established as required by the approved Landscape Plan. The bond is to be accompanied by a written authorisation from the owner of the land that the Shire may enter the land to complete or rectify any outstanding works in accordance with the approved Landscape Plan. The Shire may recover from the bond, or part of the bond, as appropriate the cost to the Shire, including administrative costs, of completing or rectifying any outstanding works.
12.Remnant vegetation and vegetation planted by the developer/operator must be fenced from grazing livestock in order to protect trees and other vegetation from damage.
13.No indigenous vegetation or trees shall be destroyed or cleared outside the footprints of the poultry sheds, caretaker's dwelling, service buildings and internal road shown on the plan referred to in condition 1 or to accommodate the earthen bunds required by condition 32(i) except, but subject to, the developer/operator obtaining the prior consent of the Council in writing, where such vegetation (dead or alive) is deemed as structurally unsound by a certified arboriculturist.
Drainage and Nutrient Management Plan
14.The developer shall prepare a Drainage and Nutrient Management Plan (Drainage Plan) for approval by the Director of Sustainable Development prior to the issue of a building licence for any of the approved poultry sheds and thereafter implement the approved Drainage Plan in its entirety.
15.The approved Drainage Plan must be complied with at all times.
16.The proposed development is not to commence until the Director of Sustainable Development has approved the Drainage Plan in writing.
17.The developer shall ensure that the use of water for washdown is minimised.
18.Any discharge of water (washdown water, stormwater) from the premises including seepage to groundwater, other than directly to sewer or septic cisterns, shall be via treatment in silt traps, nutrient extraction swales, detention ponds, settling ponds or other effective mechanism to remove nutrients and chemical agents to the satisfaction of the Shire.
19.Separate facilities should be provided for the retention of washdown (and other waste waters) and storm waters to prevent the settling pond overflowing during major storm events and not filtered waste water possibly impacting on the adjacent wetland as a result.
20.All water treatment facilities are to be regularly maintained to minimise the discharge of nutrients, total suspended dissolved solids, total suspended solids and other pollutants to ground and surface water resources.
Storage and disposal of chemicals, feed and waste materials
21.The developer shall store environmentally hazardous chemicals including, but not limited to, fuel, oil or other hydrocarbons (where the total volume of each substance stored on the premises exceeds 250 litres) within low permeability (10 9 metres per second or less) compound(s) designed to the satisfaction of the Shire to contain not less than 110% of the volume of the largest storage vessel or inter-connected system, and at least 25% of the total volume of vessels stored in the compound.
22.The developer shall immediately remove and dispose of any liquid resulting from spills or leaks of chemicals including fuel, oil or other hydrocarbons whether inside or outside the low permeability compound(s).
23.The storage, use and disposal of all chemicals including, but not limited to, pesticides, disinfectants and veterinary products is to comply with the manufacturers' recommendations.
24.No chemicals or potential liquid contaminants are to be disposed of on site.
25.Stock feed is to be stored within containers that prevent access by vermin and native wildlife.
26.All solid waste (including poultry litter and spilt feed) should be contained in weatherproof conditions (on a covered hardstand) until removed from the site for disposal at an approved facility.
27.Manure shall not be disposed of on site and all temporary stockpiles of manure are to be contained in covered storage compounds which maintain them in a dry condition and do not allow access by flies.
28.Dead birds shall be stored in a coolroom facility and removed from the site on at least a weekly basis for disposal at an approved facility. Vehicles used to remove dead birds from the premises shall be covered to reduce odour emission.
29.Feed deliveries shall only take place between the hours of 7 am and 7 pm.
Noise
30.Alternative warning measures to reversing beepers, which are nonaudible immediately adjacent to any dwelling on any adjoining or adjacent property, are to be fitted to all forklifts and tractors used on the site, provided that the alternative measures comply with the relevant Australian Standard and any applicable Worksafe requirements.
31.Any alarm associated with the operation of the poultry farm, including power supply, temperature and feed alarms, shall not be audible outside any building on the site. Where farm operators and employees are outside buildings, non-audible methods of notification such as personal pagers must be used.
32.Prior to the commencement of use of any of the poultry sheds, the following noise attenuation measures must be implemented:
(i)continuous earthen bunds at least 4.0 metres in height and vegetated in accordance with the approved Landscape Plan shall be constructed at the western edge of the internal roadway to the west of sheds 1 16 and at the eastern edge of the internal roadway to the east of sheds 1 16 and, in both cases, shall extend 20 metres to the north of the northern side of shed 1 and 20 metres to the south of the southern side of shed 16;
(ii)any plantrooms, including any backup power generator, are to be located between the western ends of the sheds and the required earthen bund on that side; and
(iii)all noise attenuation measures proposed in the report by Lloyd Acoustics entitled Environmental Noise Assessment Proposed Poultry Farm Lot 368 Hopelands Road, Serpentine dated September 2005 (reference 503338 04);
to the satisfaction of the Shire. The noise attenuation measures required by this condition must be maintained throughout the life of the development.
A building licence for the construction of any of the sheds approved by this consent shall not be issued until the Shire has received from the developer and has approved:
(a)specifications and elevation drawings of the earthen bunds required by par (i); and
(b)certification from an acoustics engineer that that development will all times comply with the Environmental Protection (Noise) Regulations 1997 (WA) or such equivalent regulations as might replace them.
33.(a) Noise generated by the operation of the farm shall at all times comply with the Environmental Protection (Noise) Regulations 1997 (WA) or such equivalent regulations as might replace them.
(b)Within 12 months of the commencement of use of one or more of the poultry sheds, and thereafter annually during the lifetime of the development, the developer/operator shall commission an acoustics engineer agreed to by the Shire to undertake, at the developer/operator's full cost, a noise assessment of the operation of the farm in summer at a time which includes the final week of a growing cycle, harvest at the end of the cycle and shed cleanout, indicating whether the development complies with par (a) of this condition and in the case of any noncompliance what measures or works must be undertaken to achieve compliance. The acoustics engineer shall provide a copy of the report to the Shire at the same time as providing the report to the developer/operator. The Shire shall make the report available for public inspection.
Odour
34.(a) Odour emissions from the development shall not exceed those assumed in the report entitled Big Country (Australia) Pty Ltd Proposed Poultry Farm Lot 368 Hopelands Road, Serpentine Odour and Dust Assessment Final Report by GHD dated September 2005 (reference 53584).
(b)Prior to the commencement of use of any of the poultry sheds, steep earthen bunds or windbreak walls 4.0 metres in height shall be constructed as close as possible to the tunnel fan ends of the shed in order to assist in dispersing odours. If the Shire is satisfied on the basis of a report from an environmental engineer with experience in odour emission and mitigation that the earthen bunds required by condition 32(i) would have substantially the same effect in dispersing odours as any of the earthen bunds or windbreak walls required by this condition, the relevant earthen bund or wall otherwise required by this condition need not be constructed.
(c)Within 12 months of the commencement of use of one or more of the poultry sheds, and thereafter annually during the lifetime of the development, the developer/operator shall commission an environmental engineer with experience in odour emission and mitigation agreed to by the Shire to undertake, at the developer/operator's full cost, an odour assessment report involving odour monitoring of the operation of the development in the final week of a growth cycle, in summer, indicating whether the odour emissions from the development comply with par (a) of this condition and in the case of any noncompliance what measures or works must be undertaken to achieve compliance. The environmental engineer shall provide the report to the Shire at the same time as providing it to the developer/operator. The Shire shall make the report available for public inspection.
35.A building licence shall not be issued for the construction of any of the poultry sheds approved by this consent until the Shire has received from the developer and has approved specifications and elevation drawings of the earthen bunds or windbreak walls referred to in condition 34(b) unless the earthen bunds or windbreak walls need not be constructed in accordance with that condition.
Dust
36.Prior to the commencement of use of any of the poultry sheds the developer is to provide certification from an environmental engineer with experience in dust emission modelling that the sheds' ventilation system incorporate measures to reduce the emission of dust to a target of 50 mg m3 and, so as not to have greater than five exceedances per year, to the satisfaction of the Shire.
37.[Deleted].
38.Fan blades, screening and hoods shall be washed out with water rather than blown out with air.
39.Litter removal from the sheds shall be scheduled for times when dust nuisance to neighbours is likely to be minimised to the satisfaction of the Shire.
40.The developer shall prevent the generation of visible particulates (including dust) from accessways, trafficked areas, stockpiles and machinery from crossing the boundary of the premises by using where necessary appropriate dust suppression techniques.
Lighting
41.Outside lighting is to be kept to a safe minimum and should be angled to minimise light impacts on neighbouring properties.
Engineering
42.The access driveway to the poultry sheds shall be located on the north side of the proposed caretaker's dwelling in a location to the satisfaction of the Shire.
43.A single crossover to be provided for access to both the dwelling and the sheds.
44.Crossovers to be constructed in accordance with Serpentine-Jarrahdale standard industrial crossover specifications and be located to the satisfaction of the Shire.
45.Concrete aprons shall be constructed between the sheds and the internal roadway.
46.The section of Hopelands Road fronting the crossover shall be widened to 9.80 metres in pavement width with 7.40 metres wide asphaltic concrete seal to the satisfaction of the Shire. All costs associated with the construction of the crossover referred to in condition 43 and the widening and construction referred to in this condition shall be at the expense of the developer of the subject site.
47.All internal roadway surfaces within the site are to be constructed of a suitable material such as paving, road base, limestone or course gravel and compacted to limit dust generation. Any potholes or other breaks in the internal road surface are to be fixed within seven days.
48.A maximum speed limit of 20 kph shall be applied to all internal roadways and vehicle accessways and a sign to this effect shall be displayed at the entrances to the site and adjacent to the location of the sheds.
49.The movement of any oversize vehicle within the meaning of the Road Traffic Act 1974 (WA) to or from the site will require the separate approval of the Shire.
Visual Amenity
50.The external cladding of the sheds shall be in a colour that is consistent with the earthy or vegetation colours present on the site.
Signage
51.Notices indicating the type of operation, hours of operation and potential impacts of the poultry farm operation are to be displayed adjacent to both the Hopelands Road and the Henderson Road frontages of the site in accordance with the specifications contained in Statement of Planning Policy No 4.3 Poultry Farms Policy to the satisfaction of the Shire. The notices must state that development approval for the construction of 16 poultry sheds on the site has been granted.
Stocking, harvesting and cleaning of poultry sheds
52.There shall be no staggering of growth cycles of birds on the site.
53.All bird catching and poultry shed cleanout operations at the end of each bird growth cycle shall take place in all poultry sheds on site during a single period of no longer than 72 hours.
I certify that this and the preceding [97] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR D R PARRY, SENIOR MEMBER
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