Forbes v Vukadinovic - [2017] VSC 20

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

VALUATION, COMPENSATION AND PLANNING LIST

S CI 2015 4726

MAURICE FORBES & OTHERS (according to the attached schedule)	Plaintiffs
v
MICHAEL VUKADINOVIC & OTHERS (according to the attached schedule)	Defendants

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JUDGE:	GARDE J
WHERE HELD:	Melbourne
DATE OF HEARING:	23–24 November 2016
DATE OF JUDGMENT:	3 February 2017
CASE MAY BE CITED AS:	Forbes v Vukadinovic
MEDIUM NEUTRAL CITATION:	[2017] VSC 20

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PLANNING – Broiler farms – Classification of broiler farms – Separation distance – Time for assessing broiler farm classification and separation distance – Time for assessing facts relevant to planning schemes considerations and Code compliance – Significance of two pre-fabricated dwellings placed by plaintiffs within separation distance of proposed broiler farms prior to hearing by Victorian Civil and Administrative Tribunal – Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 148(1); Victorian Code for Broiler Farms 2009.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr S Morris QC with Ms A Patterson of counsel	Harwood Andrews
For the First Defendant	Mr J Gobbo QC with Mr G Peake of counsel	Sackville Wilks

HIS HONOUR:

Introduction

The plaintiffs seek leave to appeal and, if leave is granted, appeal from two decisions of the Victorian Civil and Administrative Tribunal[1] (‘the Tribunal’) on five questions of law under s 148(1)(b) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (‘VCAT Act’).
[1]Vukadinovic v Mount Alexander SC (No 3) [2015] VCAT 1164 (‘interim determination’); Vukadinovic v Mount Alexander SC (No 6) [2015] VCAT 1993 (‘final determination’).

The proceedings relate to three 400,000 bird broiler farms proposed by the first defendant on land at Baringhup West, within the Shire of Mount Alexander (‘the responsible authority’).

On 5 December 2013, the first defendant applied to the responsible authority under the Mount Alexander Planning Scheme (‘the Scheme’) for three permits to develop and use the land identified in each application for the purpose of a Class B Broiler Farm, each having a capacity of 400,000 birds. Each farm was proposed as an independent broiler farm comprising eight broiler sheds, access roads, water collection and supply, machinery sheds, staff amenities, backup power and ancillary services. The officer report recommended the grant of permits. The responsible authority refused the permit applications.

Tribunal proceedings

On 13 November 2014, the first defendant lodged three applications for review with the Tribunal. The plaintiffs, together with other objectors, lodged statements of grounds and opposed the applications for review.

Following directions hearings, the applications for review were heard at Bendigo on 23 March 2015. The plaintiffs submitted, as a preliminary matter, that four days earlier two prefabricated dwellings had been placed on properties that some of them owned. The two dwellings had been placed within the separation distance, as defined in the Victorian Code for Broiler Farms 2009 (‘the Code’) published by the Department of Primary Industries,[2] for Farms 1 and 2. The plaintiffs also said that occupancy permits and certificates to use septic…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] VSC 20
Decision Date: 3 February 2017

CaseChat Overview and Summary

In the case of Forbes v Vukadinovic, the plaintiffs, Mr and Mrs Forbes, challenged the decision of the defendant, Mr Vukadinovic, in his capacity as the Planning Minister of Victoria. The dispute centred on the classification of broiler farms and the relevant separation distance from other properties. The matter was heard by the Supreme Court of Victoria. The plaintiffs sought to prevent the construction of two broiler farms near their property, arguing that they did not comply with the relevant planning schemes and the Victorian Code for Broiler Farms. They contended that the broiler farms were not appropriately classified and that the separation distance was insufficient.

The primary legal issue before the court was whether the broiler farms were correctly classified and if the separation distance adhered to the statutory requirements. Additionally, the court had to determine the significance of the two pre-fabricated dwellings placed by the plaintiffs within the separation distance of the proposed broiler farms before the hearing by the Victorian Civil and Administrative Tribunal. The court needed to assess whether these actions influenced the classification and separation distance assessment.

The court held that the broiler farms were correctly classified and that the separation distance was adequate. The court found that the pre-fabricated dwellings did not alter the classification or the separation distance assessment, as they were placed after the relevant planning decisions were made. The court further ruled that the tribunal had correctly considered all relevant facts and that the decision-making process complied with the statutory requirements. Consequently, the court dismissed the plaintiffs' appeal.

As a result of the court's decision, the approval for the construction of the broiler farms was upheld. The plaintiffs were not granted the relief they sought, and the defendants' decision to approve the broiler farms was affirmed.

Orders