A protracted legal battle over a series of broiler farms in Baringhup looks set to continue, after the Court of Appeal upheld a final legal challenge from a group of residents living close to the proposed development.
Subscribe now for unlimited access.
$0/
(min cost $0)
or signup to continue reading
A planning application for three broiler farms, with a combined capacity of 400,000, was initially knocked back by the Mount Alexander Shire Council in 2015, and subsequently overturned by the Victorian Civil and Administrative Tribunal in 2016.
VCAT’s decision was supported by the Supreme Court in early 2017 but those decisions were in part set aside by three Court of Appeal justices on Tuesday, who sent the legal battle for two of the three farms back to the state’s planning umpire.
The appeal, driven by residents group Save the Moolort Plains, was made on four grounds, one of which stated that two houses situated within the required separation distance of 686 metres from the proposed farms were not considered during the VCAT hearing.
The houses were built before VCAT made its ruling.
The Court of Appeal ruled that VCAT was required to consider the facts in existence at the date of its decision, including the existence of any new dwellings within the separation distances.
Court of Appeal justice Pamela Tate said: “The orders of the tribunal concerning Farms 1 and 2 should be set aside and the proceeding remitted to the tribunal in respect of the permit applications for Farms 1 and 2 to be determined according to law. In the remitted proceeding it will remain open for the first respondent to pursue the question, if he wishes to do so, that the houses on the Forbes and Smith land are not sensitive uses or involve a ‘sham’ in that they were constructed for the purpose of preventing the approval of the first respondent’s proposed broiler farms.”
In upholding the appeal, acting Court of Appeal justice Karin Emerton said: “Grounds 1 and 3 have been made out. The errors are vitiating errors. However they concern only the tribunal’s orders in respect of Farms 1 and 2. There is no new dwelling near proposed Farm 3. Accordingly, the orders of the tribunal concerning Farms 1 and 2 should be set aside and the proceeding remitted to the tribunal in respect of the permit applications for Farms 1 and 2, to be determined according to law.”
Save the Moolort Plains spokeswoman Marg Lewis said the community was “pretty happy with the result” and would await the next move of the applicant, Pavilion Partners director Michael Vukadinovic.
“We anticipate that VCAT will issue procedural orders in the coming weeks and list the matter for a directions hearing. We note, however, that the court has left open the possibility of Vukadinovic arguing that the dwellings are a sham and ought be disregarded,” she said.
Mr Vukadinovic could not be reached for comment.
The broiler farm application, first lodged in 2013, received 900 objections at the time.
The residents group in February admitted defeat in a legal fight against a 325,000-head broiler farm at Strathlea, which was approved by VCAT in December.
