Facts
Parties and procedural history:
The respondent [L.] , a farmer operating in the agricultural zone of Murten (Canton of Fribourg), submitted a construction application on 26 November 2018 for the construction of a new poultry fattening barn for 9,000 chickens (in addition to an existing barn for 4,500 chickens). Several objections were raised against the project by the local residents. The Directorate for Spatial Planning, Environment and Construction of the Canton of Fribourg (RUBD, now RIMU) granted a special permit subject to conditions on 11 November 2019, and the Seebezirk District Office issued the construction permit on 23 December 2020. The objectors filed appeals with the Fribourg Cantonal Court on 26 and 29 January 2021, which were dismissed on 10 January 2022. The appellants filed an appeal with the Federal Supreme Court on 10 February 2022 against this decision.
Facts and subject matter of the dispute:
The dispute concerns the zoning conformity of the project in the agricultural zone and compliance with immissions protection provisions, in particular the minimum distances for odour immissions to inhabited zones. The appellants allege, among other things, a violation of the right to be heard, insufficient examination of the internal intensification in accordance with Art. 36 SPO, non-compliance with the minimum distances for odour immissions and inadequate balancing of interests in the choice of location. The respondent maintains the validity of the permit and offers to install an air scrubber (biowasher) to reduce immissions.
Considerations
1. Admissibility of the appeal:
The Federal Supreme Court admits the appeal since the appellants are entitled to appeal (Art. 89 para. 1 FSCA) and the appeal was filed in a timely manner. The allegation of a violation of the right to be heard due to the premature granting of the special permit is examined, with the Federal Supreme Court assuming a cure in the cantonal court proceedings. The allegation of an insufficient reply period is not considered due to lack of sufficient justification (Art. 106 para. 2 FSCA).
2. Zoning conformity of the project:
The Federal Supreme Court examines whether the construction of the new poultry fattening barn qualifies as internal intensification in accordance with Art. 36 SPO in the agricultural zone. The calculations by the Office for Agriculture (LwA) regarding the contribution margin and dry matter balance are deemed sufficiently justified since the appellants had access to the relevant forms and statements. The requirements for internal intensification are thus met, meaning that the project is zoning-compliant.
3. Choice of location and balancing of interests:
The cantonal court considered the respondent’s choice of location necessary since the new construction is on the main property of the farm and simplifies operations. The appellants argue that no alternative locations were evaluated and that the location is in a scenic exposed position (near an ISOS object and a BLN area). The Federal Supreme Court notes that while the authorities have discretion in balancing interests, a comprehensive examination of alternative locations would have been required. The proximity to the farm centre alone does not justify the use of quality A crop rotation areas (CRA), particularly if this leads to significant landscape impairments. However, the question of the choice of location remains open since the project is not approvable for reasons related to immissions protection.
4. Immissions protection and minimum distances for odour immissions:
The Federal Supreme Court examines compliance with the minimum distances for odour immissions to inhabited zones in accordance with Art. 11 EPA and Annex 2 No. 512 OAPC. It finds that the calculations, both according to the Agroscope Recommendations 2018 and the Draft…