1. The decision of the Responsible Authority is varied. The Tribunal directs that Permit No. P10/1681 must contain the conditions set out in the Permit No. P10/1681 issued by the Responsible Authority on 30 November 2010 with the following modifications:
   • (a) Condition 1B deleted;
   • (b) Condition 9 and 10 replaced by the following:

"9. Prior to the commencement of the development and/or use of the dwelling hereby permitted, the applicant must submit a Land Management Plan to the satisfaction of the Responsible Authority. This plan is to include the following matters:

(i) The permit holder is to be fully aware of the potential emissions and nuisances associated with agricultural activities and within, adjoining and adjacent to the land;

(ii) Ways and means of responsibly managing dogs and cats to prevent attacks on livestock an d native fauna within and adjacent to the site;

(iii) Management of the land detailing the ongoing use of the land for productive agricultural purposes.

1. A copy of this management plan must be retained within the dwelling and brought to the attention of subsequent residents of the dwelling. This plan must be implemented and adhered to at all times. The terms of the plan must not be altered or amended without the prior written approval of the Responsible Authority."

2 The Responsible Authority is directed to issue a modified permit in accordance with this order under the provisions of Section 85(1)(e) of the Planning and Environment Act 1987.

The proposal is to develop and use the land for a dwelling. The dwelling is single storey and to be sited within an existing cleared area in the central west portion of the land. It is to be accessed from the existing driveway from Bittern-Dromana Road. It provides four bedrooms, an office, three bathrooms and three living areas with a north facing deck leading off from the living areas.

Green Wedge Zone Schedule 2, Environmental Significance Overlay Schedule 4 (ESO4 Eastern Peninsula), Vegetation Protection Overlay (VPO2 Significant Treelines), and Environmental Significance Overlay (ESO 28, Mornington Peninsula Bushland.

Clauses 11.04-6, 11.05-3, 12.04-2, 14.01-1. 14.01-2, 16.02-1. 21.03-1, 21.09, 22.14, 57 and 65.

The site is on the north side of Bittern-Dromana Road about 2.5 km north of the Balnarring town centre and 5 km from the Bittern township. It is regular in shape, with a frontage of approximately 100 metres to Bittern-Dromana Road, a depth of approximately 402 metres, and an area of just under 4 hectares. About 85% of the land is planted with grape vines, with a cleared area in the central west portion of the land which is to contain the approved dwelling.

The surrounding area is agricultural in land use, with a vineyard to the east (Balnarring Vineyard), another to the south on the other side of the road (Hofferts, Balnarring Estate Winery), and grazing land on other abuttals.

1. The review applicant seeks to develop and use a dwelling on the land. Council has issued a permit subject to conditions. This review is to review two of these conditions. They are Condition 1B and 9.
2. The Tribunal must hence decide whether these two conditions should be deleted, retained or amended. In doing so, it must give effect to the Mornington Peninsula Planning Scheme ("the Scheme").
3. Condition 1B requires amendment to the submitted plans to show:
   1. A site plan showing the two existing sheds and the wanter tank retained in their current location.
4. Condition 9 requires:
   1. Prior to the commencement of the use and development hereby permitted the Applicant must enter into an Agreement with the Responsible Authority pursuant to Section 173 of the Planning and Environment Act 1987 providing for the following matters to the satisfaction of the Responsible Authority:

1. The permit holder indicates that they are fully aware of the potential emissions associated with the agricultural activities and proceed with the use and development of their dwelling in full knowledge that one of the objectives of the Green Wedge is to accommodate productive agricultural use and that this activity should be expected and that they are aware of their obligations in relation to proper land management. 2. all dogs and cats must be responsibly managed to prevent attacks on livestock and native fauna.

1. The submission of a Land Management Plan to the satisfaction of the Responsible Authority detailing the ongoing use of the land for productive agricultural purposes.

1. All costs associated with the drafting and registration of this Agreement on title are to be borne by the permit holder.

This Agreement must be registered by the Applicant on title prior to the commencement of the development of the dwelling pursuant to Section 181 of the Planning and Environment Act 1987.

1. I note that these two conditions were imposed at Council's Development Assessments Committee on 29 November 2010. They did not form part of its officer's recommendation.
2. I have considered the submissions of the parties and had regard to the provisions and policies of the Scheme. Assisted by my inspection of the site, I form the view that Condition 1B is not justified, and Condition 9 should not be a Section 173 agreement.
3. This review is limited in scope, to the extent of the contested conditions. The overall merits of the proposal have been settled in the issue of the permit.

Whether Condition 1B requiring the existing sheds to remain in their current location justified?

1. The proposed new dwelling is to be sited in a cleared area in the central west portion of the vineyard/land. Within this cleared area are located two sheds and a water tank. The larger shed (7.5 x 6m) is a store for farm chemicals, tractors, farming equipment and garden tools. The smaller sheds (2 x 3 m) houses the electric pump and pump equipment for the bore on the land, this bore being the source of water to irrigate the vines. There is a water tank in this group of building and structures.
2. Condition 1B requires these structures to stay where they are instead of being moved as proposed to the east side of the land near the large shed at the vineyard to the east at No. 60 Bittern-Dromana Road.
3. At the outset, Council acknowledged that there can be difficulty in retaining all these structures where they are, as the smaller shed is located within the footprint of the house (verandah). It was hopeful that this group of structures can still be located within 2000 sq m in the cleared area.
4. Council's reasons for retaining these structures where they are were for the purpose of clustering buildings and structures in order not to detract from the scenic and landscaping qualities of the area, and for the development of the dwelling not to encroach on the agricultural productivity of the land. With regard to the proposed relocation of the sheds and water tank to be near the large shed at the adjoining vineyard, Council contended that there is no way of knowing whether this shed in the neighbouring property will be removed and leaving the relocated sheds not part of a cluster.
5. Mr. Livingston, on the other hand, submitted that there is currently an unwritten Councillor policy of grouping sheds to avoid visual clutter in the landscape. He submitted that the proposed re-siting of the sheds and water tank still achieves a clustering of sheds. It was also clear to him that this condition would not work as one of the sheds is within the footprint of the approved house.
6. He advised that the larger of the two sheds to be relocated stores farm chemicals, pesticides, fertilisers and equipments, which should not be too close to the house. The location of the sheds on the eastern edge of the vineyard and on an access tracks would enable workers accessing these sheds without disrupting the house.
7. My inspection of the site and area confirms the low visibility of these sheds and water tank when viewed from Bittern-Dromana Road. The large shed at the adjoining vineyard, however, is highly visible. This shed is probably the most important farm building of that vineyard, as it houses the wine making equipments and appears to be their cellar door. There are other new storage sheds near this large shed.
8. From a landscape point of view, there is not much difference whether the shed is located where they are or in the shadow of the large shed at the neighbouring vineyard.
9. I agree with Mr. Livingston the reason to locate the larger shed away from the house, as it is to store farm chemicals and machinery. Relocating it to be near the large shed next door also achieves the clustering effect that council is looking for.
10. I thus see no justification that these structures have to stay where they are. One down side of retaining these structures in-situ is the compromising of the outlook from the house. The orientation of the house is to the north, the direction of these structures.
11. My initial concern was that the relocation of the structures would reduce the amount of land area available for the vines, thus affecting the agricultural output of the land. The amount of land affected, however, is small. This condition will thus be deleted from the permit.

Whether the permit condition requiring a Sec. 173 agreement is warranted?

1. The second permit condition contested is the requirement for a Sec. 173 agreement to covenant the land. The matters to be covenanted are:
   • The permit holder to be fully aware of the potential emissions associated with the agricultural activities and proceed with the use and development of their dwelling in full knowledge tat one of the objectives of the Green Wedge is to accommodate productive agricultural use and that this activity should be expected and that they are aware of their obligations in relation to proper land management.
   • All dogs and cats must be responsibly managed to prevent attack on livestock and native fauna;
   • The submission of a land management plan detailing the ongoing use of the land for productive agricultural purposes.
2. This agreement is to be at the cost of the permit holder and to be registered on title.
3. Council's reason for this agreement is to ensure that productive agricultural farms of strategic significance in the area are protected. It submitted that it is entirely reasonable to impose such a condition to ensure the ongoing use of the land for productive agricultural uses and protect the expectations of surrounding landowners. It understands that the permit applicant's reluctance to accept this condition was because he may be bound to the use of the land as a vineyard. To ameliorate this, Council was prepared to amend the condition so that an alternative on-going agricultural use of land is possible.
4. Mr. Livingston on the other hand submitted that a Sec. 173 agreement is unnecessary, and that requirement contained in this agreement does not meet the criteria for an agreement under Sec. 174 of the Act. Further, to him, such an agreement, similar to a permit and its conditions, runs with the land and that a sec. 173 agreement is no more effective than a permit condition. He, nonetheless, concedes that a Land Management Plan is appropriate. His recommendation is to replace Condition 9 and 10 with the following:

That the use of the land for a dwelling must at all times be in association with the use of the land for bone fide agricultural purposes that requires a dwelling on the land and that a Land Management Plan demonstrating the need for the dwelling must be prepared all to the satisfaction of the Responsible Authority.

1. I share Mr. Livingston's concerns on the use of a Sec. 173 agreement: its costs, cumbersome nature, and similar effectiveness as compared to a permit condition.
2. However, I am not persuaded that his recommended replacement condition goes far enough and give adequate certainty of what is expected of the owner and residents of the new dwelling approved for this small lot. I accept Council's view that agricultural pursuit and production is of priority in the Green Wedge area and lifestyle residential use of the dwelling and land, which the property may become, is contrary to the current Green Wedge, rural and agricultural policies of the Scheme.
3. I would substitute a Sec. 173 agreement with the requirement of a permit condition for a Land Management Plan which is to contain the terms proposed in the agreement. The related Condition 10 will also be replaced by one that requires the implementation of this plan.

1. The proposal is to develop and use a relatively small rural holding in the Green Wedge Zone for a dwelling. This review is about two permit conditions. I have consider the merits of both, and came to the view that the Condition requiring all the sheds and water tank to stay where they are as not justified; and the condition for a Sec. 173 agreement also not justified. Instead, it is converted to a permit condition requiring a Land Management Plan and amending a related condition (condition 10) as an implementation tool of this management plan.