1. Peter McGregor & Carol McGregor are each joined as a party.
2. The decision of the Responsible Authority in relation to permit application no. 11/0292 is affirmed. No permit is granted.

Mr Peter O'Farrell of counsel. He called the following witness -

• Mr Russell Holloway, farm manager of the subject land

Mr Philip Rosevear, town planner, Surf Coast Shire Council

Mr Bruce Dupe, for himself and Susan Rechenberg-Dupe

Peter McGregor, Carol McGregor & Peter Fogarty, all in person

Application under section 77 of the Planning and Environment Act 1987

Clause 35.07-1 (use of land for a host farm in the Farming Zone)

Clauses 10, 11, 12, 14, 17, 21.04, 21.05, 21.06, 22.01 & 65

The land is on the east side of Centre Road, Wensleydale, about 11 km south of Winchelsea. It is rectangular in shape, but has an angled rear boundary to an unmade road. It has a frontage of 404 m to Centre Road and an area of 38.8 ha. The land falls to the north. It is extensively cleared. There is a dwelling centrally located between the north and south boundaries and is setback about 280 m from Centre Road. There is a large shed, setback about the same distance, but located near the southern boundary of the land.

1. Mr Blackney acquired the subject land in 2006. The previous owner had sought and obtained a permit under the Surf Coast Planning Scheme (the scheme) to construct a dwelling. Mr Blackney successfully sought to amend the permit to construct a larger dwelling containing five bedrooms and two large living rooms. He completed its construction in late 2008.
2. Soon after, he made the dwelling available for short-term holiday rentals for up to about 21 people. Guests can currently make internet bookings where the advertised rental is up to $990 per night. Mr Blackney says he and his family occupy the dwelling from time to time but concedes it is not their principal place of residence.
3. About two years ago, the Surf Coast Shire Council told Mr Blackney that holiday rental use of the dwelling was prohibited in a Farming Zone under the scheme and that the use must cease.
4. Mr Blackney originally contended that holiday rental use comes within and is part of the permitted use of the land for a dwelling. The Council disagreed and prepared to enforce the scheme. In July 2011, Mr Blackney forestalled those steps and applied for a permit to use the subject land for a host farm to legitimise the ongoing use. The Council states it will not further consider enforcement action until the application is finalised.
5. The Respondents own or occupy land near the subject land and oppose the grant of a permit. The Council refused to grant a permit. Mr Blackney has applied to the Tribunal to review the Council's decision.
6. The main issues in this proceeding are -
   • Whether the proposal is properly characterised as a host farm.
   • Whether this host farm satisfactorily responds to policy in the scheme.
   • The impact of this proposal on the rural environment.
7. After considering the submissions and evidence, I have decided that the Council made the correct decision to refuse a permit and I will affirm that decision. My reasons follow.

1. Is the proposal properly characterised as a host farm? A host farm is -

A farm used to provide accommodation for persons living away from their normal place of residence, to experience farm living.[2]

1. The two key questions are whether the land is a farm and whether guests are provided with a farm experience.

1. A 'farm' is not a defined term in the scheme. I must therefore rely on its ordinary meaning, which emphasises use for agriculture. Agriculture is a defined term.
2. For planning purposes, the proper emphasis is on the nature of the activities and not financial sustainability of the agricultural activities. Mr Holloway concedes the land has recently been in poor a condition for farming. It had been neglected for too long. Mr Blackney has completed some fence and stock water improvements. A hay crop is now regularly grown. More recently (in fact, after he applied to the Council for the permit), Mr Blackney introduced cattle and sheep and currently grazes about 30 of each for meat and wool production. He has also planted a 30-plant orchard.
3. For planning purposes, the land is used for agricultural activities. I am not sure and I do not need to determine whether agriculture is the dominant use of the land or whether the dominant use is accommodation and the agricultural activities are ancillary. The small scale and recent nature of the agricultural activities raises doubt about whether there is a dominant or separate use of the land for agriculture, but I will proceed on the basis that the agricultural activities constitute a farm.

1. The more problematic issue is whether guests are provided with a farm experience.
2. The experience must be made available at the farm at which the accommodation is provided. If this were not the case, the reliance on a farm experience on land far away from the accommodation would defeat a practical experience and undermine the hosting concept. While the experience might include visits to nearby farms, it must include a substantial part on the farm at which the accommodation is provided.
3. An 'experience' must be more than just being at a farm. It must be more than merely being given information about what happens at the farm. It connotes the opportunity to involve guests in what goes on at the farm. There must be a real and not tokenistic experience, based on the circumstances in a particular case. Nonetheless, guests do not have to be immersed in a farm experience for the whole of their stay and may take excursions to places of interest in the surrounding area.[3]
4. In this case, the person who farms the land does not provide the farm experience. The farmer does not reside on the farm. Mr Blackney lives nowhere near the farm. Since making the dwelling available for holiday rentals, he has engaged a local person to clean the home between guests and attend to minor maintenance. This will remain the case. There is no evidence that guests will be physically greeted when they arrive. They will continue to check in and check out themselves.
5. The farm experience guests will receive on the farm will be wandering around the farm themselves or by asking the farm manager for a 'farm tour' or both.
6. Wandering around a farm at which hay is grown and observing a few cattle and sheep is a low quality farm experience. Mr Blackney also offers limited recreational activities such as riding go-karts and climbing a tree house. These recreational activities are not a farm experience or, in this case, ancillary to a farm experience. Offering these activities has led to other issues, to which I will soon refer.
7. Mr Holloway is the farm manager. He was appointed in November 2011, after the application was made. He lives in the district several kilometres away. He is not a full time manager. Plainly the activities are too modest to support a full time manager. He visits the farm from time to time to check on fences and animals and organises contractors to undertake various tasks. He is not an employee. He submits invoices for his work. He is authorised to make no decisions about the farm. For example, he does not select and acquire animals.
8. He attached a farm plan to his statement of evidence. He did not prepare the plan or contribute to its preparation. He did not know who did prepare it or what are that person's qualifications or experience in preparing farm plans. The author was not called to give evidence. Mr Holloway was not familiar with its provisions.[4]
9. Based on his oral evidence, I characterise Mr Holloway's role more as a caretaker than a farm manager.
10. When guests arrive, there is a notice inviting them to contact Mr Holloway if they want to book a farm tour. Mr Holloway cannot guarantee the supply of a tour. He may be otherwise occupied at his own farm or with other matters.
11. Guest groups consisting only of adults are rarely interested in a farm tour. A group with children is more likely to request a tour. If Mr Holloway is available, he visits and 'explains' what happens at the farm.[5] He shows and describes the animals. He often hitches a trailer laden with hay to his tractor and helps the children hand feed the animals. He sometimes takes guests to see nearby kangaroos. The tour usually takes about one hour.
12. Mr Holloway has provided relatively few farm tours. Under questioning, he stated he had only given 19 tours since offering them nearly one year ago.
13. In my view, there is not much that happens at this farm that could provide guests with a real farm experience. Neither the farmer nor his manager are normally available to provide guests with the opportunity for a hands-on farm experience. The farm tour is not readily available, is more explanation than demonstration, and a hay ride to feed stock is tokenistic.
14. I therefore find that the proposal provides guests with an inadequate farm experience and this factor mitigates against the grant of a permit.

1. This proceeding highlights the tension between the scheme's farming and tourism policies.
2. The scheme emphasises the benefits of tourism need to be balanced against matters such as pressure for tourism development in rural locations which can compromise agricultural activities.[6] Although agriculture-based tourism development can assist with rural economy diversification, it is policy that development be small scale and in character with the agricultural environment. It is also policy that tourism development be discouraged from locating in prime farming areas, particularly in areas with an open rural landscape.
3. The land is in the Council's Bambra/Pennyroyal landscape precinct which is identified as good agricultural land mainly used for grazing. The scheme notes that the varied terrain and fragmented landholdings and coastal proximity has encouraged tourism developments. In this precinct, the objective is to -

Support rural based tourism that complement natural resources of the area and enhance the rural farming base.[7]

1. This land is in the Farming Zone, reflecting the quality of the agricultural land and the priority given to encouraging agricultural activities.
2. Unsupervised groups of about 20 guests (or even a limit of 14 guests as proposed by Mr Blackney) in one large dwelling is not, in my view, a 'small scale' tourist development. It is equivalent to about four separate and smaller units each housing a family or group of four guests. The unsupervised nature of the accommodation means there is the possibility of additional unauthorised visitors coming to the dwelling to join or stay with the larger group.
3. This host farm is of a scale and type that poorly responds to policy mainly because it does not enhance the rural farming base.

1. The Respondents own or occupy adjoining land. They oppose the grant of a permit largely based on the impact of the existing unauthorised host farm.
2. The McGregors own, reside on and farm abutting to north. They are qualified farmers with over 10 years experience. They farm an area of 124 ha in a number of parcels. They are both involved with the local Landcare group and the CFA. They run breeding cattle. They are registered with Meat Standards Australia.
3. Their dwelling is near the boundary of the subject land. Their preferred calving paddock is near their dwelling so they can quickly assist with calving. It has well-established infrastructure, such as a cattle crush. Party-related noise from the host farm has frightened late-pregnant cows and, as a result, the McGregors have moved the calving area to a more distant part of their farm. It is not as well supervised from the dwelling and has poorer farm infrastructure. I accept the conduct of guests at the host farm has largely caused this less-efficient change to their farm operations.
4. The host farm has caused fire risks. Mr McGregor has had to extinguish an unsupervised fire. He has also had to tell guests, in his capacity as a CFA leader, to cease use of the petrol-powered go-karts in a tinder-dry paddock on the subject land on a total fire ban day. He reported that both Mr Blackney and the guests were unconcerned about this fire risk.
5. The McGregor's dwelling is about 600 m from the dwelling on the subject land. The dwelling on the subject land is on a prominent rise on cleared land. The fall in the land towards their dwelling and the cleared condition of both lots does little to mitigate the visual and acoustic impact, especially if the dwelling is lit up late at night and people are on the verandah. Mrs McGregor submitted they have been regularly disturbed by large boisterous often-intoxicated groups of guests. Stock have also been disturbed by recreational firearm use by guests at the host farm. The police have been called on a number of occasions. She tendered a detailed log of conduct since December 2008.
6. Mr Fogarty fattens steers and grows hay on his small 29 ha farm abutting to the south. Mr Dupe and his wife run sheep and two host farm cottages opposite on the east side of Centre Road. They live on the farm and supervise the guests. He submitted that his farm has been disturbed by guests from the subject land trespassing his farm and riding unregistered motorbike use on local roads. He submits there has been more than one wedding function at the host farm based on what he has observed and on booking inquiries for his host farm units.[8]
7. On behalf of Mr Blackney it was submitted that I should give weight to the principle established by the Tribunal in Van Egmond,[9] and later summarised by the Court in Tulcany,[10] that 'a permit applicant should neither be punished nor rewarded for undertaking work before a permit was obtained'.
8. I readily adopt that principle and I do not penalise Mr Blackney for starting the unauthorised use about four years ago and for the occasions and events at the host farm that have lead to impacts on the surrounding area or that he concedes are regrettable and should not have occurred. I also accept that principle that if some impacts could be mitigated by permit conditions, the starting point should be that the conditions will be observed.
9. However, the advantage of considering an application to legitimise an existing use or development is the clearer assessment of its future impacts. The Respondents have persuaded me that the host farm has operated with regular disturbance to its neighbours and their farming activities.
10. A complex set of permit conditions could be drafted to mitigate a number of the impacts. However, this is a host farm that has not provided and does not propose to provide a real farming experience. There remains real risks for adverse impacts of guest conduct on farming activities. Therefore, permit conditions do not overcome my conclusion that this largely-unsupervised host farm providing accommodation for a large group of guests under one roof is one that should not be authorised.
11. The parties relied on a range of Tribunal decisions concerning host farms. In those decisions there was variety in the type non-urban zone, in the type of farm and its activities, in the size of the farm, in the scale and size of accommodation and in the policy context for tourist accommodation in the relevant scheme. It is therefore difficult to draw clear principles.
12. However, there is one common thread to all the decisions and that is that the farmer lived on the host farm and provided the farm experience. While this may not be a specific requirement in the scheme for a host farm, it is a feature that demands more favourable consideration in a host farm application.

1. This host farm is an unsatisfactory planning outcome and, for the above reasons, the Council made the correct decision to refuse a permit. I will affirm the Council's decision.

[1] Maxine & Rod Wiltshire objected to the Council against the grant of a permit and filed and served a late statement of grounds. They did not attend the hearing and were not joined as parties. I have taken their statement of grounds into account in accordance with s 98 of the Victorian Civil and Administrative Tribunal Act 1998.

[3] Schiavello v Yarra Ranges SC [2009] VCAT 1237 at [24].

[4] The farm plan provides for increasing the numbers of sheep to 50 and cattle to 50 once pasture has been improved. I preferred the opinion of Mr McGregor, an experienced and qualified farmer, that this stocking rate is unsustainable without regular hand feeding.

[5] Mr Holloway included in his witness statement that he 'demonstrates' farm activities but corrected this before adopting the statement that he only 'explains' farm activities.

[8] Mr Blackney concedes there was one unauthorised wedding which he submitted that he took steps to ensure would not be repeated.

[9] Van Egmond v City of Knox (1985) 1 PABR 249 at 250.

[10] Knox CC v Tulcany Pty Ltd (2004) 18 VPR 229 at 233.