This submission describes the subject land and environs and the planning policy context and controls. It then describes the proposal in some detail, and the reasons why Council has supported the application (planning considerations). The planning considerations generally respond to the matters raised by the Review Applicants.

The subject land is Lot 1 (of 4 lots) on PS 127332. This subdivision was approved back in 1979 (by the former Shire of Hastings), although the Title for the subject land was created in 2002. The parent title was in two zones (Rural Residential 2 and Intensive Farming) and the subdivision created three lots in the portion of the land which was in the RR2 and left the balance of Title (the subject land) in the Intensive Farming Zone.

The land has an area of 8.102 hectares, and is used for `extensive animal husbandry' (as advised by the applicant). This is defined as follows:

Land used to keep or breed farm animals, including birds, at an intensity where the animal's main food source is obtained by grazing, browsing, or foraging on plants grown on the land. It includes:

1. the incidental penning and housing of animals, including birds, for breeding, weaning, dipping, or other husbandry purposes.

Existing improvements on the land (refer air photos) include:

• A driveway which enters the site at the southern end of the frontage, and which then runs in an east-west direction through the `centre' of the land.
• Paddock on the north side of the driveway. This area also contains a dam towards the north-west corner.
• A number of horse enclosures (each with a horse shelter) along the south side of the driveway.
• A ménage area at the south-east corner of the land.
• An earth bund wall has been constructed along the frontage (and is the subject of a retrospective permit application).

The site is cleared of vegetation, although trees have recently been planted along the south side boundary and part of the east side boundary to provide future screening from neighbours.

The rear of the site is "unimproved" and is where the house and associated outbuilding subject of this review are proposed to be sited.

A separate planning application (P08/2976) has been lodged with Council for cleaning out and resealing the existing dam, and for retrospective approval of the bund wall which has been constructed along the frontage.

As noted already, the subject land is in the GWZ, and its southern boundary is the UGB. The properties to the east, south and west (opposite side of the Frankston-Flinders Road and Stony Point Railway) are in the LDRZ.

The other three lots in the subdivision which created the subject land are to the rear (east) of the subject land, and are accessed via Grant Road. One of these lots (Lot 2, or 76 Grant Road as it is now known) adjoins the subject land, with the development on this lot (a dwelling and associated barn) being sited close to the common boundary with the subject land.

The Bowden property (985 Frankston-Flinders Road) adjoins to the south, and is a triangular-shaped lot with a dwelling which has been sited central to the lot with a view outlook over the subject land.

Two GWZ properties adjoin the subject land to the north:

• 925 Frankston-Flinders Road contains a dwelling and several outbuildings, with screening vegetation along its boundaries.
• 82 Grant Road also contains a dwelling and several outbuildings, and comprises paddocks (grazing).

The LDRZ area to the west is physically separated from the subject land by the Frankston-Flinders Road and the railway (and also by the bund wall which has been constructed across the frontage of the subject land).

The rural landholdings (GWZ) in this wider area are generally quite fragmented, and there are probably as many being used for "lifestyle" purposes as there are for legitimate rural purposes.

1. I note that at the end of the hearing, I asked Mr Newman to provide to me a summary of how the relevant lots further north from the appeal site are currently used and improved. In due course I received this information from Mr Newman, and I have taken this further information into account of my findings.
2. In terms of the relevant planning framework, we know that the site is zoned Green Wedge Zone (Schedule 2) and also affected by a Environmental Significance Overlay (Schedule 1 - Moorooduc Plain and Balcombe Valley).
3. The key State planning policies here are set out at Clauses 11 and 16.03 (which deals with rural living and rural residential development). With respect to the Council MSS provisions and local policies, the main ones are Clauses 21.06, 21.09, 22.03 and 22.06.
4. In terms of the relevant planning permit triggers here, a permit is needed for a permit in the Green Wedge Zone (Schedule 2) and the ESO1.
5. I note that Clause 57 also applies and lists a number of prohibited uses, potentially including dwellings, but this does not apply here as the proposed dwelling will be the only dwelling on the lot. Hence the position remains that a "dwelling" is a permissive use under the Green Wedge Zone (Schedule 2).
6. I note there was some discussion at the hearing regarding how to characterised the existing use of the land. The passage I have quoted above from the Council written submission already includes a definition of "Extensive animal husbandry". Other relevant definitions from the Planning Scheme are as follows:

Land used to board domestic pets, such as boarding kennels and a cattery.

(a) breed or board domestic pets; or

(b) keep, breed or board raising dogs

Land use to keep or breed farm animals, including birds, by importing most food from outside the enclosure. It does not include:

(a) an abattoir or sale yards;

(b) emergency and supplementary feeding if incidental to the use of land for extensive animal husbandry; or

(c) the penning and housing of animals, including birds, for brooding, weaning, dipping or other husbandry purposes if incidental to the use of land for extensive animal husbandry.

1. I shall now return to the two key issues which I have identified in my introduction.

How should the existing use of the subject land be characterised?

1. Both Council and the Permit Applicant argued during the hearing that the existing use of the land is for "Extensive animal husbandry" which is an as-of-right use under the GW2 zoning. I have set out above the definition of this use.
2. By contrast, the Applicant for Review argued that the current use of the land is nothing more than some form of keeping of horses as pets. In this regard, Mr Connor confirmed during the hearing that there are currently four horses on the appeal site, all owned by the Permit Applicant. Mr Connor otherwise indicated that there has been some reaping of hay from the more open section of the land, which apparently has been sold for a profit.
3. In all circumstances, I am not satisfied that the existing use constitutes "Extensive animal husbandry", for the following reasons.
4. Firstly, an important aspect of the definition is that the land must be used to keep or breed "farm animals". It was put to me by Mr Connor that in the situation here, the horses in question do constitute a "farm animal", with this line of thinking also being supported by the planning witness Ms Katz. This was disputed by Mr Torrington on behalf of the Applicant for Review.
5. My finding here is that a horse can constitute either a "farm animal" or a "domestic pet", or for that matter a "racing animal", depending on the circumstances. In other words, I do not the situation here is black or white - rather it is a question of how the horses are in reality being used.
6. In applying this line of thinking, the evidence before me points to the four horses here being used essentially as pets. Whilst the position might have been different if there was any real evidence of commercial horse breeding activities occurring or if at least some of the horses were owned by third parties and there was reliable evidence of an arms-length commercial agistment arrangement which has been operating for some time, this is not the case here. Accordingly, I am struggling to see how the circumstances here are different in any meaningful way to the situation of a family living on a generous size lot with some form of residential zoning, and then keeping several horses of their own as pets.
7. The other key aspect of the definition of "Extensive animal husbandry" is that the main food source of the relevant animals must be "... obtained by grazing, browsing, or foraging on plants grown on the land". There was strong disagreement during the hearing whether or not the relevant horses can primarily sustain themselves by grazing on the pasture/grass on the appeal site, as compared to a situation where the horses need significant supplementary feeding. Whilst I note that Ms Katz as part of her evidence indicated that she runs her own farm and offered the view that the horses here had sufficient pasture to require only minimal supplementary feeding, she was appearing as a planning not a farming expert. Hence I can give this aspect of her evidence only modest weight.
8. In a situation where there are conflicting submissions whether there is enough pasture on the subject land to provide the primary food for these four horses, and where there is no suitable expert evidence presented to me on this issue, then this makes it very difficult in practice for the Tribunal to resolve this issue in the Permit Applicant's favour.
9. In summary then, in the circumstances in question here, I am unconvinced that the Permit Applicant has established that the keeping of the four horses in question on the subject land involves these horses being "farm animals", whose main food source is simply the available pasture on the site. Rather, I see the preferable characterisation of the existing activity as being a form of "Animal keeping" which is an as-of-right use under the GW2 with only four horses involved.
10. It reflects poorly on the Delegate Report which supported the proposal that was completely silent regarding this "characterisation" issue in relation to the existing use of the land. This in turn means that less weight can be given to the support for the proposal from both the Delegate Planner and Council.

Would the proposed new dwelling and stables be a reasonable planning outcome on land zoned Green Wedge Zone, with the associated planning policies?

1. It is worth repeating here the purposes of the Green Wedge Zone, as follows:

To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

To recognise, protect and conserve green wedge land for its agricultural, environmental, historic, landscape, recreational or tourism opportunities, and mineral and stone resources.

To encourage use and development that is consistent with sustainable land management practices.

To encourage sustainable farming activities and provide opportunity for a variety of productive agricultural uses.

To protect, conserve and enhance the cultural heritage significance and the character of open rural and scenic non-urban landscapes.

To protect and enhance the biodiversity of the land.

1. In terms of the contents of the Schedule 2 to the Green Wedge Zone, this adds little to the basic position, other than confirming that the minimum subdivision here is 40 hectares.
2. With respect to the MSS provisions and local policies, I see the key one as being Clause 21.09 which is "Planning for rural areas". I have set out below a useful summary of the key aspects of this policy, taken from pages 5 and 6 of the Council written submission.

A major aim of this clause is to recognise the complexity and inter dependence of the Peninsula's rural values, and to provide a framework that will maintain them into the future. This framework is expressed in terms of three components:

• Conserving environmental values (clause 21.09-1). The objective is "To maintain and enhance the natural values and ecological systems of the Peninsula".
• Supporting agriculture and primary production (21.09-2). The objective is "To support the use of rural land for farming to the maximum extent that is environmentally sustainable and consistent with maintaining landscape character."
• Maintaining and enhancing landscape, cultural and recreational values (21.09-3). The objective is "To maintain the recreational role of the Peninsula by protecting the qualities of its landscapes, natural heritage and cultural heritage."

The strategies to achieve these objectives (to the extent they are relevant to the application at hand) include:

• Utilize a land unit approach to provide a framework for sustainable land use and environmental management.
• Promote the provision of drainage, sewerage and other waste disposal facilities to lessen pressure on environmental systems.

• Recognise the productive capacity of rural land on the Peninsula and the value of maintaining agricultural land as part of the Peninsula's strategic planning framework.
• Support sustainable agricultural land use as a means of effectively managing and conserving rural land and landscapes and achieving the productive use of land for agricultural purposes.
• Protect rural areas from encroachment by containing township growth within defined boundaries.
• Prevent the establishment of use and development that is incompatible with agricultural activity.

• Protect the landscapes, seascapes, coastlines and waterways of the Peninsula, paying particular regard to:
  • ° Protecting the integrity of the landscape and natural features in both rural and township areas.
  • ° Visual sequences along access routes.
• Require that the location, design and construction of buildings and works are compatible with the special character and heritage of each area.

Implementation measures to give effect to these strategies include use of the GWZ and the ESO.

1. In summary, it is clear to me that there is a quite rigorous zoning and policy framework here, in terms of the type of development which is seen as appropriate and which is promoted in a Green Wedge Zone location such as this. In particular, the various objectives of the Green Wedge Zone are clearly seeking to encourage development which is compatible with and will promote genuine/sustainable agriculture/farming activities, together with the cultural heritage/scenic value of the open rural and scenic non-urban landscapes the different areas of the land zoned Green Wedge Zone.
2. Putting this in simple terms, both the objectives of the Green Wedge Zone and the relevant provisions of Clause 21.09 make it clear to me that the bar is set quite high, in terms of what form of development is seen as suitable on this type of site zoned Green Wedge Zone. In particular, these provisions indicate to me that it is much easier to justify a new dwelling, where that dwelling is demonstrably required by (or at least complementary to) genuine/sustainable agricultural/farming activities that will operate on the subject land.
3. For the reasons already set out above, my finding is that I do not accept that there is any genuine agricultural/farming activities currently taking place on the subject land. I do not see this situation as fundamentally changed by the proposal to create the stables as part of the facilities available for horses on the appeal site. Rather, I see the proposed development of the stables as simply being another aspect of what I regard as being the keeping of horses by way of "Animal keeping".
4. At the end the day, I see this as being essentially a domestic type of dwelling proposal with some horse-keeping flavour, which one would commonly expect to see put forward on land zoned Residential 1 or Low Density Residential Zone. Indeed, if the appeal site had for example been zoned Low Density Residential Zone, it may well be that the merits of the type of new dwelling proposed here would be much easier to justify.
5. However the reality is that the subject land is zoned GW2, and in these circumstances I see it as a "square peg trying to go into a round hole" situation where a large two storey dwelling and associated stables is proposed here without any real connection with any existing or proposed genuine farming/agricultural activities. I am struggling to see that this type of proposal can gain any real traction if one reviews the objectives of the Green Wedge Zone and the relevant provisions from Clause 21.09.
6. For the removal of any doubt, I regard any monies which currently are being earned from slashing hay on the subject land as being a fairly token commercial aspect to the operation of the land currently, which carries no significant weight. The area available for slashing is constrained and at the hearing I was not provided with any real evidence as to the extent of and income earned by such slashing.
7. While these are more secondary factors, I also have some concerns whether a two storey house over 9 metres in total height is compatible with this type of rural landscape/character. In my experience rural dwellings in this type of location are commonly large/sprawling but single storey. If there are other planning permit applications on foot for the site, it would also be better to deal with the whole situation on a "one stop shop" basis, to avoid a piece-meal development outcome.
8. I note that both the Delegate Report and Ms Katz's planning report emphasise that the appeal site has some suitable characteristics for this type of proposal. I have some sympathy per se for this line of thinking. However neither of these documents in my view grapple in any meaningful way with the policy considerations I have discussed above, together with the compatibility of the proposal with the objectives of the GW2. The risk I see here is that the GW2 objectives will be emasculated if in practice they are either ignored or paid lip service to.
9. Whilst I recognise that a number of lots further north are not dissimilar in size and feature a dwelling, I do not see this as changing the basic situation and conclusions I have reached, given that:
   • I would expect many of these dwellings to have been built before the GW4 was introduced;
   • at least some of these properties are being used for a genuine farming/agricultural activity (when driving north of the appeal site during my inspection I sighted an Alpaca farm and what appeared to be strawberry growing); and
   • surely one of the things that the shift to the GW2 zoning is trying to achieve is avoiding further land fragmentation in an urban fashion. In my view this proposal would indirectly worsen this fragmentation problem by allowing essentially a domestic type of use with no credible connection to any genuine/sustainable agricultural/farming activities on the site.
10. Finally, I note that the title provided by Council for the site indicates that the current owners bought the site on 7 August 2007, being well after the time at which I understand the GW2 was introduced for this site. Hence the constraints of the GW2 should hardly be a surprise to the current owner.

1. For the reasons set out above, the proposal is refused.