The order of the Tribunal is that the decision of the Responsible Authority is affirmed.

The Tribunal directs that a permit must not be granted.

Mr G Ford appeared for the Victorian Farmers Federation

1 This is an application to review the decision of the Responsible Authority to refuse permission for the use of land at Ballantynes Road, Nagambie for the purpose of a dwelling and the construction of sheds. The Responsible Authority issued a Notice of Refusal to Grant a Permit for the following reasons:

1. The proposal is contrary to the Strathbogie Planning Scheme

2. The proposal conflicts with the with the identified strategic directions in the Strathbogie Planning Scheme to protect and expand agricultural industries requiring extensive buffers.

3. The proposal undermines the rural economic base of the municipality and creates uncertainty for the future of the broiler industry in the municipality.

4. The proposal may create future land use conflicts between potentially conflicting land uses and developments.

5. The proposed dwelling is not required for the continued operation of an existing rural activity or agricultural land use on the land.

6. The proposal seeks approval for a dwelling to support an activity that does not exist on the land.

2 It is proposed to construct a dwelling and sheds on the review site, with the sheds being used to store agricultural machinery which is used as part of a farming contracting business. I was also advised that it is intended to continue grazing and cropping on the land and to breed rabbits.

3 The extent to which the proposal incorporates agricultural uses was disputed by the Council and I will return to a consideration of this matter subsequently in this decision.

4 The dwelling is proposed to be located in the north east corner of the site, 80 metres south of the review site's northern boundary and 40 metres west of the eastern boundary.

5 The review site is located in a rural environment approximately 3.75 kilometres east of the town of Nagambie.

6 The site is located on the eastern side of Ballantynes Road, on the south east corner of McDonalds Road, and is regular in configuration with a frontage to Ballantynes Road of 248 metres and a depth of 603 metres. The site has an area of 17.78 hectares and is generally flat. The land has been cleared with the exception of a small strand of trees in the north west corner. A small dam has been constructed on the land in the south east corner.

7 Planning permits have been issued for four broiler farms on land to the north of the review site on the opposite side of Ballantynes Road. One of the broiler farms is currently operating and I was advised that construction of two others is imminent.

8 The original permit for the four broiler farms was issued in October 2001, and allowed a four lot subdivision with a broiler farm accommodating 120,000 birds on each lot. The permitted broiler farms were all class A Farms as defined in the Victorian Code for Broiler Farms (the Code) which are farms which contain both boundary buffer and separation distances within the property boundary. The permits which have not been acted on have been extended to 2005.

9 Permits have subsequently been issued for Class B farms as defined in the Code on two of the four lots created by the 2001 permit, including the lot immediately to the north of the review site. The permit issued for this farm provides for the accommodation of 260,000 birds. A separation distance of 650 metres is specified in the Code for a farm of this size and type and, in accordance with the Code's provisions, part of this separation distance may extend outside the farm's property boundary provided there are no existing or likely sensitive uses within the separation distance. I was provided with material during the course of the hearing which plotted the separation distance from this proposed farm and showed it extending over a portion of the review site.

10 The Nagambie Waste Water Management Facility (WWMF) abuts the review site to the south. The facility comprises anaerobic lagoons, a facultative lagoon and winter/irrigation storage lagoons, with a design capacity of 3,200 (equivalent treatment population). The WWMF is managed by Goulbourn Valley Water (GVW) and I was advised the GVW has adopted an internal policy imposing a 560 metre "buffer distance" around the WWMF within which sensitive uses such as dwellings are discouraged. The buffer distance encompasses the whole of the review site. I was further advised that while the GVW is not a referral authority under Section 55 of the Planning and Environment Act 1987, the application was nevertheless referred to them. The GVW responded by advising that it did not object to the application subject to the imposition of a condition requiring the owner of the land to enter into an agreement under section 173 of the Planning and Environment Act 1987 requiring, among other things, that ".....neither the operator under the permit nor the owner shall make any complaint in relation to the presence of the Goulbourn Valley Water Wastewater Management Facility nor shall they object, hinder, of (sic) otherwise take action in impede (sic) any expansion of the Wastewater Management Facility.....

11 The review site is zoned Rural under the Strathbogie Planning Scheme. The purpose of the zone is;

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

To provide for the sustainable use of land for Extensive animal husbandry (including dairying and grazing) and Crop raising (including Horticulture and Timber production).

* Protection and creation of an effective rural infrastructure and land resource.

* Improvement of existing agricultural techniques.

* Protection and enhancement of the bio-diversity of the area.

* Value adding to agricultural products at source.

* Promotion of economic development compatible with rural activities.

* Development of new sustainable rural enterprises.

* To ensure that subdivision promotes effective land management practices and infrastructure provision.

12 A permit is not required to use land for the purpose of a range of agricultural uses including crop raising and extensive animal husbandry.

13 A dwelling is a section 1 permit not required use in the zone however conditions applying to the use stipulate that a lot must be at least the area specified in the schedule to the zone, that the dwelling must be the only dwelling on the lot and that the requirements of clause 35.01-2 must be met. Where a condition in section 1 is not met the use is a section 2 use and requires a permit. The review site has an area of 17.78 ha and the schedule to the zone specifies a 100 ha minimum lot size in this locality (Area E) for which no permit is required to use land for a dwelling. A permit is therefore required to use land for the purpose of a dwelling.

14 Clause 35.01-2 imposes requirements relating to access, connection to sewerage, potable water supply and electricity.

15 A permit is required to construct a building or carry out works associated with a section 2 use, pursuant to clause 35.01-3.

16 Decision guidelines under clause 35.01-6 require consideration of a range of matters under the headings of General issues, Rural issues, Environmental issues and Design and siting issues.

18 I was referred to clause 52.31 Broiler Farms on the basis that it is relevant because there are permitted broiler farms on adjacent properties and assessment of these applications took account of there being no sensitive uses within any separation distance. The purpose of clause 52.31 is to "..facilitate the establishment and expansion of broiler farms in a manner that is consistent with orderly and proper planning and the protection of the environment". The clause applies to land used or developed or proposed to be used or developed for a broiler farm and requires that a broiler farm must comply with the Victorian Code for Broiler Farms, September, 2001.

19 I will discuss subsequently the application of the Code to the consideration of this application

20 The purpose of State policy in planning schemes is to inform planning authorities and responsible authorities of those aspects of State level planning policy which they are to take into account and give effect to in planning and administering their respective areas. The State Planning Policy relevant to the consideration of this application is at clause 17.05, the objective of which is;

To ensure that the State's agricultural base is protected from the unplanned loss of productive agricultural land due to permanent changes of land use and to enable protection of productive farmland which is of strategic significance in the local or regional context.

21 Clause 15.04 Air Quality is also relevant to the extent that it establishes general principles with respect to the need that development is not prejudiced and community amenity is not reduced by air emissions by ensuring, wherever possible, that there is suitable separation between potentially amenity reducing and sensitive land uses and developments.

22 The Municipal Strategic Statement (MSS) is a statement of the key strategic planning objectives for the municipality and seeks to further the objectives of planning in Victoria to the extent that the State Planning Policy Framework is applicable to the municipality. The MSS provides the strategic basis for the application of zones, overlays and particular provisions in the planning scheme and decision making by the responsible authority. The Council's MSS places strong emphasis on the role of agriculture as the municipality's economic base and also recognizes the need for new agricultural pursuits to create growth opportunities. The MSS includes a Framework plan which provides an overview of the municipality and its agricultural attributes and which is intended to provide the strategic basis against which development applications in the Shire are to be assessed.

23 The review site is located within an area which was referred to during the hearing as the "Food and Logistics Precinct" and which is described in the Framework Plan as a "Rural area retained at a low development density to accommodate buffer areas for rural industrial activities such as Mangalore Airport, Eatmore Poultry and Campbell's Mushrooms".

24 The designation of this area in the Framework Plan is consistent with the strategic directions and the associated local policies encompassed within the Local Planning Policy Framework of the planning scheme. At Clause 21.04 Vision and Strategic Framework, opportunities for new land uses and economic development and the promotion of the shire's assets are specifically encouraged. The need to manage rural land while accommodating "well planned, located and serviced dwellings in the rural area which are associated with an agricultural activity" is identified as a key land use theme.

25 The rationale underlying the designation in the Framework Plan of the area requiring large buffer distances is found at Clause 21.05-3 Rural Land and Agriculture Investment. This clause states that;

In further support of agricultural investment Council has identified a large tract of rural land east and north east of Nagambie which is in large private holdings and has only a small number of residences. This area has the potential to add to the number of agricultural enterprises which require large buffer distances and separation from residences. Council strategy is to limit the further development of this area for houses and to encourage uses requiring substantial buffers.

26 As a corollary to the above, Clause 21.05-3 also makes specific reference to the importance of controlling the development of housing in the rural zone. The Clause states;

The Council's strategy is to promote and support new housing in the Rural Zone only when it is in association with an agricultural use of the land. Such development should be on lots larger than 20 hectare in area on the basis that lots smaller than this size are rarely able to support agricultural enterprises. Plans for the use and development of land for houses must be where appropriate accompanied by a detailed whole farm plan for the proposed agricultural enterprise. The siting and location of proposed houses and other developments will need to demonstrate that it has comprehensively addressed the physical and environmental constraints of the site including the continuing use of any adjoining or nearby land for agricultural purposes. The proponent should demonstrate that development can satisfy specific requirements including where necessary the provision and upgrading of all weather access to the site at the proponents expense.

27 At Clause 21.05-5 Business, Tourism and Industry Development the opportunity to provide for an area for agricultural industries which require a buffer is discussed in the following terms;

Rural locations for industry will be protected by overlays where noise or smell is likely to be produced. The minimum subdivision size has been set at 100ha in the area east of Nagambie where industries such as Chiquita Mushrooms and Eatmore Poultry are located to ensure that development densities remain low. The shire supports and encourages further agricultural investment and development where it makes more productive use of existing resources and contributes to the long term management of those resources and provides for further local employment opportunities.

28 The broad strategic directions of the MSS are supported by a series of local policies, of which two are especially relevant to the consideration of this application.

29 Clause 22.12 Development in Rural Areas Requiring Buffer Distances applies to applications requiring planning permits for the use or development of land in the Rural Zone where buffer distance separations are required to protect the amenity of adjoining or nearby properties and land uses.

30 Under the heading Policy basis it is stated that;

A range of agricultural industries and developments require buffer distances to protect the amenity of adjoining or nearby properties and land uses. Council supports such uses particularly where they are associated with the generation of local employment, are ecologically sustainable and they provide for further value adding industries.

A large area of the northern sector of the Shire particularly to the east and north east of Nagambie is particularly suited to enterprises requiring buffer distances. The area is accessible to employment sources, is well served by access to arterial roads and contains large property holdings and a limited number of residences. The area is able to support uses requiring buffer distances because it can meet the requirements of extensive open areas with no dwellings. It is Council's policy to promote and support the development of such uses in this area which is shown on the Shire's Strategic Framework Plan. The development of this area for such uses will be dependent upon Council implementing a strategy to prevent the fragmentation of this area by subdivision and dwellings. Council will not support uses requiring buffer distances in other parts of the Shire, unless they can meet all buffer distances requirements and they do not compromise other agricultural uses and development opportunities, particularly the use of high quality agricultural land.

To provide for and encourage the location of land uses requiring buffer distances in a designated area to the east and north east of Nagambie.

To limit the use, subdivision and development of land in this area such that it would compromise the opportunities available for siting land uses requiring buffers.

To limit the use of other areas of the Shire for land use requiring buffer distances where they cannot meet buffer distance requirements and where it will compromise the use of high quality agricultural land.

* The use and development of land for uses requiring buffer separation distances will be encouraged to locate in Council's preferred development area as indicated on the Structure Plan.

* The subdivision of land or the realignment of title boundaries, dwelling lots, or the erection of houses on land within Council's preferred development area for uses requiring buffer distances will not be supported.

* Council will support the location of uses requiring buffer distances outside of the preferred development area where the following criteria can be met:

- The location of the use can meet buffer distance requirements.

- The use is not located on productive agricultural land.

- The use will not compromise the use of adjoining or nearby land for agricultural purposes.

33 Clause 22.08 Houses in the Rural Zone applies to the use and development of land for dwellings in the Rural zone that require a permit. The policy basis refers to the importance of maintaining agricultural production and minimising the use of productive agricultural land for non productive uses and development. Concern is also expressed about the extension of infrastructure to the large number of small lots in the municipality. The objectives of the policy are;

To ensure that the use of existing crown lots will not result in the loss of productive agricultural land or land use conflict with adjoining and nearby agricultural uses.

To provide for the construction of houses on rural lots when the house is associated with and required to support a commercial agricultural enterprise.

To require the upgrading of infrastructure services including access roads as a pre-requisite for the development of houses on rural lots at the developers expense.

* Permits for houses on lots on a plan of subdivision created prior to the introduction of a planning scheme only be supported when:

- The land is of low agricultural value, or where there will not be a loss of productive agricultural land.

- The application is accompanied by a report showing how the proposal is consistent with the purposes and provisions of the zone.

- The application can demonstrate that the proposal is either directly related to the maintenance and development of agriculture or does not compromise continued agricultural production.

- The house can be accessed by services including an all weather access road constructed to the satisfaction of the responsible authority with the cost of construction borne by the applicant.

* The location, siting and proposed works will not compromise or limit the continued use of adjoining and nearby land for agricultural purposes.

* Proposals for houses be on lots of at least 20 hectares.

35 The State and Local Planning Policy Frameworks provide what I regard as a very clear strategic direction for the development of the municipality and for this particular part of the municipality. The area has been designated as the preferred location for uses (such as broiler farms) which require buffer and separation distances and it is the Council's policy to discourage these uses from locating elsewhere in the municipality. Similarly, the policy framework seeks to ensure that these uses are capable of locating and operating in the designated precinct by minimising opportunities for the introduction of sensitive uses such as dwellings which contribute to the creation of land use conflicts and which potentially compromise the achievement of the outcomes intended for the precinct. The precinct has been selected to accommodate uses requiring buffer and separation distances on the basis that it contains large property holdings and limited numbers of dwellings. The clear intent of the policy is to ensure that this subdivision and land use pattern is maintained. This is to be achieved by imposing a 100 ha minimum lot size for which no permit is required to use land for a dwelling and, as a matter of policy, to require a 20 ha minimum where the discretion is available to grant a permit, provided the dwelling is directly related to the maintenance and development of agriculture.

36 It is in the context of this policy framework and the intended outcomes it seeks to achieve, that consideration of this application must proceed.

37 The parties at the hearing of the application for review relied on both written and oral submissions and a number of photographs, plans and other documents were tendered to the Tribunal. This material has been retained on the Tribunal's file.

38 The Council, the Victorian Farmers Federation and the objector (the intended operator of the broiler farm directly to the north of the review site) all placed considerable emphasis on the proposal's failure to respond to the applicable policy framework. In particular it was submitted that the proposal constitutes the introduction of a sensitive use onto a site which has a direct abuttal with uses to both the north and south which require substantial buffer separation distances. It was submitted that the uses to the north (the broiler farms) have chosen to locate in this locality primarily as a consequence of the Council's planning scheme provisions which seek to encourage these uses in this locality and to protect them from the encroachment of sensitive uses which may prejudice the ability of these uses to operate effectively and to potentially grow in response to market factors.

39 In addition to the above, Ms Holland and Mr Laffey submitted that the proposal conflicts with the Council's policy Houses in the Rural Zone at Clause 22.08 because not only is the size of the review site substantially less than the 100 ha minimum for an as of right dwelling, but also less than the 20 ha minimum which the Policy specifies as being required to accommodate a dwelling associated with an agricultural enterprise. The Council's concern on this matter was partly related to what it regarded as the applicant's failure to adequately demonstrate that an agricultural enterprise is or is intended to be conducted on the land.

40 The Council and the respondents further submitted that in addition to the inappropriateness of the site in terms of its proximity to the proposed broiler farms to the north, the use and development of the site is further constrained by its proximity to the WWMF to the south. In this respect it was submitted that GVW's proposed Section 173 agreement which would in effect allow a dwelling to be located within the WWMF buffer in return for a commitment from the owner of the land and the residents of that dwelling to not object to or complain about the WWMF, is a poor substitute for effective land use planning and should not be entertained. Ms Hoffman advised that the Council had received its own legal advice with respect to the validity of the permit condition and the agreement sought by the GVW and that it would not be prepared to be a party to such an agreement.

41 Mr Tranter raised a number of matters in support of his submission that "....if there is any logic, common sense or compassion in the planning application/Appeal process .......a permit will issue as a result of this Appeal process." In broad terms it was Mr Tranter's submission that the Council had inconsistently applied the planning scheme rules to the consideration of this application and referred me to a number of permits which the Council had issued for dwellings on lots in the Rural zone of similar or smaller size than the review site. Mr Tranter further submitted that the applicant has demonstrated to the extent that he ought to be required to do, that the dwelling is associated with an agricultural enterprise and that in any event, the review site has a long history of agricultural use and that a permit is not required to continue to use the land in that manner. In Mr Tranter's submission it is not necessary for the applicant to demonstrate that he intends to use the land for a purpose for which he does not need a permit.

42 It was Mr Tranter's submission that the Council's (and the objector and the VFF's) reliance on the separation distance requirements of the Broiler Code have been inappropriately applied, and raised concerns with respect to the application of the separation distance requirements in relation to the permit for the broiler farm immediately to the north of the review site. As a consequence Mr Tranter submitted that the development potential of the review site may have been compromised as a consequence of the granting of that permit. With respect to the review site's proximity to the WWMF, Mr Tranter advised that the applicant is content to abide by GVW's proposed conditions and that this resolves any concerns I may have about the proposed dwelling's location adjacent to that facility.

43 I have concluded that the Council's decision in this matter should be affirmed and no permit should issue. I have reached this conclusion principally on the basis that the proposal to construct a dwelling on this lot does not produce an acceptable outcome in terms of the State and Local Planning Policy Frameworks and in particular those aspects of the policy framework which designate this locality as being the preferred location for uses which require buffer and separation distances and, as a necessary corollary to this outcome, within which sensitive uses such as dwellings ought to be discouraged.

44 I have outlined in some detail above the applicable policy framework and I reiterate my earlier observation that I think the framework provides a very clear strategic direction for the development of the municipality and for this particular part of the municipality. This strategic direction has been prepared by the Council and adopted by it as a key element of its overall local policy framework and it has been incorporated into its planning scheme as it is required to do in accordance with the provisions of the Planning and Environment Act 1987. On the basis of the submissions made to me by the Council, the VFF and by Mr Laffey on behalf of the respondent objector, the Council's policy framework is successfully achieving the outcomes it is intended to, i.e. attracting suitable uses (in this instance broiler farms) into this locality. Mr Laffey advised me that his client had specifically chosen to locate their proposed broiler farm in this locality because of the protection offered to that use by the planning scheme. Mr Laffey said;

Mr and Mrs Femino have been in the poultry industry for some time currently operate a broiler farm at Tyabb on the Mornington Peninsula. They bought the Ballantynes Road property because they could see that the industry was undergoing change and that their Tyabb operation would increasingly come under pressure due to encroachment from urban and rural residential uses.

They selected this property because it appeared that Council was actively encouraging this type of use in this location. They rely on the provisions of the planning scheme in this regard. They also believed that Council's policies, as included in the planning scheme, would offer protection from encroachment of sensitive uses. It was a considerable investment not undertaken lightly.

45 The ongoing success of the policy framework in attracting this type of use into this locality is however dependant upon consistent decision making by the Council (and on review this Tribunal) to ensure that uses which do require substantial buffer and separation distances are protected from the encroachment of sensitive uses which, if not controlled, do have the potential to prejudice the long term viability and growth potential of those uses. There are many examples throughout metropolitan Melbourne and rural Victoria of long standing uses which require buffer distances which have witnessed their buffers gradually eroded as a consequence of poor decision making or lack of planning within those buffer distances.

46 As I have indicated previously, the State Planning Policy Framework establishes the importance as a general principle of land use planning the need to create and sustain suitable buffer distances between potentially amenity reducing and sensitive land uses.

47 This principle also finds expression in the Victorian Code for Broiler Farms upon which the Council, the VFF and Mr Laffey placed considerable weight in terms of supporting their submissions that the encroachment of sensitive uses into the separation distances around broiler farms ought to be strongly resisted. On the basis of the submissions made to me there appears to be an expectation that the provisions of the Code can be utilised to prevent sensitive uses from locating on land adjoining a broiler farm. Having regard to the reliance which was placed on the Code, I think it is appropriate at this point that I make some observations about the role of the Code in the consideration of applications of the type currently before me.

48 While I acknowledge that under the heading "Strategic Planning Considerations for Local Councils" the Code does present a discussion about and indeed recommendations for decision making about applications for sensitive uses within separation distances to a broiler farm, the scope of the Code is determined by reference to clause 52.31 of the planning scheme. The purpose of that clause is;

To facilitate the establishment and expansion of broiler farms in a manner that is consistent with orderly and proper planning and the protection of the environment.

49 Under the heading Scope it is stated that the "...clause applies to land used or developed or proposed to be used or developed for a broiler farm". Under the heading Requirement it is stated that "A broiler farm must comply with the Victorian Code for Broiler Farms, September 2001".

50 The application which is before me does not concern land used or developed or proposed to be used or developed for a broiler farm. It is concerned with an application for a dwelling on land adjacent to land on which a permit has been granted for a broiler farm and clause 52.31 does not therefore apply to the consideration of this application.

51 I can appreciate why Mr Laffey's clients and the VFF would be concerned that the Code does not apply to the consideration of applications for sensitive uses near or adjacent to land used or developed or proposed to be used or developed for a broiler farm, because it raises in their minds doubts about how broiler farms established under the provisions of the Code are to be protected from the encroachment of sensitive uses into the broiler farm's separation distances.

52 I think this concern is unfounded. The Code deals with this specific issue by establishing the parameters for the location of new broiler farms and by requiring a new broiler farm to be located such that no sensitive uses are located within the separation distance specified for the size and class of farm which is proposed. In circumstances where neighbouring land is vacant at the time of the consideration of the application, Element 1 of the Code requires consideration of the potential of the neighbouring land to be developed for a sensitive use. Element 1 states;

For the purpose of assessing whether an area affected by a separation distance may contain a sensitive land use in the future, the responsible authority will have regard to the potential for the development of a dwelling on the adjoining property "as of right" (that is, without a permit) but not for the potential development of additional caretaker dwellings or second dwellings which are subject to planning permits.

Where a site adjoining a proposed broiler farm is currently vacant, it should be assumed that an "as of right" dwelling may be located centrally on the property (that is, the available separation distance will be calculated to the centre line of adjoining allotments if that lot is currently vacant)

53 The effect of Element 1 of the Code is to enable, at least in theory, an "as of right" dwelling to be located on a vacant lot adjoining land used or developed or proposed to be used or developed for a broiler farm, on at least that part of that lot which is outside the separation distance. The Code cannot be relied upon to prohibit a dwelling from locating on that part of the adjoining lot which is within the separation distance because a permit is not required for that dwelling. The Code seeks to do no more than provide an opportunity for the owner of the adjoining vacant land to make their own decision about the ultimate location of a dwelling on the adjoining land.

54 In circumstances where a permit is required to use or develop land adjoining a broiler farm for a dwelling (as is the case in this Application), consideration of the merits of allowing the land to be used for a dwelling in the first instance can be considered as part of the planning permit application process. Similarly consideration can be given to the siting of the dwelling on the land. In undertaking the assessment of the permit application, consideration must be given to the policy framework, the zone and overlay provisions (if any) and the Particular Provisions of the planning scheme in the normal manner. The existence of a broiler farm (or a permit for a broiler farm) on adjoining land will be a relevant consideration as will the extent to which the broiler farm's separation distance extends into the adjoining lot, but the Broiler Code does not preclude land adjoining a broiler farm from being used for a dwelling.

55 In the circumstances of this case however, I do not need to rely on the provisions of the Broiler Code to form a view that the use and development of the review site for a dwelling is not an outcome supported by the provisions of the planning scheme. As I have indicated above I am satisfied that there is a wealth of policy in the planning scheme which leads me to that conclusion.

56 It was Mr Tranter's submission that the proposal is consistent with the planning scheme primarily because the dwelling is associated with an agricultural enterprise carried out on the land. He advised me that Mr Boyer conducts a rural contracting business and that he intends to breed rabbits on the site. It is clear that the Council was and remains skeptical about the extent to which these uses, or at least the level of detail provided in support of them, are sufficient to satisfy it that the provisions of the local policy at clause 22.08 have been satisfied.

57 I am inclined to agree with Mr Tranter that the extent to which the dwelling is associated with and required to support a commercial agricultural enterprise is a mute point. While the policy at clause 22.08 calls for the applicant to demonstrate that the proposal is either directly related to the maintenance and development of agriculture or does not compromise continued agricultural production, the fact that many rural uses are permitted "as of right" on the land, does make it difficult for the Council to sustain a submission that the dwelling is not associated with a commercial agricultural enterprise. Similarly, I am unaware of any powers the Council may have to compel a land owner to conduct a use for which a permit is not required.

58 In any event I do not regard this aspect of the local policy as being particularly influential to my findings. Of much greater significance to my conclusion about the appropriateness of the proposed use and development in achieving an acceptable outcome in terms of the policy framework is the size of the lot. The policy framework identifies the need for large lots in this locality and this policy is reinforced by the Schedule to the zone which imposes a 100 ha minimum for which no permit is required to use land for a dwelling. The local policy at clause 22.08 recognises that circumstances may exist in which a permit for a dwelling may be justified on a lot less than 100 ha, and to assist in exercising the discretion to grant a permit on a lot smaller than 100 ha, the policy specifies a minimum lot size of 20 ha. The 20 ha minimum does appear to be somewhat arbitrary and is based on an assumption that this is the minimum size lot upon which an agricultural enterprise could be commercially viable.

59 The review site is 17.78 ha but I do not think that the issues in this case the revolve around the difference between a lot of 17.78 ha and a lot of 20 ha. The issue is whether a permit ought to be granted for a dwelling on a lot of 17.78 ha in a locality in which the schedule to the zone specifies a 100 ha minimum for an as right dwelling. Having regard to the outcomes which the policy framework seek to achieve for this locality, and having regard to the proximity of the site to land upon which permits have been granted for broiler farms, I have not been persuaded that this is a site where the discretion to grant a permit for a dwelling should be exercised.

60 It is appropriate that I also make some observations about the review site's proximity to the WWMF and the GVW's approach to imposing and protecting a buffer around it.

61 The first point is that the GVW's "policy" of imposing a 560 metre buffer has no status under the planning scheme and I have given no weight to it. I was provided with a document which specifies appropriate buffers which ought to be imposed around GVW 's various waste water facilities and I note that the document also contains a number of recommendations concerning the application of the buffers. These recommendations refer to the importance of achieving planning scheme recognition for the policy, but the GVW has clearly not acted on those recommendations. It is strongly suggested that they do so.

62 With respect to GVW's reliance on agreements made under Section 173 of the Planning and Environment Act 1987 to achieve commitments from applicants for developments on land near the WWMF that they will not complain about or object to the WWMF, I regard this as a very poor substitute for the proper planning for the protection of the WWMF and for decision making about development proposals which may impact on them.

63 Finally, Mr Tranter made submissions to me concerning the validity of the permits which have been issued for the broiler farms to the north of the review site. These matters related to the granting of the second permit for the class B broiler farm after what he termed the "activation" of the original permit for the subdivision, use and development of the land, and also to the plotting of the separation distance for that farm. Mr Tranter has not brought proceedings before the Tribunal with respect to those matters and they are not matters about which I am able or required to make findings. In the event that he wishes to pursue those matters, proceedings separate to this Application will need to be initiated.

64 The decision of the responsible authority is affirmed and no permit shall issue.