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[2022] VCAT 47
General information, not legal advice.
Victorian Civil and Administrative Tribunal
2022-01-14
Original judgment source is linked above.
Application under section 77 of the Planning and Environment Act 1987; Review the refusal to grant a permit; Bass Coast Planning Scheme; Farming Zone; Two lot subdivision; Subdivision to create a lot for an existing dwelling; Agricultural land use.
BRB Law on behalf of the Estate of the late Ian Leslie Montgomery
BRB Law on behalf of the Estate of the late Ian Leslie Montgomery v Bass Coast SC [2022] VCAT 47
1 In application P1609/2020 the decision of the responsible authority is affirmed.
2 In planning permit application 190235 no permit is granted.
It is proposed to subdivide the land into two lots. The subdivision will create 'lot 1' of 1.226 hectares (ha) and 'lot 2' of 60.75ha.
Application under section 77 of the Planning and Environment Act 1987 - to review the refusal to grant a permit.
Clause 35.07-3: To subdivide land in the Farming Zone.
Clauses 02, 11, 12, 13, 14, 16, 35.07, 65, 71 and 72.
The review site is located on the southern side of the Bass Highway, on the eastern corner of its intersection with Ruttle Lane. The southern boundary of the site adjoins Albert Ruttle Drive.
The site is irregular in shape, with an area of 61.9 hectares.
1 BRB Law, on behalf of the Estate of the late Ian Leslie Montgomery (the applicant), is seeking a planning permit to subdivide the land known as Lot 1 TP512047, Bass Highway, Inverloch (the review site) into two lots.
2 The review site is located on the southern side of the Bass Highway, on the eastern corner of Ruttle Lane. The review site is immediately to the west of the settlement area of the Inverloch township.
3 The review site is irregular in shape, and has an area of 61.9ha.
4 The site is occupied by a dwelling and associated outbuildings, with the remainder of the land used for agriculture grazing animals. The existing dwelling sits approximately half way along and adjacent to the western side boundary, with vehicle access from Ruttle Lane. There are several water bodies (dams) but little vegetation on the site. These features are evident in the aerial photograph at Figure 1.
5 The proposed subdivision is to create two lots. Proposed Lot 1 is 1.226ha in area and will contain the existing dwelling and associated outbuildings. Proposed Lot 2 is 60.75ha in area and will comprise the remainder of the land currently used for grazing animals. The proposed subdivision layout and site context is shown in Figure 1.
6 The Bass Coast Shire Council (the Council) has refused to grant a planning permit for the proposed subdivision.
7 The Council's grounds of refusal relate to the proposal:
8 The applicant has brought this application under section 77 of the Planning and Environment Act 1987 to review the Council's refusal to grant a permit.
9 The applicant's grounds for review are that the proposal is consistent with the State and local planning policy framework, State agricultural policies, and the Bass Coast Shire's landscape and design policies.
10 The Tribunal must determine whether a permit should be granted and, if so, what conditions should be applied. In doing so I must consider whether the proposal will produce 'acceptable outcomes', [3] rather than optimal or preferable outcomes, in relation to the relevant policies and provisions of the planning scheme.
11 Based on the submissions and relevant policies and provisions of the planning scheme, the key issue to be determined relates to whether the proposed subdivision is consistent with the Farming Zone purpose and supported by the relevant planning policies and provisions.
12 Having considered the submissions and statements of grounds, and relevant policies and provisions of the planning scheme, I have decided to affirm the Council's decision to refuse to grant a permit. My reasons follow.
13 On 8 July 2021, prior to the first hearing day on 14 July 2021, Amendment C160basc to the planning scheme was gazetted. The amendment 'reformatted' the planning policy framework (the PPF) of the planning scheme. This included replacing the Municipal Strategic Statement (the MSS) at clause 21 of the scheme with a Municipal Planning Strategy, and local policies at clause 22 within the PPF.
14 The written submissions of both parties filed with the Tribunal prior to the first hearing day had been prepared based on the 'old' PPF and MSS. After hearing part of the Council's submissions on the first hearing day, the hearing was adjourned to enable the parties to provide further information and written submissions regarding the PPF as amended by Amendment C160basc prior to the second hearing day on 23 August 2021. The second hearing day provided the parties with the opportunity to address these matters in oral submissions.
15 I have had regard to the information and submissions of the parties in relation to Amendment C160basc. My decision is based on the PPF as amended by Amendment C160basc.
16 The Council has advised that the changes to the planning scheme as a result of Amendment C160basc do not have any implications for its position or grounds of refusal in this application.
17 The review site is located within the Farming Zone.
To implement the Municipal Planning Strategy and the Planning Policy Framework.
To encourage the retention of productive agricultural land.
To ensure that non-agricultural uses, including dwellings, do not adversely affect the use of land for agriculture.
To encourage the retention of employment and population to support rural communities.
To encourage use and development of land based on comprehensive and sustainable land management practices and infrastructure provision.
To provide for the use and development of land for the specific purposes identified in a schedule to this zone.
19 A planning permit is required for the proposal to subdivide the land, and each lot must be at least 80 hectares in area.[4] Under the zone provisions a permit may be granted to create smaller lots in specified circumstances. [5] As applicable to the facts and circumstances of this application, one of the circumstances is:
20 In the Farming Zone, a planning permit is not required to use land for a dwelling if it is the only dwelling on the lot and the lot is a minimum of 40ha in area.[7] This means that if the land is subdivided as proposed, a planning permit would not be required to use the proposed lot 2 for a dwelling.
21 The decision guidelines of the planning scheme must be considered as appropriate.[8] The decision guidelines relate to, as relevant, 'general issues', 'agricultural issues and the impacts from non-agricultural uses', and 'dwelling issues'.
22 Decision guidelines of particular relevance to this proposal include:
Agricultural issues and the impacts from non-agricultural uses
23 Although no overlays apply to the review site, it is within a designated Bushfire Prone Area.
24 The surrounding zoning context is shown in Figure 2. In relation to the zoning context I note the following:
25 Planning policies relevant to the key issues in dispute include:
26 Other relevant considerations include the decision guidelines at clause 65. These comprise the decision guidelines for approval of an application or plan at clause 65.01 and those for an application to subdivide land at clause 65.02. Clause 65 provides that:
Because a permit can be granted does not imply that a permit should or will be granted. The responsible authority must decide whether the proposal will produce acceptable outcomes in terms of the decision guidelines of this clause.
27 The decision guidelines at clause 65.01 require me to consider, among other things and as relevant, the Municipal Planning Strategy and the PPF, the purpose of the zone or other provision, any matter required to be considered in the zone or other provision, and the orderly planning of the area.
28 The decision guidelines relating to applications to subdivide land at clause 65.02 require me to consider, among other things, the suitability of the land for subdivision, the existing use and possible future development of the land and nearby land, the availability of subdivided land in the locality, and the need for the creation of further lots.
29 Also of relevance is clause 71.02-3, which sets out the principles of integrated decision-making in relation to the operation of the planning policy framework. This includes the following:
Planning and responsible authorities should endeavour to integrate the range of planning policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit and sustainable development for the benefit of present and future generations. However, in bushfire affected areas, planning and responsible authorities must prioritise the protection of human life over all other policy considerations.
Is the proposed subdivision consistent with the Farming Zone purpose and supported by the relevant planning policies and provisions?
30 The applicant's submissions include, in summary:
31 The provisions at clause 35.07-3 of the Farming Zone provide for the subdivision of the land that will create a lot for the existing dwelling.
32 However, as set out in the decision guidelines at clause 65, because a permit can be granted does not imply that a permit should or will be granted. Rather, I must decide whether the proposal will produce acceptable outcomes in terms of the decision guidelines of that clause.
33 As a starting point, I turn to the purpose and decision guidelines of the Farming Zone at clause 35.07.
34 While the provisions of the Farming Zone provide for the excision of the dwelling, this does not persuade me that that site is necessarily 'suitable' for such development. The site's suitability for subdivision must be determined having regard to all of the relevant policies and provisions of the scheme.
35 I have considered the extent to which the proposal achieves the purpose of the Farming Zone, having regard to the decision guidelines.
36 Having regard to the zone purpose 'To provide for the use of land for agriculture', the proposed subdivision does not directly serve this purpose. The land is currently used for agricultural purposes, and the subdivision is not necessary to provide for its continued use for this purpose.
37 As to whether the proposal 'retains productive agricultural land', I am satisfied that proposed lot 2 retains land that is suitable for agricultural use, can be productive agricultural land, and has the capacity to sustain agricultural use of this land. The Farm Management Plan report[11] that forms part of the permit application indicates that the property currently supports an agricultural use, and that the resultant lot 2 will be suitable for an agricultural enterprise. The proposal will excise only a relatively small area of the overall site to create lot 1 that will contain the existing dwelling. Over 60ha of the site that is currently used for and could continue to be used for agricultural purposes will be retained in lot 2. Given the size, shape, and existing buildings and works that occupy the land of proposed lot 1, any agricultural use of that lot is likely to be incidental and ancillary to the dwelling use. Lot 1 is in effect supports a 'lifestyle' outcome that does not support and enhance the agricultural production of either of the proposed lots.
38 Having regard to the zone purpose 'To ensure that non-agricultural uses, including dwellings, do not adversely affect the use of land for agriculture', I note that this proposal does not seek approval for a new dwelling use it. However, it raises an issue about the potential for the excision of the existing dwelling from that part of the land used for agricultural purposes to adversely affect that use of that land.
39 The existing dwelling's close proximity to its boundary with proposed lot 2 has the potential to result in land use conflicts between any agricultural use of lot 2 and the dwelling use of lot 1. Although the current use of the land for grazing animals may be innocuous, there are a range of agricultural and other uses that could occur on the land without the need for a planning permit that could give rise to land use conflicts with the dwelling use.
40 Even though the agricultural use of the land has existed in proximity to the dwelling since its existence, this has been in the context of the agricultural use and dwelling use forming part of the one land parcel. I am not persuaded that the excision of that dwelling from the agricultural land will not give rise to land use conflicts. The likely outcome of the proposal is that the two lots will ultimately be held in separate ownerships or occupancies, otherwise there would be no reason to subdivide the land.
41 The proposed subdivision is related to giving effect to the terms of the legal will and management of the deceased estate of the owner. I have been informed that the current resident of the existing dwelling is to remain living in the dwelling, and that their son is to have first right of refusal on a lease to run the farm on proposed lot 2. Even if this arrangement does eventuate, there is no certainty it will be maintained in the longer term. Irrespective, the personal circumstances of the individuals involved in the current and future ownership and occupancy of this land are not relevant considerations under the planning scheme.[12]
42 The proposed living and farm management arrangements do not persuade me that excising the dwelling into lot 1 will not give rise to land use conflicts in relation to the use of lot 2 for agriculture. The subdivision has to the potential to limit the operation and expansion of the agricultural use of proposed lot 2 due to the potential land use conflicts with the existing dwelling on proposed lot 1.
43 I note the site is already in proximity to both urban residential land in the General Residential Zone to the east and rural lifestyle land in the Rural Living Zone to the west. These no doubt have the potential to give rise to land use conflicts with the agricultural use of the review site. However, this does not persuade me that it justifies this proposal. Rather this proposal would compound the potential land use conflicts for the agricultural use of lot 2.
44 As to the zone purpose that seeks 'To encourage the retention of employment and population to support rural communities', the subdivision would not change the status quo of the contribution that the current agricultural use and existing dwelling makes to employment and population.
45 I am not satisfied that the subdivision is consistent with the zone purpose 'To encourage use and development of land based on comprehensive and sustainable land management practices and infrastructure provision'. The Farm Management Plan report does not persuade me that the subdivision to excise the dwelling from that part of the site that can continue to be used for agricultural purposes relates to the sustainable management of the land or will support and enhance its agricultural production. In this regard I note that the Farm Management Plan report indicates that:
...continuation of suitable agricultural enterprises into the future may rely on a dwelling being present for safety, welfare and appropriate management of animals.[13]
The excision of the dwelling into a separate lot to that part of the site used for agriculture is contrary to this.
46 Even though the Farm Management Plan report sets out ways in which the management and productivity of the agricultural use of the land can be improved, such improvements could be undertaken on the site without the subdivision. Although the permit for the subdivision could include a requirement for the Farm Management Plan to be implemented, the subdivision of the land is not necessary to implement the Farm Management Plan.
47 For these reasons I am not satisfied that the proposal is consistent with the purpose and provisions of the Farming Zone.
Municipal Planning Strategy & Planning Policy Framework
48 I now turn to the provisions of the Municipal Planning Strategy & Planning Policy Framework, which are matters to be considered under the decision guidelines at clauses 35.07-6 and 65.01, and provide guidance for decision making.
49 The proposal is inconsistent the with 'settlement' strategic direction for Inverloch at clause 02.03-1. While this strategic direction anticipates the potential for some growth beyond urban zoned land, this is on the proviso that it is within defined settlement boundaries. The review site is outside the Inverloch settlement boundary as depicted in the Inverloch Strategic Framework Plan at clause 11.01-1L-08. As such, the subdivision would contribute to growth outside the settlement boundary by creating a lot (lot 2) that could accommodate a dwelling.
50 The proposal is inconsistent with the strategic direction at clause 02.03-4 that seeks to 'limit the fragmentation of rural land through the creation of small rural lots within the Farming Zone...'. In this regard I note that the area of the review site is already less than the 80 hectare minimum subdivision size required under the Farming Zone. The proposal will fragment the land into two lots, for no purpose other than to facilitate an outcome for personal circumstances.
51 The proposal is inconsistent with the strategic directions for housing at clause 02.03-6 that seeks to 'support the provision of rural living and low density residential development in areas already zoned for this purpose'. I consider that proposed lot 1 is akin to a rural living property. In fact, the proposed lot 1 appears to be smaller than the properties in the Rural Living Zone to the west, and is less than the 2ha minimum lot size required in that zone. The site is not zoned for rural living or low density residential development, and is distinguished from the adjacent Rural Living Zone in the Inverloch Strategic Framework Plan at clause 11.01-1L-08.
52 I find the proposal is inconsistent with the local planning policy 'Dwelling and subdivisions in rural areas' at clause 14.01-1L. Having regard to the supporting strategies I note the following:
53 On any view there is little policy support for this proposal.
54 The proposed subdivision is inconsistent with the Farming Zone purpose and not supported by the Municipal Planning Strategy and PPF. My findings on the specific matters outlined above also address the range of relevant matters in the decision guidelines at clause 65.
55 Having regard to the principles of integrated decision making, there is no basis for me to find that the subdivision of land provides a net community benefit. The circumstances relating to the proposed subdivision do not warrant greater weight being attributed to the proposal to subdivide the land over the policies that seek to implement the Strategic Framework Plan and settlement strategies for Inverloch, and protect agricultural land and agricultural uses.
56 For the reasons I have given, I find that the proposal will not result in an acceptable outcome and is inconsistent with the orderly planning for the area. I conclude that the decision of the responsible authority is affirmed and that no permit is granted.
[1] The submissions of the parties, any supporting exhibits given at the hearing and the statements of grounds filed have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.
[2] Source: Design Response plan prepared by Beveridge Williams, plan reference 1900865, Version 1, dated 18/07/2019.
[3] Having regard to the decision guidelines at clause 65 of the planning scheme.
[4] Clause 35.07-3 and the schedule to the Farming Zone.
[10] Source: Planning Property Report, Department of Environment, Land, Water and Planning. The boundary of the review site is identified by red dots.
[11] Prepared by Matt Harms B Ag. Sc. (Honours), Principal and Senior Consultant, ONFARM Consulting.
[12] For example, see Jacques v East Gippsland SC [2007] VCAT 1466, at [31].
[13] Farm Management Plan report, prepared by Matt Harms, ONFARM Consulting, at page 7.
[14] The author of the Farm Management Plan report was not called to give evidence as an expert witness at the hearing.
BRB Law on behalf of the Estate of the late Ian Leslie Montgomery
Bass Coast SC [2022] VCAT 47