The order of the Tribunal is that the decision of the Responsible Authority is set aside. The Tribunal directs that a permit must not be granted.

Mr Wren called Mr Andrew Biaci, Town Planner, as a witness in support of his submissions.

1 This is an application to review the decision of the Responsible Authority to grant a permit for a 36 hole golf course and associated facilities, including an 11 room residential hotel at Yering in the Yarra Valley. Mr Bristow seeks to review the decision of the Responsible Authority submitting:

I believe the Shire of Yarra Ranges has incorrectly interpreted the requirements for granting of a permit for a golf course under rural areas local planning policies/Yarra Ranges Planning Scheme, clauses 22.03 and 22.06 requiring a significant connection between recreational facilities and accommodation for tourists, and agricultural use.

2 The parties and the witness 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. The Tribunal inspected the subject site and its locality after the conclusion of the hearing.

3 The subject land is a farming property known as "Coowerp". The principal dwelling on the land, is a two storey brick building and is a heritage place under the provisions of the planning scheme. The land is used primarily for grazing, a large part of the site is relatively low lying, and forms part of the flood plain of the Yarra River.

4 The subject land is a regular allotment with an area of approximately 132 hectares. The west boundary of the land adjoins Victoria Road, while the south boundary of the land adjoins McIntyre Lane. To the north of the subject land there is the Melbourne Gun Club, and the Lilydale Airport adjoins the land to the east. The area is generally rural in character, with some rural residential use located to the south.

5 The proposal is to relocate the existing Croydon Golf Club from its current premises in Dorset Road Croydon to the subject land. The facility will include a 36 hole golf course, associated club rooms and facilities, and an 11 room residential hotel, providing accommodation for members and tourists. The residential accommodation is to be based on the existing heritage dwelling, and new outbuildings.

6 It is our opinion that there is a single significant issue to be resolved in this application. Is the proposed use of the land appropriate, having regard to its zone and the planning policy framework intended to guide the use and development of land within the zone.

7 Mr Bristow also argued that in his view the proposed golf course was prohibited, a position which is arguable because of the operation of clause 53, a clause peculiar to the Yarra Ranges Planning Scheme, and which sets out particular provisions in relation to the Upper Yarra Valley and Dandenong Ranges region. Clause 5.0 of the Schedule to clause 53, provides in relation to the current proposal:

5.0 Use of land in a Rural Zone, Environmental Rural Zone or Rural Living Zone

In addition to any other requirement of this planning scheme, in a Rural Zone, an Environmental Rural Zone or a Rural Living Zone, the following uses must meet the requirements specified for the use:

* Retail premises (other than a restaurant), outdoor recreation facility, minor sports and recreation facility and place of assembly. The use must be associated with an agricultural activity being carried out on the land or provide recreation or tourist facilities in association with tourist accommodation.

8 We are of the opinion that the proposed use of the land for a golf course is an example of recreation or tourist facilities in association with tourist accommodation, because of the associated proposal to provide the residential accommodation. In this way the requirement set out in the Schedule to clause 53 is satisfied, and the use of the land for outdoor recreation, is not prohibited by the clause.

9 Mr Bristow submitted that this was a case of the tail wagging the dog. It is not tourist accommodation with an associated recreational activity, rather it is a recreational activity with limited associated tourism accommodation. We think it unlikely that this is relevant to the interpretation of clause 53, it is difficult to conclude that while an association is required between recreation and tourist accommodation, the tourist accommodation must be the primary use. However, this issue becomes relevant to the primary issue referred to above, that is the appropriateness of the use of the land in the zone having regard to the planning policy framework. We now turn to this issue.

10 The Tribunal in TEAC Australia v Port Phillip City Council[1] commented that when considering a proposal in relation the policy framework set out in the planning scheme the preferred approach is to develop an overall picture of the policy framework and it is not necessarily correct or helpful to adopt a clause by clause analysis of the policy framework. In forming this overall picture the zone purposes, and the state planning policy framework, in particular clause 17.05 Agriculture, are as relevant as the clauses most debated in this application, that is clause 22.03 Rural Areas, and clause 22.06 Tourism. In trying to develop this overall picture, we have found the policy basis of clauses 22.03 and 22.06 to be particularly helpful and relevant extracts are set out below:

The maintenance of farming activities is essential to ensure the ongoing and sustainable management of rural land in the Shire. However, farm management needs to incorporate techniques to ensure the protection and rehabilitation of environmental features such as remnant vegetation, watercourses and other wetland areas.

Residential and rural residential uses in rural areas often impose undesirable constraints on farming operations, due to concerns about the use of often noisy equipment, chemical sprays, bird deterrents and the like. Residential and rural residential development potentially also increases land prices which can affect farm viability.

Agricultural productivity and landscape character of rural areas have become increasingly threatened as urban development and rural residential development have encroached into the rural landscape.

It is important that the rural areas continue to be protected from indiscriminate subdivision and intrusion from commercial and residential activities, to ensure that this significant resource is protected and enhanced over the longer term.

The rural townships of the Shire, together with urban centres such as Lilydale, provide most of the business and community services for the rural areas. However, there are some opportunities in rural areas to establish non agricultural uses such as tourist developments and rural industries that have a direct relationship with the farming

The Yarra Valley is becoming increasingly renowned for its cool-climate premium wines and there is potential for the expansion of related tourist facilities, including eating and overnight accommodation, in appropriate locations in the Shire. There has also been increasing interest in the establishment of small scale visitor accommodation within the diverse rural areas of the Shire.

However, new tourist facilities will need to recognise and be responsive to the unique characteristics of the Shire's rural and rural living areas. It will also be important to ensure that the establishment of tourist facilities in rural areas does not compromise the ongoing use of productive agricultural land.

11 Mr Bristow submitted that the objectives for broad acre farming areas in clause 22.03-2, and the locational criteria for major tourist facilities in clause 22.06-3 provide as a matter of policy that tourism and recreational uses should be associated with agricultural production on the same land. Mr Wren on the other hand referred to the same set of objectives, or locational criteria to argue that the proposed use is supported by other objectives and criteria which allow for tourism and recreational uses provided they do not adversely affect the character and amenity of adjoining areas.

12 These submissions take us back to our comments in relation to the clause by clause approach to the analysis of policy. As already stated it is our preference to form an overall picture of the planning policy framework and use it as a basis for a balanced assessment of a proposal and its relation to the policy framework. In this case the most relevant aspects of the policy framework can be paraphrased as follows:

* Productive agricultural land should be protected.

* Land uses which remove land from productive agriculture should be avoided.

* Tourism is of importance to the economy of the shire and the Yarra Valley. Tourism based uses associated with rural enterprises are encouraged.

* Tourist facilities should not compromise the ongoing use of productive agricultural land.

* Facilities for outdoor recreation in areas of natural beauty are encouraged, provided they are in keeping with the maintenance of agricultural and rural pursuits.

13 Mr Biasci submitted that a golf course is clearly a use which cannot be reasonably be accommodated in local townships, and therefore it is a use appropriately located within the rural areas of the Shire. In this context how does one assess the proposal having regard to the planning policy framework paraphrased above. In our view important considerations are:

* The subject land has an area of 132 hectares, it is a substantial site, and its conversion to a golf course will result in a substantial loss of productive agricultural land. While it is true that land developed as a golf course could revert to an agricultural use, the practicalities of such a reversion are such that it is reasonable to conclude that the land is lost to agricultural production for the foreseeable future.

* The proposal is essentially the relocation of a private golf club based in suburban Melbourne. The proposal does not result in a recreational facility which supports the local rural community.

* The proposal does include some tourist accommodation, and tourist residents will have access to the golf courses and club facilities. However, the use is predominantly a private golf club with some limited associated tourism based activities.

14 On balance we are of the view that this is a case in which the adverse effect of the proposal, that is the removal of rural land from productive agricultural use, outweighs the benefits which are accrued by the addition of a new tourism based enterprise or through the provision of a recreational facility of benefit to the local rural community.

15 For this reason it is our conclusion that the decision of the Responsible Authority should be set aside and no permit granted.

[1] Teac Australia PL v Port Phillip CC [1999] VCAT 1222 para 2