Buxton v Yarra Ranges Shire Council [2006] VCAT 1645

The order of the Tribunal is that the decision of the Responsible Authority is varied. It is directed that a planning permit be issued for the use of land at 250 Macclesfield Road, Macclesfield for the purposes of a residential building in conjunction with the use of the land for agriculture subject to the following conditions:

1 The layout of the site and the size of any proposed buildings and works shown on the endorsed plans shall not be altered or modified without the written consent of the Responsible Authority.

2 The use of any land or building or part thereof as shown on the endorsed plans shall not be altered or modified without the written consent of the Responsible Authority.

3 This permit will expire if one of the following circumstances apply:

a

The use is not started within two years of the date of this permit;

b

The use is not completed within four years of the date of this permit.

The Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires or within three months afterwards.

4 Only one permanent dwelling use is permitted on the subject land. The original dwelling must be used for either a "residential building" in conjunction with agriculture; or if not used for such purposes, it must be converted to a non-habitable outbuilding use as required in permit 2003/1981.

5 Car parking must be made available on-site for the parking of at least three (3) visitors cars. No parking of visitors cars are permitted on the adjoining road reserve.

6 The residential building may be occupied by a maximum of 6 persons at any one time.

7 The residential building must not be occupied by persons other than those associated with the agricultural use of the land.

8 The land must only be used for the purpose of one (1) dwelling.

9 The land must not be occupied by more than 6 horses at any one time.

10 The use of the land must not cause disturbance to the amenity of the occupiers of adjoining properties to the satisfaction of the Responsible Authority.

Mr. D. Austin of Counsel. Mr. Austin called evidence from Mr. R. Jones, the permit applicant.

1 Application No. YR2005/731 was lodged with Yarra Ranges Shire Council on 10th June 2005 for the purposes of using an existing building on the property at 250 Macclesfield Road, Macclesfield for a "residential building for outdoor recreation facility and equestrian activities". This description is taken from the permit application form lodged with Council.

2 The agent for the permit application described the proposal in the original application as the use of "....an existing dwelling on the property for visitor accommodation" specifically for persons "using the equestrian facilities on the site". The applicant wished to accommodate a maximum of 6 persons. The applicant described the proposal as follows:

It is intended that the accommodation be booked by one or two groups at a time and the numbers would often be less than 6.

Horses are agisted on the site and are visited by their owners for care, recreation, training, riding lessons and preparation for events.

The horses are largely owned by persons who are not resident in the area and who will avail themselves of the opportunity to stay on the property close to their horses.

The accommodation will not be a Bed & Breakfast establishment in the usual sense dependent on a high turnover of visitors but rather a low key informal facility available to equestrian clients who wish to be near their horses, albeit on a minimal scale and not unlike a host farm (applicant's emphasis).

3 There is a relevant site history with this application. On 21 November 2003, Council received application No. YR2003/1981 for the purposes of erecting a new dwelling on the subject site. The application also proposed the conversion of the existing dwelling on the site to an "outbuilding" by way of the removal of its food preparation facilities and its kitchen stove. Council understood that the applicant intended that this "outbuilding" would be used as an office, lunchroom, feedroom, washroom and tack room in association with the equestrian facilities on the site and that the toilets and wash room would remain.

4 The 2003 application was not advertised and a delegate planning permit was issued on 30th December 2003 for the construction of a new dwelling and the conversion of the existing dwelling into a non-habitable building subject to the following condition (among others):

The existing dwelling must be converted to a non-habitable use in accordance with the endorsed conversion plan to the satisfaction of the Responsible Authority, within three (3) months of the occupation of the permitted dwelling. The conversion must consist of the removal of the kitchen sink and food preparation facilities and must be removed within three (3) months of the occupation of the new dwelling.

5 There was (and is) some confusion as to whether or not the above permit condition has been complied with. In its permit application, the proponent noted that it is now proposed to "...use the existing dwelling for accommodation..." (Tribunal emphasis). The Council delegate report on the current application noted:

A new dwelling was built from permit 2003/1981 and a condition required the existing dwelling to be converted to a non-habitable outbuilding (this was never done) and the use as a dwelling is illegal. The site does not contain any existing use rights for second dwelling as claimed by the applicant. Only one dwelling has been permitted on the land.

6 At the hearing, and to the surprise of the objector, Council submitted that since the preparation of the delegate report it has become apparent that this condition has now been satisfied. Council advised me that the older dwelling has now had its kitchen plumbing closed off and capped as required by the condition on the earlier permit. Mr. O'Farrell, on behalf of the objector still disputes this and I will further discuss this later.

7 Council decided to advertise the subject application and it received one objection citing the following grounds:

•

Previous permit required this dwelling to be converted to a non-habitable outbuilding. This use is contradictory to that permit 2003/1981.

•

A second dwelling is contrary to the zone provisions.

•

Concerns over noise and disruption from visitors.

•

Loss of landscape quality with the construction of the second house.

•

Some of the permit ultra vires.

8 I was advised that council did not offer a consultation meeting between the parties. The current application was ultimately approved by Council's delegate and a Notice of Decision was issued on 1 March 2006 for a "change of use (dwelling to visitor accommodation)" subject to seven conditions including:

4. Prior to commencement of the use/development, an agreement under Section 173 of the Planning and Environment Act 1987 must be entered into between the owner of the site and the Responsible Authority requiring:

(a) Section 173 Agreement is required to provide for: Only one permanent dwelling use is permitted on the subject land and the original dwelling must be used for either visitor accommodation purposes only, or if not used for visitor accommodation purposes, it must be converted to a non-habitable outbuilding use as required in permit 2003/1981.

This agreement is to be prepared by the Responsible Authority at the owner's expense and will be recorded on the folio of the register relating to the site. The owners agree to pay on demand all costs and expenses of and incidental to the preparation, execution and recording of this agreement.

5. Car parking must be made available on site for the parking of at least three (3) visitors' cars. No parking of visitors cars are permitted on the adjoining road reserve.

6. The small-scale visitor's accommodation may be occupied by a maximum of 29 persons at any time.

7. The land must only be used for the purpose of one (1) dwelling at any time.

9 It was common ground between the parties that there was a clerical error with condition 6 which should have read "six persons" and not "29 persons".

10 Application for review P643/2006 was lodged with the Tribunal on 16 March 2006 citing the following grounds:

•

The application is contrary to a condition on an earlier permit for a dwelling.

•

The application is detrimental to our amenity and to the amenity of the area.

•

The application was only possible because of an earlier failure to advertise.

11 This matter was set down before me for hearing on 15 June 2006. On 7 June 2006, the applicant for review wrote to the parties advising of the following additional legal grounds which he sought to rely on:

•

The permit applicant has not demonstrated that the site enjoys existing use rights for agriculture or an outdoor recreation facility;

•

The proposal does not meet the 'in conjunction with' test of the Green Wedge zone;

•

Condition 3 of planning permit YR/2003/1981 is an impediment to the grant of the permit;

•

The proposal is contrary to the SPPF and the LPPF.

12 I have inspected the subject site and the surrounding area. I can confirm the following description as provided by Council:

The subject site has an area of 5 hectares. The site has a consistent slope to the north west towards Macclesfield Road. The site is situated on the eastern side of the road, also having access to a road to the north named Cherry Road. The site currently contains a brick, colourbond roofed dwelling built in the last two years, accessed from Cherry Road. In the north west of the site is the original dwelling, clad with false brick. Associated with this building are stables, a ménage, fenced yards and other shedding for farm machinery storage. Grassed areas, some of which has been treed with cypress, separate the two dwellings and an area has been planted with exotic species for foliage.

13 On my inspection following the hearing (19 June 2006), I noted that four horses were present on the property. The normal equestrian type appurtances of day yards, a lunging ring and shed (complete with tractor and ride-on mower) were evident close to the location of the former dwelling. The new house is removed from the old dwelling and outbuildings by about 100 metres. In plain terms, the site appears to be a low intensity rural property typical of the many that one might find throughout the Dandenongs.

14 The planning controls are most relevant to the application. The subject site and surrounding land is within the Green Wedge Zone (Schedule 2) under the Yarra Ranges Planning Scheme. The site is not affected by any overlays. I note that land nearby to the south west is within a Green Wedge A Zone.

15 There was considerable debate as to what the application is defined as and I will turn to this later. Council assessed the application as a "residential building" and concluded that this was a Section 2 use in the zone requiring a planning permit.

16 There is an array of state and local planning policies which are also relevant to the application and I will also address these later.

17 Before turning to the planning merits of the application, it is important to address a number of the threshold statutory issues raised by Mr O'Farrell on behalf of the objector. These issues are:

•

The relevance of the previous permit.

•

The definition of proposal.

•

The issue of existing use rights.

•

Whether the proposal is "in conjunction with" either agriculture or an outdoor recreation facility.

18 I need to determine these "statutory" aspects before addressing the "planning" related issues of:

•

Compliance with planning policy.

•

Amenity impacts.

19 I have already noted the existence of the previous permit and its conditions. Despite submissions as to the capping of the taps and the disconnection of the stove, Mr O'Farrell maintained his objection that this did not constitute the removal of the kitchen sink and food preparation facilities. As there is no application before the Tribunal to amend this condition, Mr O'Farrell submitted that this condition was an impediment to the grant of the permit because that condition serves an on-going function.

20 In support of this submission I was referred to the case of Beneditti v Moonee Valley City Council (21 VPR 95) of Deputy President McNamara which was also the subject of a Supreme Court review.

21 Mr O'Farrell's point was that the original condition served a function of ensuring that only one self contained dwelling is located on the land.

22 I inspected the subject building and observed (admittedly from outside and through the windows) that the building was not being lived in; that there was a large variety of household material haphazardly stored within a number of rooms inside; that the kitchen sink was disconnected and sitting on the floor; that the kitchen taps had been capped; that the stove had been disconnected and pulled out from the wall. I also note that the permit applicant, Mr Jones, gave evidence to the Tribunal which corroborated these observations and this evidence was not contested.

23 I must deal with the facts and evidence before me, and I am satisfied that the building which I inspected on 19th June 2006 certainly did not qualify as a "dwelling". While it is true that there was, within the building, a "kitchen sink" and "food preparation facilities" none of these were operable nor able to be used by any person as part of a self contained residence. The sink was on the floor, the stove was disconnected and the taps had been capped. While the building had clearly had a former life as a "dwelling" it was now being used for "storage". That is not to say that it could not quite easily be converted back into a "dwelling" but that would need to be the subject of a planning permit application (if indeed one could even be applied for in the Green Wedge zone).

24 The point is that the 2003 permit required the removal of the most basic of living facilities so that the former dwelling would not be able to be used as a self contained residence. Council has now satisfied itself that Condition 3 of permit YR2003/1981 has been complied with meaning that the subject site has on it only one "dwelling" for the purposes of the planning scheme. The current application simply seeks an alternative use of the former dwelling.

25 Like Council, I am satisfied that only one dwelling (the "new" dwelling) now exists on the site and that I have to deal with an application for the use of the remnant building (the "old" dwelling). I therefore do not find that the 2003 permit is an impediment to the consideration of that application. However, if a new permit is to be issued, then I acknowledge that the new permission should be linked with the former permit so that in the event of the new permit not being acted on, then the land must revert to the approved use under the earlier permit.

26 I think it is critical to accurately define what is proposed. This is especially so in the Green Wedge Zone where "accommodation" is a prohibited use other than;

•

Camping and caravan park.

•

Corrective institution.

•

Dependent persons unit.

•

Dwelling.

•

Group accommodation.

•

Host farm.

•

Residential building.

27 Moreover, the zone only allows one dwelling on the lot and, for the defined terms of "group accommodation" and "residential building", the following condition applies (and if not satisfied it means that the use is then prohibited):

must be in conjunction with agriculture, outdoor recreation facility, rural industry or winery. (Tribunal emphasis).

must be used to provide accommodation for persons away from their normal place of residence. (Tribunal emphasis).

29 I don't think that Council helped matters by variously referring to the proposal as "visitor accommodation" in its Notice of Decision, nor by its description of the proposal at the hearing as being either a "residential building for tourist accommodation" or "tourist (group) accommodation" . I would have thought that it is a fundamental first step for any assessment under the planning scheme to establish what has been applied for in a planning sense.

30 Mr O'Farrell submitted that the proposal is, in fact, a 'dwelling' as every one of the criteria in that definition is met. Clause 74 of the planning scheme defines dwelling in the following manner:

A building used as a self contained residence which must include: (Tribunal emphasis).

It includes outbuildings and works normal to a dwelling.

31 As there is already a "dwelling" on the land and as the zone only allows one such dwelling, then it was submitted that the proposed dwelling is therefore prohibited.

32 The definition of a residential building excludes a "dwelling". A "residential building" is:

Land used to accommodate persons, but does not include camping and caravan park, corrective institution, dependent person's unit, dwelling, group accommodation, host farm, residential village or retirement village.

33 I note that the definition of dwelling explicitly nominates the building as a 'residence' which suggests a degree of permanency about it. The definition of a residential building on the other hand, especially when joined by the restriction attached to the Section 2 condition, suggests that the accommodation may be of a more temporary or transitory nature.

34 The "nesting" provisions of Clause 75 of the planning scheme are also relevant in this assessment. The "accommodation" nest splits into nine sub-nests, one of which is "dwelling" and another of which is "residential building". In the nesting diagram, these two definitions are exclusive of one another with their only common link being that they are both considered to be "accommodation". I regard this separation, and the fact that they are separately defined in Clause 74, as meaning that they are clearly distinguishable uses.

35 On the material before me, I am satisfied that the proposal is not a dwelling. The building is not to be a self contained residence but is to be a place where persons who keep their horses on the property may be accommodated from time to time. I am satisfied that what is proposed most comfortably fits within the definition of a "residential building" with the Section 2 condition attached to it emphasising its transitory nature.

36 A "residential building" is only permissible in the zone if it is used "in conjunction with" agriculture, outdoor recreation facility, rural industry or winery. Before turning to the "in conjunction with" aspect of the application, I must address the submission of Mr O'Farrell that there is no basis to the claim that the existing site is used for either "agriculture" or an "outdoor recreation facility". Mr O'Farrell's case was that the land is currently used as "a private dwelling and has some agricultural facilities".

37 Council submitted that the most appropriate description of the existing use is that of "extensive animal husbandry" which is:

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

b) the incidental penning and housing of animals, including birds, for brooding, weaning, dipping, or other husbandry purposes.

38 Importantly, extensive animal husbandry is a Section 1, or 'as of right' use in the Green Wedge zone. I note that this same use is a Section 2 or permit required use in the nearby Green Wedge A zone.

39 The other possible existing use of the site, according to the submissions at the hearing, is that of an "outdoor recreation facility" being "land used for outdoor leisure, recreation or sport" and which may be relevant in respect of claims that the property had been used as a riding school. Outdoor recreation facility is an unspecified Section 2 use in the zone requiring a planning permit.

40 I did not have the benefit of any evidence on this issue (other than Mr. Jones) although I had submissions from Council, the original submission from the permit applicant, and ten letters tendered on behalf of the permit applicant from persons commenting on the operations on the site.

41 Council noted that the "old" dwelling dates back prior to 1969 on its valuation records although they have no records of land use. Council said that the facilities on site are commensurate with the use of horse training and "(A)gistment for 10 horses currently applies".

42 The application material variously referred to the use of the property as a "...riding school, agistment and outdoor recreation continuously for over twenty years...." and, subsequently, that the "...property has been used at least since 1989 and for many years earlier for a riding school and agistment for up to 10 horses".

43 The letters tendered by Mr Austin referred to the site being used as an "agistment park and riding school"; "horse agistment", and "full on riding school and agistment place" since approximately 1975.

44 I note that of the ten letters relied upon by Mr. Austin, most did not deal with the existing use question but instead expressed no objection to the conversion of the building on the site. I also note, and I expressed the view to the parties at the hearing, that I do not place much store on these letters as they were nor provided as evidence and I have no idea as to the basis upon which the views are expressed. However, I did hear evidence from Mr Jones, the permit applicant, who stated that he had owned the property since 2000 and that it had been used for agistment purposes ever since. Mr. Jones was not questioned on this.

45 On the basis of the material before me, I am satisfied that this land is being used for "extensive animal husbandry" being the keeping of farm animals (horses) who obtain their main food source by grazing but who also obtain supplementary feeding and who are housed on the property. The facilities on the site support this conclusion, the material lodged with the application support this conclusion and my inspections support this.

46 As a permit is not required for extensive animal husbandry in the zone, the matter of existing use rights is no longer relevant. I am satisfied that the property is and has been used for the purposes of extensive animal husbandry.

47 The last of the statutory hurdles to overcome is whether or not the proposal (being a residential building) satisfies its attached section 2 condition of being "used in conjunction with" agriculture, outdoor recreation facility, rural industry or winery. I have already concluded that the use of the land is "extensive animal husbandry" and this is a use which is nested within the "agriculture" group.

48 I was referred to a number of recent and relevant cases on this question including Dandenong Ranges Steiner School v Cardinia Shire Council (20 VPR 196); Gibson v Mornington Peninsula (2004 VCAT 1457); Gillies v Mornington Peninsula (2004 VCAT 2218); Perks v Wyndham City Council (21 VPR 262); Croydon Developments Pty Ltd v Yarra Ranges Shire Council, Trevor Hill and Ors (P2725/2005); GC Tragardh v Yarra Ranges Shire Council and G & I Smith (2001 VCAT 583); John O'Neill v Yarra Ranges Shire Council and J Feagain (2003 VCAT 1368).

49 In these cases, the notion of a "functional nexus" between the uses was identified as being the critical ingredient and not simply the co-location of uses. Further, Steiner established that while the agricultural use may be small scale and indeed, not even for commercial purposes, that was not the test of "in conjunction with", as the planning scheme did not place a limitation on the scale of the operation. In the Croydon case, Mr. Liston considered the nexus between a proposed golf course and a walnut grove and noted that (para 19):

It is clear that the association between the proposed golf course and walnut groves is not essential. These are distinct uses of the land which are not necessarily co-dependent. However, I do not think that this is the relevant test, the applicants have developed a proposal which involves the land and use for both outdoor recreational facility and crop grazing in an association which I think is sufficient for the purposes of the planning scheme requirements.

50 Importantly, this nexus was enshrined in a condition requiring the use of the golf course at all times being in association with the use of the land for walnut production and/or agricultural purposes (see also Tragardh).

51 I have previously noted that I am satisfied that there is an on-going agricultural use of this land being extensive animal husbandry. I now need to be satisfied that the proposed residential building can be used "in conjunction with" that agricultural use.

52 According to the applicant, up to four horses will be agisted on the property. Owners will visit their horses, spend time with them, exercise them, presumably ride them, and just be around them. This is both an active and passive outlet for horse lovers. I note that Mr O'Farrell referred me to O'Neill's case where the Tribunal rejected a visitor accommodation proposal associated with a Christmas tree farm. In that case, Mr O'Leary found that while there was legitimacy to the idea, the combination of a tree farm and visitor accommodation was "stretching the intention of both the regional and local policy which supports tourism activities". Indeed he noted that the principal reason for rejecting the application was inconsistency with policy.

53 I will turn to the question of policy later, but I clearly distinguish between the proposed use and the O'Neill set of facts which involved a new dwelling and a much more seasonal association between visitors and Christmas trees. By contrast, the agisting of horses and the care and attention owners want to give them can be both a time consuming and on-going practice. Horses require regular attention and I imagine that owners will often want to visit them, exercise them and ride them. This applicant hopes to provide these owners with overnight accommodation so that they can attend to their horses other than on a day-trip. I think that there is a very strong functional and practical connection between the proposed residential building and the use of the land for agriculture purposes.

54 I conclude that the residential building is "in conjunction with" the use of the land for agriculture. In saying that, I agree with Mr. O'Farrell that if this is a condition-precedent to the approval, then it needs to be reflected in any permission that is granted.

55 In terms therefore of these statutory threshold issues, I am satisfied that the former permit is not an impediment to my assessment as Condition 3 of this permit has now been complied with "to the satisfaction" of Council. I am also satisfied that what is proposed is a "residential building" which is to be used in conjunction with the on-going use of the land for agriculture (being extensive animal husbandry).

56 I will now assess the planning merits of the proposal.

57 The starting point for a planning assessment is to consider the strategic basis of the zone. The subject site is within a Green Wedge Zone (Schedule 2) zone and I think that it is important to acknowledge the purposes of this zone, especially as it is a relatively new zone. The expressed purposes at Clause 35.04 include:

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

58 This purpose (and the others) are reflected in the table of uses and I think that it is relevant that the zone clearly contemplates an array of uses and activities. The Green Wedge Zone is not just a conservation type zone, but is a more enabling zone which acknowledges that green wedge land can serve a variety of functions ranging from agricultural and tourism, through to environmental and recreational. The zone purposes and some of the discretionary uses are to be contrasted with the nearby Green Wedge A Zone which appears to be more restrictive and (for instance) includes 'extensive animal husbandry' as an innominate Section 2 use. The Green Wedge A Zone does not contain the above purpose but it has other purposes including:

To protect and enhance the biodiversity, natural resources, scenic landscapes and heritage values of the area.

To conserve and enhance the cultural significance and character of rural and scenic non-urban landscapes within the green wedge.

59 I conclude that the proposal is consistent with the purposes of the Green Wedge zone in that it provides an agricultural, environmental, recreational and tourism opportunity.

60 As always, there are relevant state and local planning policy considerations that have a bearing on the outcome. Clause 12.02 of the State Planning Policy Framework (the 'SPPF') aims to protect the green wedges of metropolitan Melbourne from inappropriate development by (among other things) supporting development in green wedges that provide for environmental, economic and social benefits.

61 Clause 17.05 of the SPPF has the following relevant objective;

To ensure that that 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.

62 The Local Planning Policy Framework (the 'LPPF') consists of Clause 21 (the Municipal Strategic Statement - 'MSS') and Clause 22 (Local Policies). Clause 21.06 deals with the Non Urban Areas of the Shire and it contains objectives relating to retention of rural character and scenic landscapes and the promotion of sustainable farming practices. Clause 21.06 contains the specific and relevant objective to:

.. provide for low impact tourist facilities which complement the distinctive rural character and natural features of the Shire.

63 Council advised me that this specific objective encouraged tourist facilities so long as they did not detract from amenity nor conflict with other land uses.

64 Clause 22 contains a suite of relevant local policies including Clause 22.03 (Rural Areas) which classifies the subject site and the area as being within a 'Broadacre farming' area which has objectives which draw down on the tourism theme established in the MSS including:

Provide for tourism and recreation uses which have a direct relationship to a vineyard or other form of agricultural production which is conducted on the same site and which are consistent with the policies contained in the local planning policy for tourism (Clause 22.06).

65 This policy then goes on the say that only one dwelling will be allowed on a lot unless another dwelling is needed for those required to assist with the ongoing management of the land for a sustainable agricultural use. Importantly, this same policy also states that (among other commercial uses) tourist facilities and visitor accommodation for six persons or less should not be established in the zone except if they are in accordance with Clause 22.06 being the tourism policy.

66 Clause 22.06 is the "Tourism" local policy which attempts to strike a balance between the tourism and recreation attributes of the Shire on the one hand, with the environmental, landscape, agricultural and amenity features of the Shire on the other. The policy requires that tourism or recreation proposals demonstrate that they provide facilities to enable visitors to experience outdoor recreation activities and which are in keeping with the maintenance of agricultural and rural pursuits.

67 The proposal is for a small scale residential building providing temporary accommodation in conjunction with the use of the land for horse agistment and associated horse related activities. The building is very small and it could only accommodate a limited number of persons at any one time. I would have thought that the proposal is precisely the sort of modest activity that Council had in mind when framing its local policy position. The Dandenong Ranges are well known for their small tourist related activities and I am satisfied that this proposal dovetails neatly with the manner in which the area has developed and with the objectives of Council's local policies.

68 The final arm of the review applicant's case rested on the impacts of the proposal on the amenity of the area. While there was not a great deal of discussion on this point, the concern expressed was that the comings and goings of the visitors to the site would alter the manner in which the property is currently used and that this would have a negative impact on the amenity of the area and particularly the amenity of the neighbour to the west. I had a close look at this issue on my inspection and I am satisfied that because of the modest scale of the proposal, there would be no detrimental amenity impacts.

69 The building on the subject site is located in excess of 100m from the dwelling on the objector property and is separated by Macclesfield Road and extensive vegetation. I do not expect that the common amenity problems of noise, visual impact, hours of operation etc would be evident when there is this degree of separation. I acknowledge that when patrons attend the site most of these will be by car. However, plenty of room is available on the site for car parking and for trailers and horse floats. I think that the incidence of vehicles accessing the property is likely to be very limited and I expect it to be unnoticeable on the surrounding road network.

70 I also acknowledge that patrons will exercise their horses either on the property or on the surrounding rural road network. Once again, I do not feel that this will have any negative impact on amenity. Indeed, I suspect that it will be considered quite typical in an area such as this. The size of the proposal holds the key to all of this. Were this to be a significant commercial agistment/horse-riding venture attracting many patrons then there may be the prospect for amenity impacts. However, it seems to me that the proposal is exactly what Council contemplates in its rural areas which preserves the rural and scenic qualities of the area while allowing some small scale tourism opportunities.

71 I have formed the view that the proposal is allowable in the zone and is contemplated by the planning policy framework of Council. I am also satisfied that it would not impact on the amenity of the nearby residents or of the area. I acknowledge however that there needs to be appropriate conditions in place to ensure that the stated objectives of the applicant and the understandings of the Council are enshrined in enforceable planning permit conditions.

72 At the conclusion of the hearing discussion took place, on a without prejudice basis, on the draft conditions as contained in Council's Notice of Decision. Firstly, it was agreed that the description of the proposal had to comply with the planning scheme, and on this basis the preamble to the permit must specify that the use is that of a 'residential building' in conjunction with agriculture. In my view, this description avoids the need for the proposed legal agreement at Condition 4. I have retained the detail of Condition 4 which makes it clear that only one 'dwelling' is allowed on the site and in the event of the subject building not being used in accordance with this permit then it must revert to a non-habitable outbuilding as sanctioned by the earlier permit.

73 Condition 6 must also be amended to read a maximum of six (6) persons being able to occupy the residential building at any one time.

74 I also agree with Mr. O'Farrell that there needs to be an extra condition which links the ownership of the horses to the temporary residents of the building. In other words, the temporary accommodation is for the use of the partons attending the site for agistment and horse related activities. It is not for just anyone to attend the site and to obtain temporary accommodation especially if there is no nexus between the accommodation and the horse agistment.

75 So as to entrench the small scale nature of the venture, I also accept the applicant's offer of a limit on the number of horses on the property. I accept that there needs to be a general amenity type condition applied but I am not so attracted to a time limit condition on the operations for the agistment or things like horse riding. The current use of the land is so characteristic of the Yarra Ranges and is so modest, that I would be loathe to place too great a control on the quite reasonable and quite passive characteristics of the typical horse enthusiast. I don't think that the planning system should limit the prospects of someone having an early morning ride. I also see no need to limit the hours of usage of the ménage or lunging ring, especially as they are so far away from the nearest residence.

76 I have assessed the application in accordance with the Yarra Ranges Planning Scheme. I have also been greatly assisted by the submissions and by my inspection. I am satisfied that the proposal is for a residential building in association with an on-going agricultural use. The use is allowable in the zone and is contemplated by and supported by planning policy.

77 I conclude that this is a very modest use of an existing building which will provide limited accommodation for persons using this area for the type of activity for which the Dandenong Ranges are famous. I am satisfied that the proposal will have no detrimental impact on the amenity of the area. I believe that extra conditions are required to be imposed so as to ensure that the objectives of both the applicant and Council are met.

78 It is directed that a conditional planning permit be issued.