Ms Leanne Zitter, Ms Karen Morrish, Ms Rosemarie Missen and Ms Libby Spinks

1 This was an application under s. 77 of the Planning and Environment Act 1987 against the Wyndham City Council's decision to refuse the grant of a permit with respect to permit application no. WYP 2795. The permit application seeks permission to use land at 2 Hillside Court, Werribee for the purpose of agriculture [private].

2 At the hearing Ms Smith tabled and spoke to written submissions on behalf of the council whilst the respondent objectors and Mr Etna made oral submissions. The parties also presented other material including photographs of the subject land and surrounding area, a plan of subdivision and a petition in support of the proposal.

3 I note that Mr Etna said that he was called in the day before the hearing to represent his wife's uncle, Mr Michael Cannizzaro, who is the owner of the subject land. Mr Cannizzaro was also given the opportunity to make a submission to the tribunal.

4 Although the permit application was lodged in the name of Mr John Cicero, a solicitor with Best Hooper, Mr Cannizzaro is the true applicant in that it is he who wishes to use the land for growing fruit and vegetables. In the circumstances I considered that it would be appropriate to amend the permit application and the application for review to reflect the identity of the true applicant, namely Mr Cannizzaro. The parties offered no objection to this course being taken. Accordingly, I amended both the permit application and the application for review to make Mr Cannizzaro the applicant. I also record that the parties were advised of my school association with Mr Etna, however, they offered no objection to me hearing the application.

5 The subject land is located on the east side of Hillside Court, about 18 metres south of Dequin Court, Werribee. The land is rectangular in shape, with a frontage of 18.47 metres, a depth of 37.94 metres and an overall area of about 700 square metres. The land is vacant and substantially cleared of vegetation, however, it supports a row of tomato plants about half way down its length and some fruit trees towards the rear. The balance of the land is cleared with the soil tilled in a manner that would render it ready for further planting. Some metal posts and what appears to be similar to a shade cloth type material extends along the land's frontage to form a low front fence.

6 According to Mr Cannizzaro he has used the land for growing vegetables since about the time the lot was created, however, the neighbours dispute that this is so, suggesting that the activity has not gone on for that amount of time. Ultimately, the time over which the land has been used for the growing of vegetables is not critical in the circumstances of this case. It is sufficient to say that based on the submissions and material before me, it was not disputed that the land has been used for growing vegetables and fruit and that the period over which this activity has occurred is not sufficient to establish an exiting use right.

7 The land forms part of an outer suburban residential area created via a subdivision approved in February 1990. Lots in the subdivision, as shown on approved plan LP 217636J, are typical residential suburban in size, ranging from about 678 square metres to 814 square metres. Lots in Hillside Court are either occupied by detached dwellings or are vacant.

8 Mr Cannizzaro or members of his family own other lots in Hillside Court. These include a vacant lot to the north, on the corner of Hillside Court and Dequin Court [owned by Mr Cannizzaro] and the property to the south that is occupied by a dwelling that is owned and occupied by Mr Cannizzaro's son and his family.

9 Riverside Avenue runs along the subject land's rear boundary and separates the residential area from an industrial area to the east.

10 In simple terms, Mr Cannizzaro is seeking a permit to use the land for the purpose of growing fruit and vegetables. The produce to be grown on the land is for personal consumption, that is, by members of Mr Cannizzaro's family. Members of Mr Cannizzaro's family will use the land for this purpose.

11 Under the Wyndham Planning Scheme the subject land is located within the Residential 1 zone. The purpose of the zone, as set out at clause 32.01, is as follows:

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

To provide for residential development at a range of densities with a variety of dwellings to meet the housing needs of all households.

To encourage residential development that respects the neighbourhood character.

In appropriate locations, to allow educational, religious, community and a limited range of other non-residential uses to serve local community needs.

12 "Crop raising", a use which is embraced within the definition of "agriculture" under the planning scheme, is defined as follows:

Land used to propagate, cultivate or harvest plants, including cereals, flowers, fruit, seeds, trees, turf and vegetables.

13 "Crop raising" and "agriculture" are land uses that are not listed in any section of the table to clause 32.01-1. Alternatively, the proposed use could be considered as some form on "innominate" use. Either way, a permit is required given that any use that if the proposal is for a use not listed within sections 1 or 3 of the land use table, then it falls within section 2.

14 The decision guidelines are at clause 65. Amongst other things, the decision guidelines require that a consideration must be given to a range of matters including the policies set out in the State and Local Planning Policy Frameworks, the purpose of the zone, orderly planning and the effect on the amenity the area.

15 Ms Smith submitted that the policies at clauses 13, 21.04-3 and 21.05-10 of the scheme are relevant to the consideration of the proposal. I will discuss policy considerations as appropriate later in this document.

16 Following complaints from residents to the council and subsequent follow up action by the council's Planning Enforcement Officer, on the 26 June 2003, the permit application was lodged with the council. Council required notice of the permit application to be given and in response, it received four objections including a petition with 11 signatures. The grounds of objection were summarised as follows in the council officer's "Delegates report" as follows:

* Diseased and dead crops remain on site and are a haven for vermin, flies, feral cats and snakes.

* The owner of the block is not even a resident of the street.

* Setting a precedent for rural activities in a residential area.

* Offensive smell of fertilizers, manure, rotting vegetables.

* Due to the size of the crops it is unreasonable to think it is for personal use.

17 The council's delegate decided to refuse the grant of a permit on 10 September 2003. The grounds of objection were as follows:

1 The application is not consistent with the purpose of the Residential 1 zone under the Wyndham Planning Scheme.

2 The proposal would produce unacceptable outcomes in terms of the decision guidelines contained under clause 65 of the Wyndham Planning Scheme.

3 The application adversely affects the amenity of the area.

4 Approval would result in an undesirable precedent for residential areas.

18 The application for review was filed on 29 October 2003. The grounds of the application for review are:

1 The proposal at the scale and level of activity is consistent with the purposes of the Residential 1 zone under the Wyndham Planning Scheme.

2 The application of the relevant decision guidelines under clause 65 of the Wyndham Planning Scheme supports the grant of a Planning Permit.

3 The proposal does not adversely affect the amenity of the area.

4 To the extent that precedent is relevant, the proposed scale and level of activity of the use will not result in an undesirable precedent for residential areas.

5 The proposed use, if undertaken in conjunction with a dwelling on the land, would have been deemed as ancillary as of right use of the land for the purpose of a dwelling and would not have required a Planning Permit.

19 In support of the council's decision, Ms Smith submitted that the use of the subject land as proposed is not supported by planning policy. In particular Ms Smith pointed to the policies within both the SPPF which seek to encourage appropriate urban design outcomes and those within the MSS, at clause 21.05-10, that seek to achieve the outcome of refocussing Wyndham's image and appearance and ensuring that it is appealing to residents, investors and visitors alike. Ms Smith submitted that the proposed use of the land will not enhance the image and appearance of the locality.

20 Ms Smith went on to say that on several site visits by council officers, the land has had a somewhat 'rundown' appearance with overgrown vegetation. Ms Smith also supported residents claims that the proposal would have adverse impacts on residential amenity by way of smell, and given the condition in which the land is kept, as a "haven for snakes, rabbits, mice and feral cats".

21 In addition Ms Smith also said that appropriately zoned land is available within the municipality for market gardening type activities and that this type of use should be located in such an area where it will not have an adverse impact on surrounding amenity by way of its appearance and the impacts associated with the nature of the activity.

22 Ms Smith conceded that the growing of vegetables can occur within a residential area on an "as of right" if carried out as an activity that is ancillary to a dwelling. Ms Smith went on to argue that in this case, the activity is not associated with a residential activity and furthermore, it is at a scale that is beyond that which would be typically associated with a vegetable growing on a suburban residential property.

23 The objectors supported the council's submission and expressed the same concerns about the appearance of the land, particularly pointing to the overgrown state that the land has been kept in the past, the nature of the fencing along the frontage and the use of barbed wire. The objectors also raised specific concerns about dust generated at times when rotary hoe equipment is used, the noise generated by "farm" type equipment that has been used in the past and the smell associated with the use of fertilizer. The objectors submitted that it is unfair to impose this particular type of use within a residential area and that it is inconsistent with the type of activity that they would have reasonably anticipated in a residential neighbourhood.

24 Both the council and objectors stated that this type of activity was occurring on other residential blocks in the wider area and that the approval of this application would set an undesirable precedent.

25 In support of the proposal, Mr Etna explained that Mr Cannizzaro purchased the subject land along with a number of other lots just after the land was subdivided. Mr Etna said that unlike more recent subdivisions, there is no requirement for a dwelling to be constructed on the subject land within a given timeframe and as such, the land can remain vacant. He submitted that in the meantime, the use of the land for fruit and vegetable growing was not an unreasonable activity given that it could occur of any of the surrounding residential properties on an as of right basis.

26 Mr Cannizzaro said that the vegetables are grown for personal use, that is, by members of his family, some of who require organically grown produce for health reasons.

27 Mr Etna disputed that the proposed use would have unreasonable impacts on amenity. In support of this view, Mr Etna submitted a petition containing 140 signatures from people residing in the Werribee area supporting the proposed use of the land. I note that the petition claims that the council decision is inequitable at not reflected in the approach taken in other cases.

28 On reviewing the merits of this proposal, it seems to me that the relevant matters to consider are the purpose of the zone within which the land lies, any relevant policies, the impact on amenity and orderly planning.

29 Before turning to these matters, it is relevant that I note that the growing of fruit and vegetables is not an uncommon activity within residential areas. For example, I would expect it to be commonplace to find fruit trees, tomato plants, grape vines, various herbs and vegetables or the like growing in suburban backyards. In some cases, although relatively rare, this production extends to the front yard as well. Gardening, whether it be for the production of flowers, fruit or vegetables is a common enough activity that forms part of day to day life in suburbia.

30 However, the above activity typically occurs at a domestic level and ancillary to the primary residential use.

31 If the use were to be conducted in a manner that is ancillary to a dwelling then the simple fact of the matter would be that under the planning scheme no permit would be required. For example, Ms Smith acknowledged that if the subject land were consolidated with an adjoining lot containing a dwelling, the growing of fruit and vegetables would be an ancillary activity if carried out by the residents of the dwelling and no permit would be required.

32 Whilst I am not convinced that it would be necessary to consolidate the titles for the activity to be ancillary to a dwelling, nonetheless the proposal as presented does not involve an activity that is ancillary to a dwelling. Rather, a permit is being sought to use the land for fruit and vegetable growing on a stand alone basis and not part of a residential use.

33 On reviewing the decision guidelines, the first observation to be made is that, in my view, the use of the land for growing fruit and vegetables is not directly supported by the purpose of the zone which is primarily to provide for residential use and development. The purpose of the zone does allow for recreational, community and a limited range of other non-residential uses to serve local community needs to be considered. Although the proposal may be "recreational" in nature, it is not a use that seeks to serve local community need, rather it is a private use. An example of a use that would serve a local community need and therefore advance the purpose of the zone may be community gardens, such as those found in the inner suburbs where residential lots are too small to provide reasonable opportunity for growing even modest amounts of fruit, vegetables and flowers.

34 Further, I do not find support for the proposed use in the planning scheme's policies. The subject land is serviced residential land within the urban area. The thrust of policy, particularly at clauses 14.01, 14.02 and 16.02, is directed towards the consolidation of the urban area, to provide for improved housing and to make better use of existing infrastructure. The proposal does not work toward achieving any of these important outcomes.

35 Whilst I agree with Mr Etna that there is nothing to compel Mr Cannizzaro to construct a dwelling on the land, it is relevant that the proposal has not been presented on the basis that the intended use will have a limited life. Rather, it was explained to me that the applicant has no short or long term plans to develop the land for residential use. I do not consider it appropriate to grant a permit for a use that does not accord with the purpose of the zone or the thrust of policy.

36 A third matter for consideration relates to the impact on amenity. Whilst the circumstances of this case are somewhat unusual in that it is proposed to establish an agricultural type use within a suburban residential area, nonetheless the issues are not dissimilar to the type of amenity conflicts often raised in cases where permission is sought to develop houses in areas zoned for rural use. For example in Tylden Nominees Pty Ltd and Anor v Greater Dandenong City Council and Ors [2001] VCAT 2239 (17 July 2001), the Tribunal noted:

Rural uses, will because of the buildings they require, the equipment that needs to be used and other agricultural practices (eg: the keeping of animals, the use of fertilisers and sprays etc.) all have the potential to have an impact on amenity.

37 I consider that there is validity in the concerns raised by the objectors in relation to unreasonable impacts due to dust, smells associated with the use of sprays and fertilizers, noise associated with the use of machinery as well as the general appearance of the land at times when seasonal crops have been harvested and plants are in a state of decay. Existing fencing has done little to improve the appearance of the land. Nothing was put forward on behalf of the applicant to demonstrate that steps would be taken to mitigate any of these potential impacts.

38 As a matter of orderly planning, I do not consider it appropriate to allow the subject land to be used on a stand alone basis for fruit and vegetable growing as proposed. The use is not supported by the purposes of the zone or policy and it has the potential to have unreasonable impacts on residential amenity. Accordingly I will not grant a permit. If the applicant wishes to grow fruit and vegetables on a stand alone property, then this activity should be conducted on land zoned or identified within the MSS as being suitable for such purpose.

39 Before concluding, it is appropriate that I make some observations about the matters raised in the petition presented in support of the application. First, the proposal in this case has not been presented as an "interim measure" before the construction of a dwelling. Rather, the land has remained vacant for many years and, as noted earlier in these reasons, there was nothing in the submissions presented for the applicant to suggest that a permit is being sought for its short term use. Second, whilst property owners do have rights to use their land, they must do so in accordance with the planning scheme and not in any way which they chose. Third, I note the allegation that the council has not applied the scheme provisions equitably. It seems that other property owners are using residential lots for growing fruit and vegetables, however, no enforcement action has been taken by the council. The council has a duty to enforce the scheme. If residents are aware of breaches, these should be reported to the council with the expectation that appropriate enforcement action will be taken.