The decision of the responsible authority is affirmed. No extension of time shall be granted./varied/set aside.

Request for extension of time under Section 81(b) Planning and Environment Act 1987 in which to certify the time to certify a 2 lot plan of subdivision.

2 lot subdivision (re-subdivision to create 2 residential allotments).

The existing lots are Lot 1 (3.277 ha) containing a dwelling sheds and vineyard, and Lot 2 (11.47 ha) containing a vineyard and shed.

The proposed lots are Lot 1 (2.267 ha) to contain the existing dwelling and shed) and Lot 2 (12.432 ha) containing more of the vineyard.

Section 69(1) Planning and Environment Act 1987

Clauses 17.05, 21, 22.06, 35.05, 35.05-3, 35.07 Schedule, 35.07-3

The land is located on the southern side of Morpung Avenue, Irymple, and is currently planted to vines and contains an older conite dwelling with 2 sheds. The dwelling straddles the existing title boundary. Pump sheds are located on the road edge.

12 Fitzroy Street St Kilda Pty Ltd v Port Phillip CC [1993] 3 VPR 103;

Kantor v Murrindindi SC [1997] 18 AATR 285;

Freeman and Freeman Land Surveyors v Mildura RCC [2005] VCAT 1979 (22 September 2005);

Mifsud v Melton SC [2006] VCAT 1488 (26 July 1488);

Central Portland Hotel Pty Ltd v Glenelg SC [2006] VCAT 1205 (19 June 2006);

Roger C Jaques v East Gippsland SC [2007] VCAT 1466 (9 August 2007);

Roy Costa & Associates v Mildura RCC [2007] VCAT 2106 (23 October 2007);

Roy Costa & Associates v Mildura RCC [2008] VCAT 801 (12 May 2008);

1. This is an application[1] for review of Mildura Rural City Council's (council) decision[2] to refuse to grant a an extension of time under permit no P06/247 issued 31 August 2006 for a 2 lot re-subdivision in which to certify the subdivision in respect of the land in Morpung Road, Irymple.
2. The application for extension of time for a further 2 years to certify the plan of subdivision was lodged with council on 20 May 2008 (before the expiry of the time in which to certify the plan on 31 August 2008). The letter seeking the extension stated the reasons for the request were:
   1. Due to the current economic climate within the horticultural industry the owners will not be in a position to commence the subdivision until mid to late 2009.
   2. The subdivision is seen to meet the current provisions of the Mildura Planning scheme.
   3. The provisions of the Mildura Planning Scheme have not altered/changed since the original permit was granted.
   4. Should a new permit be applied; we believe that a permit would be granted as the proposed subdivision is seen to be in accordance with the Mildura Planning Scheme and the original permit was granted in accordance with its provisions.
   5. Granting an extension will not create and adverse effects to the surrounding area.
3. It appears no notice was given of the application and no objections were received.
4. There were no referrals of the request for extension of time under s 55(1) PE Act.
5. On 30 June 2008 Council, consistent with its planning officer's recommendation, declined the request for extension of time. The delegate's report reveals the grounds for refusal were that:
   • There has been a change of planning policy by the rezoning of the land to Farming zone;
   • There are intervening circumstances that bear upon grant or refusal as:
     • (a) a later permit was granted for a re-subdivision of the same land which is in conflict with the permit sought to be extended,
     • (b) the permit does not reflect the purposes of the Farming zone as the permit fails to encourage comprehensive and sustainable land management practices;
     • (c) With respect to amendment C30 the permit is not beneficial as the increase in the size of lot 2 is less than 1 ha; and the proposed lot 1 is larger than the maximum size of 1 ha on irrigated land.
   • a permit would not be issued should a fresh application be made as the proposal is not supported by the Farming zone, SPPF & LPPF, Amendment C30, and is in conflict with principles outlined in previous VCAT decision.
6. The application for review was lodged with the Tribunal on 13 August 2008. The stated grounds for review rebutted the grounds for refusal.

1. Council and the applicant's representatives tabled and spoke to written submissions. These, together with the plans, photographs and other material tabled in the course of the hearing, are attached to the Tribunal's file. No expert evidence was called.
2. The hearing of this proceeding occupied 1 day. No inspection of the land was sought by the parties or was necessary.
3. The application was heard simultaneously with 2 other applications for extension of time nos P2128/2008 (Waddleton) and P1760/2008 (Makpams) involving similar permits and circumstances in the City.

1. The land, the existing lots and the lots authorised by the permit are described in the Information above.
2. The land is situated in the horticultural area of Irymple. Surrounding land is generally used for horticultural purposes and is zoned Farming Zone. There appear to be some "rural residential" sized allotments in the area

1. The land is zoned Farming zone under the Mildura Planning Scheme. At Clause 35.07, the relevant purposes of the zone, in addition to implementing the State and Local planning policy framework, are:

To provide for the use of the land for agriculture.

To encourage the retention of productive agricultural land.

To ensure that non-agricultural uses, particularly dwellings, do not aversely affect the use of the land for agriculture.

To encourage use and development of land based on comprehensive and sustainable land management practices and infrastructure provision.

To protect and enhance natural resources and the biodiversity of the area.

1. Under clause 35.07-2 a permit is required to subdivide land, and the clause further provides:

Each lot must be at least the area specified for the land in a schedule to this zone. If no area is specified, each lot must be at least 40 hectares.

A permit may be granted to create smaller lots if any of the following apply:

• The subdivision is to create a lot for an existing dwelling. The subdivision must be a two lot subdivision. An agreement under Section 173 of the Act must be entered into with the owner of each lot created which ensures that the land may not be further subdivided so as to create a smaller lot for an existing dwelling. The agreement must be registered on title.
• The subdivision is the re-subdivision of existing lots and the number of lots is not increased. An agreement under Section 173 of the Act must be entered into with the owner of each lot created which ensures that the land may not be further subdivided so as to increase the number of lots. The agreement must be registered on title.
• The subdivision is by a public authority or utility service provider to create a lot for a utility installation.

1. The Schedule varies the minimum lot requirements in 2 relevant respects. It is 10 ha. on all land within a gazetted irrigation district or on land where a water licence has been issued and applied to land used for horticultural purposes, and 100 ha. For all other land, the minimum lot size is 100 ha, except where no permit is required for a dwelling (not applicable in this case, as "dwelling" is a Section 2 use in this zone).
2. Clause 35.07-6 sets out an extensive list of decision guidelines.

1. I have considered the submissions of the parties, the material produced at the hearing and on VCAT's file and my inspection of the site.
2. As mentioned above this matter was heard together with two other applications for extension to permits in the City of Mildura. The matters were heard together because they involved similar issues, but the facts in each case were different. Because of the differences in the circumstances a separate decision will be given in each case.
3. The argument in the Mapkams application was argued by Mr Vorchheimer for the responsible authority. In the other two applications, council was represented by planning officers. However, Mr Vorchheimer and the planning officers, Ms Collins and Ms Shaw, co-ordinated their arguments so the principal legal submissions and review of the case material was made by Mr Vorchheimer, as well as the analysis of the facts in Mapkams, and Ms Shaw and Ms Collins argued the respective merits in the Capogreco and Waddleton applications.

1. The Minister of Planning wrote to the Mayor of the City of Mildura on 23 September 2008 and a copy of his letter was produced to the tribunal expressing a view on the appropriateness of recently granted permits of subdivision and excision of lots from Farming Zone land for residential dwelling...
2. The Minister has not sought to intervene or become a party in these proceedings. I understand the letter was produced to the tribunal to indicate the Minister's concern, and, whilst unstated, the tribunal may draw the inference that the Minister's letter influenced their decision to refuse the extensions to permit in these cases.
3. The parties were professionally represented and made detailed submissions on the changes to the planning scheme, the current planning controls and the application of the principles for extensions of permits. The Minister's letter is not a submission to the tribunal in this application and cannot be taken into account. The tribunal is obliged to consider the application of the planning scheme and the principles relating to the extension of permits, irrespective of communications and discussions outside of the tribunal process.

1. It was common ground between the parties that the key issues were whether the permit should be extended having regard to the principles enunciated by the Victorian Supreme Court in Kantor v Murrindindi SC[3].
2. Kantor has been considered in a number of tribunal matters, most notably by Member Martin in Central Portland Hotel Pty Ltd v Glenelg SC[4] and Mifsud v Melton SC[5]. In Central Portland Hotel at [51-52] he identified the correct framework to reach a finding whether or not a permit should be extended.
3. It is noted that this is not an "out of time" decision where the application for the extension of permit was after 3 months had expired after the time for certification or commencement of works as required under section 69(1) P&E Act[6].
4. The matters the Tribunal must consider are

1. whether some adequate reason or material as to why the permit should be extended has been advanced (that is there needs to be more than just a simple request made); 2. whether there has been any change in relevant planning policy or legislation;

1. whether there was any suggestion that the permit holder has been "warehousing" the permit;

1. any intervening circumstances of relevance, such as initial steps taken by the permit holder towards the commencement of the project; 2. the total elapse of time involved, that is the argument to extend or be more difficult if there have already been previous extensions and visa versa; 3. whether the original time limit for the development was adequate in all the circumstances; 4. whether the economic issues involved recently affected the progress of the project, and 5. The probability that if a request made to extend time was refused and a fresh application for a permit would be made, it would be granted. Such a conclusion might perhaps be reached if planning policy remained unchanged; and if it seemed improbable that, if a fresh policy application was made, any new considerations[7] would be raised by potential objectors.
2. The issues in these three cases are:
   • whether an adequate reason has been advanced for the extension;
   • that there has been a change of planning policy; and
   • whether the permit would be refused should a fresh application be made.

1. The grounds for the extension are set out above. Ms Lardner submitted that the "unforeseen circumstances" related to the drought and the grant of the permit coincided with the advent of warnings concerning unprecedented water shortages for allocation throughout Mildura. It is common knowledge that Mildura and other areas have been in drought for 8-10 years, but the impacts of decreased water allocation became critical in early 2006. She submitted the applicants rely for their livelihood on the production and harvesting of table grapes on the land, but in the district irrigation water allocations have fallen from 95% in 2006/7 to 43% in 2007/8 and 21% in 2008/9. It appears warnings that this situation was likely to occur, were made in mid 2006, if there was not sufficient rain. She submitted the water allocations are insufficient to irrigate the crops on the land, to keep the vines alive and produce a harvestable crop, and the applicants have been obliged to buy water at a high cost. In this case, they have already spent $4,000 to lease 10 megalitres of water this "water year" and will need to purchase a further 91.66 megalitres at a cost of about $36,664 to produce a crop, forcing them to "tighten the purse strings" and relegate non-essential expenses.
2. In this context, it is noted that the Plan of Subdivision in the permit application was not prepared by a surveyor, but was a sketch. Thus, the necessary costs to move to certification involve $4-6,000 for preparation of a plan of survey, certification fees of about $1,000, additional council and title office fees and the cost of doing any works required by the permit. She stated that in each case the applicant intended to proceed with certification after the harvest when the returns from the sale of the crop began to come in (in instalments).
3. I find these are adequate reasons for making a request for the renewal of a permit. This is not a case where the applicants have done nothing or have been "sitting on their hands". Serious unforeseen circumstances have intervened, namely, the failure of rain to produce water for irrigation depleting the applicant's resources to fund the costs needed for certification.
4. This is the first extension for a permit. It is my view that council should not be unduly strict in considering first requests for extensions of time. Many things can occur between the grant of a permit and commencement of work, and many difficulties can arise, such as delays in preparing the working drawings and endorsed plans, financing difficulties, sales of a property with the permit, difficulties in finding consultants, builders and tradesmen to commence work and so on. The tribunal must have regard to the practical realities of life and take a reasonably balanced view of the circumstances.

1. The decision in 12 Fitzroy Street, St Kilda Pty Ltd v Port Phillip CC[8] sets out a basic principle for applications to extend the life of a permit. At [22] the Members say:

It is a different situation altogether if a refusal would be the inevitable result of a new application. The purpose of limiting the life of permits is so that they will not survive unacted upon until they are revived after they become inappropriate due to changes in circumstances. Such changes might be changes in the nature of the land and locality so that the proposal is no longer appropriate. The other sorts of changes referred to in the authorities is where planning policies have changed, or planning scheme provisions have changed so that the proposal has become undesirable or contrary to current policies, or indeed prohibited.

1. This is not a case where the proposal has become prohibited.
2. Also, it is relevant to confine the Tribunal's attention to the provisions and policies which are relevant to the permit application. This permit allows subdivision of land controlled formerly by Clause 35.01-4 in the Rural Zone and now by Clause 35.07-3 in the Farming Zone. In both a permit is required to subdivide land. The schedule in each case specifies the minimum areas for each lot as 40 ha, or the area specified in the schedule detailed above.
3. Each provides that a permit may be granted to create smaller lots in the case of a re-subdivision (amongst other circumstances). In the Rural Zone the provision reads:

The subdivision is the re-subdivision of existing lots. The number of lots must not be increased and all lots must be at least 0.4 hectares.

The subdivision is the re-subdivision of existing lots and the number of lots is not increased. An agreement under Section 173 of the Act must be entered into with the owner of each lot created which ensures that the land may not be further subdivided so as to increase the number of lots. The agreement must be registered on title.

1. Accordingly, the permit triggers are the same except that the need for a minimum size of 0.4 ha deleted, but a Section 173 Agreement preventing further re-subdivision is now required.
2. Ms Lardner submitted that in relation to re-subdivision the purposes and the decision guidelines were similar. However I conclude the contrary is the case and that the Farming Zone places a higher emphasis on the retention of productive agricultural land and ensuring that non-agricultural uses, particularly dwellings, do not adversely affect the use of land for agriculture. The introduction of this into the purposes of the zone is highly significant.
3. The decision guidelines also have been changed.
4. Council conceded that the "dwelling issues" in the decision guidelines should not be considered because this is not an application to construct a dwelling, but rather to subdivide. Construction of a new dwelling requires a permit for use under Clause 35.07-2 as a section 2 use and under Clause 35.07-4 for buildings and works is needed, and also the provisions of Clause 35.07-2 must be complied with.
5. However, the agricultural issues in the decision guidelines include:
   • whether the use or development will support and enhance agricultural production.
   • whether the use or development will permanently remove land from agricultural production.
   • the potential of the use or development to limit the operation and expansion of adjoining and nearby agricultural uses.

1. It is also appropriate to consider the re-zoning and policy changes in the context of the question as to whether a new permit would be granted if the application for an extension time was refused. I do not accept Ms Lardner's submission that no new circumstances exist in this case. In her argument, she skilfully relied on the Central Portland Hotel decision where the original permit application had failed to consider relevant heritage issues and the Tribunal held that the recognition of the failure to do so was a relevant new circumstance, but a change in the zoning is also a relevant new circumstance which, in my view, triggers the need to consider the question of whether a new application will result in a refusal. In Mifsud v Melton SC[9] Member Martin said:

"...I consider that the various changes to the planning framework since 201 would raise such new considerations (notably the fact that the subject land now lies within the UGB rather than outside or it.)

1. I do not take into account the references to Amendment C30. Mr Vorchheimer did not refer to it, even though it was referred to in the delegate's report for the original permit application.
2. Mr Vorchheimer argued that the tribunal in Freeman and Freeman Land Surveyors (for Pasquale & Sylvana Cufari) v Mildura RCC[10], laid down a number a number of tests for the assessment of subdivision applications.
3. I have applied the tests to this case and find:

A - Proposed trade-off prevents a loss of land to productive horticulture

The new Lot 1 of 1.277 ha will be the residential lot and will contain the dwelling and associated outbuilding, whereas formerly the dwelling straddled the boundary and each lot had one of the sheds. This lot will effectively become a rural lifestyle lot not capable of sustaining a viable horticultural operation. It is likely that vines on this lot will be removed and the land lost to agriculture..

B - Proposed trade-off avoids any new loss of land to productive horticulture

C - Proposed trade-off results in a lot suitable for productive horticulture without a dwelling or the possibility that a dwelling can be constructed

The larger horticultural lot 2 will remain available for horticulture.

D - Proposed trade-off results in a lot suitable for productive horticulture greater than 12 hectares in area

The proposed re-alignment will result in a productive horticultural lot of 12.432 ha in area, larger than the existing lot 2

E - Proposed trade-off results in a lot suitable for productive horticulture greater in area than any existing lot

The enlarged lot 2 will have a greater capacity for horticulture, but not greater than the whole site as it is likely that lit 1 will be lost to agriculture.

F - Proposed trade-off avoids the use of land for purposes unrelated to productive horticulture

The smaller Lot 1 will consolidate the dwelling and outbuildings on one lot and there will be a probability it will become a "rural lifestyle" lot. The problem of the house straddling a lot boundary could have been solved by a minor realignment..

1. Thus I find the subdivision will:
   • Will not create any additional small lots capable of accommodating a dwelling unrelated with horticultural production;
   • The existing dwelling and outbuildings on lot 1 will be on a smaller allotment than the former lot 1 but the lot and will probably become a "rural lifestyle" lot unrelated to sustainable horticultural production;
   • Lot 1 will most likely be removed from agricultural production;
2. It is not contested that the conduct of a vineyard can have impacts on nearby residential activity, through night work, spraying and machinery noise and the alike
3. On balance I consider these outcomes are generally in consistent with the purposes and decision guidelines of the Farming Zone, as elaborated in the Explanatory Report for Amendment C37 effecting the change, and are also contrary to the Agricultural lands Policy in clause 22.06, and that if the extension of time application were refused, it would be likely that no new permit would be granted.
4. Accordingly, in this case I consider for the reasons expressed above the application for an extension of time should be refused.

[1] Application for review under s 81(b) Planning and Environment Act 1987 (PE Act) against refusal extension of time under a permit.

[3] [1997] 18 AATR 285

[4] [2006] VCAT 1205 (19 June 2006)

[5] [2006] VCAT 1488 (26 July 1488)

[6] For a discussion of this type of application see Waraglen Developments Pty Ltd v Maroondah CC [2008] VCAT 1608 (31 July 2008)

[9] [2006] VCAT 1488 (26 July 1488) @ [39]

[10] [2005] VCAT 1979 (22 September 2005)