Victorian Civil and Administrative Tribunal|2012-11-30

The applicant proposes 90,000 litre water storage on site, all of which will be available for fire fighting purposes. Condition 1(e) is therefore deleted. I will impose a new condition to give effect to the applicant's proposed water supply.

The council is satisfied that the land management plan submitted by the applicant is acceptable. I will therefore amend condition 10 to simply require that the plan is implemented to the council's satisfaction. 2. Condition 11 is inappropriate. I agree with and adopt the findings of the Tribunal in each of the cases referred to me concerning the imposition of a section 173 agreement in the Green Wedge Zone in this municipality[3]. In broad terms, the Tribunal has found such a condition to be unnecessary and onerous in circumstances where the application is for a dwelling not associated with or reasonably required for agricultural purposes. These circumstances apply in the present case. In the cases referred to me, a condition requiring a section 173 agreement has been imposed where the implementation of a farm management plan is a determining factor in the grant of a permit for a dwelling that is reasonably required for an agricultural purpose. 3. In the present case a requirement to enter into a agreement seems particularly onerous in circumstances where the outcomes sought to be achieved by the agreement are either unrelated to the use and development proposed, or are adequately achieved by permit conditions. 4. The agreement proposed by the council duplicates much of what the permit already requires and does no more than add unnecessary layers of control.

[1] The council advised me that it supports the deletion of the second part of the condition.

[2] The council has sought authorisation to exhibit a planning scheme amendment to include the interim policy in the planning scheme. Authorisation has not been received. The planning scheme amendment does not therefore constitute a seriously entertained planning proposal, and it is not a matter I am prepared to accord any weight. The interim policy has however been adopted by council and it is a matter I may have regard to under Section 60 (1) (a) (g) of the Planning and Environment Act 1987.

[3] Feingold v Mornington Peninsula SC [2012] VCAT 1143, O'Keefe v Mornington Peninsula SC [2012] VCAT 583, Targett v Mornington Peninsula SC [2011] VCAT 888, Lyons v Mornington Peninsula SC [2011] VCAT 1761.

Environment Act 1987

Cleine v Mornington Peninsula SC [2012] VCAT 1851 (30 November 2012)

Feingold v Mornington Peninsula SC [2012] VCAT 1143, O'Keefe v Mornington Peninsula SC [2012] VCAT 583, Targett v Mornington Peninsula SC [2011] VCAT 888, Lyons v Mornington Peninsula SC [2011] VCAT 1761

Cleine v Mornington Peninsula SC [2012] VCAT 1851

At a glance

Court

Decision date

Source

Judgment (5 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (2)

Cleine v Mornington Peninsula SC [2012] VCAT 1851 (30 November 2012)