Pioneer Concrete (Qld) Pty Ltd v. Brisbane CC and anor. [1980] HCA 1; (1980) 44 LGRA 346; 28 ALR 1

Thomas v. Macedon Ranges SC [2005] VCAT 1713 (18.08.05)

D. G. Cooke (application originally made in the name of Chakir Design and Planning)

Lot 3 on Plan of Subdivision No. 342898L being the land in Certificate of Title Volume 10306 Folio 651.

An irregularly shaped area generally like an inverted "L" with a frontage of 442.84 metres to the north side of Bellarine Highway, a depth along its eastern boundary of 1.77 km and a total area of 83.26 hectares.

Cooke v Greater Geelong CC [2006] VCAT 2198

A. This application for review is granted and the decision of the Responsible Authority to refuse to grant a permit is set aside. A permit is granted for a camping and caravan park use and access to a Road Zone Category 1 in accordance with the endorsed plans required in the following conditions which are to appear in the permit.

1 Prior to the commencement of the development hereby approved, amended plans must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed as evidence of their approval and will then be the endorsed plans in relation to this permit. The plans must be drawn to scale with dimensions and two copies must be provided. The plans must show the following:

a

location and details of the effluent disposal system as approved by the Environment Protection Authority (EPA);

b

location, size and details of all advertising signs;

c

any amendments required by condition 10;

d

internal layout and complete elevations for all permanent buildings including the communal activity/conference facility to be located centrally and in reasonable proximity to the reception area;

e

a schedule of all external surfaces for permanent buildings to specify muted colours and non-reflective materials; and

f

engineer designed drainage plans, prepared by a qualified person which must show pit and pipe sizes, invert levels, finished surface and existing surface levels and connection to Council's drainage network with the permissible site discharge rate to be limited to the pre-developed discharge rate to be achieved by the installation of an appropriate stormwater detention facility to cater for flows up to, and to include, the critical 10 year ARI flow (Average Recurrence Interval) and the design of any stormwater retarding basin must be such as not to support the breeding of mosquitoes.

2 Prior to the development being commenced, the developer must submit an Environmental Storm Water Management Plan to the Responsible Authority for approval. A suitably experienced Civil Consulting Engineer must prepare the plan, and when approved it shall form part of this permit. The plan must include, but is not limited to, detailed analysis of - stormwater reuse options; stormwater pre-treatment options; discharge methodology and velocity reduction measures; the type, location and number of litter traps; the type location and number of silt, oil and grease interceptors and the proposed maintenance regime of any devices installed.

3 Runoff from the development must be treated to achieve current best practice pollutant removal targets by the implementation and operation of Water Sensitive Urban Design (WSUD) features, with capacity to treat at least a 3 month ARI storm event. All WSUD features must be designed, constructed and maintained to the satisfaction of the Responsible Authority. A suitably experienced Civil Consulting Engineer must design the facility, and plans must be presented to the Responsible Authority for approval prior to any site works. When approved the plans will form part of the endorsed plans under this permit.

4

a. The site must be drained to the satisfaction of the Responsible Authority and no storm water, sullage, sewerage or polluted drainage is to drain or discharge from the land to adjoining properties.

b. All stormwater runoff must be collected on site and discharged to the satisfaction of the Responsible Authority.

c. All internal property drainage must be designed and constructed to satisfy Australian and New Zealand Standard 3500.

5 Prior to the commencement of the development hereby permitted, a landscaping plan (two copies) must be submitted to the Responsible Authority for approval and when approved it will be endorsed accordingly and will then form part of the endorsed plans under this permit. Such plan must show the following:

a

all surface treatments;

b

the botanical name, height and width at maturity, and location of all vegetation to be used with locally indigenous species to be predominant in a consistent landscape theme throughout the site;

c

screening of all permanent structures;

d

fencing; and

e

incorporation of mature trees throughout the site.

6 The landscape plan referred to in the above condition must be prepared by a qualified Landscape Architect, who is a member of the Australian Institute of Landscape Architects, or a person with a suitable background in horticultural science or an allied field to the satisfaction of the Responsible Authority.

7 Prior to the commencement of the use hereby approved, landscaping works as shown on the endorsed plans must be completed to the satisfaction of the Responsible Authority and then maintained to the satisfaction of the Responsible Authority.

8 The proposed development must not affect the Public Acquisition Overlay for the future widening of the Bellarine Highway.

9 No structure is to be constructed or works performed, on land affected by the Public Acquisition Overlay for the Bellarine Highway without the written consent of VicRoads. All future buildings should be setback at least 20 metres from the Public Acquisition Overlay boundary.

10 A "Type C" intersection treatment must be provided on the Bellarine Highway at the entrance into the development in accordance with AUSTROADS publication "Guide to Traffic Engineering Practice, Part 5 - Intersection at Grade". The access is to incorporate two 3.5 metre wide sealed through lanes, a 3.0 metre wide sealed right turn lane and 3.0 metre wide sealed left turn lane to the satisfaction of the Roads Corporation (VicRoads).

11 The vehicular entrance is to be designed to cater for the turning movements of large towed vehicles and sufficiently wide to allow two way movement for vehicles entering and departing the subject site.

12 Should the roadworks, as specified in the above condition, lie within private property, a widening of the road reserve will be required, at no cost to VicRoads. The developer must then engage a licensed surveyor to prepare a Plan of Subdivision showing the affected land labelled "ROAD", which is to be vested in the Roads Corporation upon certification of the Plan of Subdivision. Subsequent to the registration of the plan, the subdivider must ensure that the original Certificate of Title to that area that issues in the name of the Roads Corporation, and posted to: VicRoads - Property Services Department, 60 Denmark Street KEW, 3101.

13 The design and construction of specified works must provide for meeting of clear zone requirements to all structures for a 100 km/h speed zone.

14 Installation of all advisory and regulatory signage and line marking to provide for safe operation must be in accordance with VicRoads Traffic Engineering Manual Volume's 1 and 2.

15 The discharge of any concentrated drainage or sullage onto the arterial road reserve must not be permitted unless approved in writing by VicRoads.

16 All mitigating works specified by VicRoads are to be at full cost to the applicant and be completed prior to the development coming into use.

17 The applicant must obtain the written consent of the Coordinating Road Authority (VicRoads) in accordance with Section 63(1) of the Road Management Act 2004, prior to conducting any works within the arterial road reserve.

18 The applicant must give notice to VicRoads Manager Program Delivery; (telephone number 5225 2525) at least 14 days prior to the commencement of works to confirm construction standards and traffic management issues associated with the work.

19 Prior to commencing work within the declared road, the developer must:

a

provide evidence that the developer/developer's contractor has a level of public liability insurance acceptable to VicRoads for the duration of the proposed works;

b

ensure detailed design plans of all mitigating works are forwarded to VicRoads' South Western Region Geelong Office for approval;

c

prepare a specification for the works in accordance with relevant section(s) of the VicRoads Standard Specification for Roadworks and Bridgeworks;

d

ensure any consultants and or contractors engaged in the design or construction process are pre-qualified by VicRoads at Level RI;

e

demonstrate that all works will be administered in accordance with quality assurance principles, including but not limited to safety, Environmental and Quality Management Systems;

f

ensure that work site practices are in accordance with the Road Management Act 2004, Worksite Safety - Traffic Management, Code of Practice;

g

meet all associated VicRoads surveillance and administration costs incurred during construction of works within the arterial road reserve; and

h

provide a security deposit of 5% of the estimated cost of the works within the road reserve to VicRoads, of which 2.5% will be returned to the applicant on practical completion of the works. The balance of the deposit will be returned to the applicant following the completion of the maintenance defect period of twelve (12) months.

20 Prior to the commencement of the development hereby approved, the developer must obtain any necessary Works Approval from the EPA.

21 Car park and accessways must be constructed with an all weather surface to the satisfaction of the Responsible Authority.

22 In areas set aside for car parking, measures must be taken to the satisfaction of the Responsible Authority to prevent any damage to fences or landscaped areas.

23 The camping and caravan park hereby approved must not allow for the permanent accommodation of persons on site (with the exception of the manager) at any time.

24 All garbage/refuse generated by the use hereby permitted must be stored on the site and screened from view from outside the site, prior to it's disposal.

The storage, removal and disposal of such garbage/refuse must be undertaken in such a manner so as to avoid any nuisance, pollution or loss of amenity to the surrounding area and must at all times be to the satisfaction of the Responsible Authority.

25 Outdoor lighting must be designed, baffled and located to the satisfaction of the Responsible Authority to prevent any adverse effect on adjoining land or road reserve.

26 The amenity of the area must not be detrimentally affected by the use or development through the:

a

transport of materials, goods or commodities to for from the land;

b

appearance of any building, works or materials; or

c

emission of noise, artificial light, soot, ash, dust, waste water, waste products.

27 The development as shown on the endorsed plan(s) must not be altered without the written consent of the Responsible Authority.

28 No pets are to be allowed on the site.

29 No outdoor fires are to be allowed at individual camp sites.

30 A boundary fence must be provided to the satisfaction of the responsible authority and maintained to the satisfaction of the responsible authority.

31 This permit will expire if one of the following circumstances applies:

a

the development and use are not started within two years of the date of this permit; or

b

the development is not completed within two years of the date of commencement.

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.

B. The Responsible Authority is directed pursuant to Section 85(1)(b)(ii) of the Planning and Environment Act 1987 to issue a permit in accordance with Order A above.

_________________ _______________________

RUSSELL BYARD NICK HADJIGEORGIOU

SENIOR MEMBER MEMBER

Ms. Melissa McBride, town planner of the City of Greater Geelong appeared for the responsible authority. She presented written and oral submissions and called Mr. Trevor Budge, town planner as an expert witness. He presented and adopted a written report and gave oral evidence.

Mr. S. French, solicitor, of the firm of Coulter Roche Solicitors, appeared for the applicant. He presented written and oral submissions and called several witnesses. They were Mr. Roger Grant, ex director of Geelong Otway Tourism; Tim Bone, holiday park proprietor; and Mr. David Gotley Cooke, farmer. Each gave oral evidence and was cross-examined. Mr. Grant and Mr. Bone adopted written statements of evidence which were tendered.

Ms. Fiona Conroy, objector, appeared for herself and her father, David Conroy. She made written and oral submissions.

Ms. Margot Harrison, Mr. Richard Harrison and Mr. Bernard Malone, objectors and owners and occupiers of nearby land appeared in person. They each made written and oral submissions.

Ms. Allana Goldsworthy, barrister, appeared on the instructions of the firm of Whyte, Just and Moore Solicitors for Anthony Steains and Petrina Steains. She presented oral submissions and written submissions with a written addendum.

Various plans, photographs and other documents were tendered in evidence. The evidence and submissions in documentary form have been retained on the file of the Tribunal.

The first day of hearing was at the law courts in Geelong. After the hearing on that day we inspected the land and locality before returning to Melbourne where the hearing continued on the following day.

Application under s.77 of the Planning and Environment Act 1987 (PE Act) for review of a decision of the Responsible Authority to refuse to grant a permit.

Camping and caravan park with access to a Road Zone Category 1.

Rural Zone (with a small portion being Public Use Zone 1). A strip of land along the highway frontage of the southern end of the land is subject to a Public Acquisition Overlay (Schedule 3) in favour of the Roads Corporation (VicRoads), apparently for future road widening purposes.

The permit applicant in this case was D.G. Cooke. The applicant for review appears in the review application form as "Chakir Design and Planning". There are two problems about this which, unless corrected, would defeat the proceeding. In the first place this proceeding is brought under s.77 PE Act. That section gives a right to the permit applicant to apply for a review in the event of the responsible authority determining to refuse to grant a permit. As Mr. Cooke was the permit applicant, only he has the legal right to apply for a review.

In any event, a party to a proceeding before the Tribunal has to be a legal person. "Chakir Design and Planning" may be a firm name or business name, or perhaps even part of an incomplete statement of the name of a company, but it is not strictly the name of an identified human person or persons or of a corporation like a company or co-operative recognised by the law as a legal person. It seems surprising that an experienced town planner or an experienced firm in that field should make these mistakes in completing a review application.

The problems were remedied, in this case, by amending the application for review to substitute Mr. D.G. Cooke as applicant.

Ms. Fiona Conroy, although an objector, had not filed a statement of grounds. Consequently, she was not a party. She applied to be joined pursuant to s.60 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act). The other parties consented or did not object to such joinder, so she was joined accordingly.

1 The review site is a substantial farm of over 83.26 hectares located on the north side of the Bellarine Highway at Marcus Hill. The Bellarine Highway is the main road leading from Geelong to Queenscliffe and Point Lonsdale. It is a busy highway carrying a considerable amount of traffic to those and other beaches and resorts dotted around the northern, eastern and southern sides of the Bellarine Peninsula. The site is fairly centrally located toward the end of the Peninsula having road access to such various beaches, towns and other facilities at distances of 6 - 10 kms and thereabouts. The site, however, is not on the coast or sufficiently near to it so that people staying on the review site would be within convenient walking distance of such attractions.

2 The review site and surrounding land is relatively flat. The written submissions of the responsible authority referred to a gentle slope toward the east but there does appear to be a fall from the south and north towards a substantial dam and drainage line running to the east located towards the northern end of this farm property. The existing farm house and sheds are located towards the centre of the land. The portion of the site intended for this proposed camping and caravan park has an area of 12.5 hectares at the southern end fronting the highway, save for the road widening reserve. An existing accessway leading to the existing dwelling on the land is located along the western boundary of the site.

3 The landscape qualities of the site and the surrounding area are pleasant enough without being anything remarkable. A stand of substantial trees runs across the frontage to Bellarine Highway. These are relatively mature and attractive native trees. The canopies are sufficiently elevated that it is possible to look into the site from the highway with the view obstructed only by the tree trunks. A similar stand extends across the front of the next property to the west although the row of trees on that land appear to be some form of pine with a pine plantation sitting behind.

4 The highway, as it runs past the review site, is a sealed two lane carriageway. A relatively short distance further to the west the highway becomes a four lane divided road. It appears that the Roads Corporation is working along the highway from west to east upgrading it to that standard.

5 It was put to us that the site is in a green "gap" between towns or urban development further to the east and west. There are, however, quite a number of tourist, recreation, convenience and other facilities fronting each side of the highway. For example, there is a sign for holiday cabins nearby on the other side of the road. Further along there are entertainment facilities, restaurant and other uses that might serve a highway or a surrounding tourist area. There is a substantial hardware establishment and other facilities a short distance to the west. Whilst noting their existence, we do not say that these other features are notedly out of place or unduly obtrusive in their highway context.

6 The promoters of this proposal, and in particular Mr. Tim Bone, who gave evidence, referred to the proposed facility as a holiday park rather than as a caravan park or a camping and caravan park. This preference is on account of a view that the nature of such facilities is changing and that holiday park better describes such places. Be that as it may, the land use, so far as the planning scheme is concerned, is camping and caravan park. There is a description summarising the proposal and in paragraphs 9 - 12 of the written submissions tendered by Ms. McBride on behalf of the responsible authority. We are indebted to her for the following extract (we have changed her paragraph numbers to roman numerals so as not to confuse them with our own). Her paragraphs read as follows:

ix.

It is proposed that the park will provide the following types of accommodation:

•

A caretaker's house

•

148 cabins

•

9 ensuite sites

•

53 powered sites

•

30 "drive through" sites for larger vehicles

•

informal tents sites; and

•

4 dormitory buildings for use by school groups or backpackers.

x.

The application states that the park will not provide accommodation for permanent residents (with the exception of the Site Manager).

xi.

To support this accommodation, it is proposed that the park will contain the following facilities:

•

Office and reception area

•

Car wash

•

Adventure playground

•

Indoor/outdoor swimming complex

•

Tennis courts

•

Basketball and beach volley ball court

•

Recreation and games room

•

Indoor kitchen

•

Toilet blocks located throughout the site

•

Mini-golf

•

BBQ facilities and

•

Animal 'farm' nursery

xii.

A new crossing, centrally located, is proposed from the Bellarine Highway to service the Park.

This new crossing is to operate independently of the existing dwelling access which is to remain.

7 Mr. Bone is involved in the management of a somewhat similar, but not identical, facility at Anglesea. He also has a wider interest in the camping and caravan industry. He is a director of the Big 4 co-operative of such facilities which apparently run to 160 sites in Australia. This organisation represents co-operation between such caravan parks which are supposed to be of a higher quality in relation to cleanliness, mode of operation and location. Mr. Bone portrays himself, the Anglesea Park and this proposal as being up to date, high quality and up with current imaginative improvements for such parks. Environmental concerns are regarded as being of considerable importance and the site at Anglesea has so called "Gum Nut" accreditation. It is also the only "Green Globe" accredited park in Australia although Mr. Bone informs us, some other superior parks are seeking such recognition. Apart from conventional holiday making and short term accommodation typical of caravan parks, the Anglesea place, and the current proposal, are designed to cater for other business including group events such as school groups, youth clubs and the like. Another aspect is the provision of facilities for residential (live in) conferences. A multi purpose building at Anglesea provides a games room and TV room that can be adapted to a conference hall and dining room. Dining and cooking facilities to cater for conferences are provided. All these things are contemplated for the current proposal with the advantage that it would be designed and set up for these purposes from the beginning rather than, as with the Anglesea place, having to be improved to a higher and more imaginative standard over time.

Location in Relation to the Coast, Beaches and Coastal Towns

8 An initial impression of this proposal is to notice that it is not within walking distance of any beaches or the coast or any of the coastal towns dotted around the northern, eastern and southern sides of the Bellarine Peninsula. The proposal provides for certain on-site entertainment and attractions, and there are some other facilities in relatively close proximity on the highway, but holiday makers would find many of the main attractions of the Bellarine Peninsula from a tourist point of view to be beyond normal walking distances. In this respect the proposal appears as less than ideally located.

9 A number of planning policies of local and regional importance emphasise how important tourism is in the area covered by the City of Greater Geelong planning scheme. The attractions of this part of the Bellarine Peninsula speak for themselves, for anybody familiar with the area. The evidence and policy documents relevant to tourism indicate that a shortfall in accommodation of this sort in this area has been recognised for a number of years. Since that recognition, the available accommodation has not increased to meet the needs, but rather has been reduced. This has been due to the total or partial closure of a number of facilities that existed when the assessment was made. The current situation represents greater deficiency, and a greater need than the situation several years ago when the initial assessment was made.

10 The non viability of locating caravan parks in coastal locations was explained to in the evidence given at the hearing. This may seem surprising. However, it is explained in the evidence given in relation to the operation of tourism in the area. The explanation given is that it is not really feasible to establish new facilities of this sort in close proximity to the coast. That is because of the increased land values that now pertain in such areas. A large area is needed for such a facility and land values as such that the viability of such uses in such localities has been undermined. It represents a better return to use land in such localities for residential purposes. This is illustrated by the closure and reduction of various previous facilities that have been converted, or partly converted to residential uses. It is suggested by Mr. Grant, on the basis of his knowledge and experience in this field, that this trend will continue, and that some parks that have been half converted can be expected to wholly convert in the relatively near future. His evidence indicates that, however, desirable sites close to the coast might be, they are not now available in this area. If the recognised need is to be met (a need not only recognised in his evidence but in relevant planning policy provisions) it will have to be met on sites like this one situated beyond walking distance from the coast. On that basis, this is a good site, particularly having regard to its highway location and its central location and relative accessibility to a range of beaches, towns, coastline and other recreational facilities. The evidence of Mr. Grant on these matters was not challenged or contradicted and we accept it.

11 It was submitted that the proposal is inappropriate having regard to the purposes of the rural zoning within which it is situated. The argument advanced in this connection is based on the very important principle, in relation to planning generally, and in particular in relation to rural zoned land; that it is hardly in accordance with sound planning to allow proposals that undermine the primary purpose of the zoning. Whilst we recognise and affirm this principle as being very important, a number of the submissions and opinions advanced to us exaggerated it and took an unduly "blinkered" (or narrow) approach in relation to it.

12 Apart from general purposes applicable to all zones, the first purpose specified in cl.35.01 in relation to the rural zone is:

To provide for the sustainable use of land for Extensive Animal Husbandry (including dairy and grazing) and Crop raising (including Horticultural and Timber production).

13 Put shortly, farming is a primary purpose of rural zoning. Uses and developments that would significantly undermine or compromise farming are not appropriate, and should not ordinarily receive planning permission unless perhaps to meet some pressing community need that cannot otherwise be catered for.

14 However, it is an exaggeration to suggest that rural land can never be devoted to purposes other than farming, even if there are not significant needs to be met, the areas involved are small and the affect will not significantly detract from farming purposes. Some of the submissions put to us on the overstated proposition that to subtract 12.5 hectares from a farm of over 83 hectares is quite unacceptable because the land must be retained for farming. That is to wholly ignore other potential uses that are quite appropriate in planning terms. In this particular case, the land is also located on a highway and in the midst of a tourist area surrounded by an interesting array of tourist attractions. These circumstances also need to be taken into consideration. Highway related uses, where there is a need for them, can be appropriately located on a site like this, even at the cost of a minor reduction of farming area, particularly if it is to meet a recognised need. It might be otherwise in the absence of tourist suitability and away from the highway. Nevertheless the extent (and relative smallness) of the area lost for farming has to be kept in proportion.

15 There are uses and developments that do seriously threaten farming viability. Amongst the most pressing problems in relation to rural planning is the pressure and tendency to subdivide land into unduly small allotments so as to capitalise on the residential value of land to provide rural residential allotments or hobby farms that are not genuine farming enterprises at all. If it was proposed here to cut this farm up into a lot of little bits so that commuters can live in a rural context and commute to Geelong or Melbourne we would see very strong planning reasons for refusing such a proposal. Even an excision, or a proposal to add a house or houses but not required for farming purposes even without supervision, would need planning justification that normally cannot be established. There are many decisions of the Tribunal and its predecessors that take a firm line against such proposals and in which the planning arguments against such proposals are developed and expounded at some length. We recognise and agree with all this, but do not consider that it does or should prohibit all non-farming activities in a rural zone.

16 This is made clear enough by the terms of the planning scheme itself. The table of uses in relation to the rural zone is found in cl.35.05 of the planning scheme. This table allows quite a number of uses of land to be carried on without the need to obtain a planning permit. Many other uses, including accommodation, which in turn, includes camping and caravan park, appear in section 2 of the table. Those uses are allowable provided that a planning permit is obtained, and provided that any applicable condition is met. In this zone quite a number of uses are permissible, subject to the obtaining of a permit. There are three prohibited uses namely brothel, cinema based entertainment facility and shop (other than convenience shop and equestrian supplies). Prohibited uses appear in section 3 of the table of uses. If camping and caravan park was intended to be prohibited in the rural zone, it would appear in that list of prohibitions. It does not. The need to retain land for farming purposes, although important, should not be applied so strictly as to amount to a de facto prohibition on a section 2 use where the planning scheme does not impose such a prohibition by placing the use in section 3 of the table.

17 The planning scheme recognises that this use may be appropriate in particular rural zone locations depending on circumstances, but will not necessarily be appropriate; or if appropriate only appropriate subject to conditions. In other words, the responsible authority, and on review this Tribunal, must have a careful look at any such proposal to determine whether it should be allowed, and if so on what conditions. This is not at all the same thing as bringing a closed mind to a consideration of a proposal based on a proposition that farming land in a rural zone can never be used for any other purpose even if it involves a relatively small area, and whether or not it would meet a recognised need or achieve a desirable planning purpose.

18 In this connection we were referred to a recent decision of the Tribunal in Department of Sustainability and Environment v. Moira Shire Council and another [2006] VCAT 1917 decided on 15 September 2006. That was a proposal for a group accommodation (not a camping and caravan park) of 350 cabins on the Murray Valley Highway at Bundalong between the highway and Lake Mulwala. In that case the responsible authority had determined to grant a permit but the Tribunal upheld the objections of the Department of Sustainability and Environment and others to the proposal. We say nothing as to whether that decision was appropriate in the circumstances of that case. Of course all these cases have to be determined in relation to their own circumstances, and no two cases are precisely the same.

19 However, the aspect that was particularly emphasised to us in relation to that case refers to the question as to whether there was "strategic justification" to use that site as a tourist resort. The proposition was raised before us that this was an important reason for refusal, and it should likewise be an important reason for our refusal of this proposal. We note, by the way, that there were other reasons for refusal in that case including the suggestion that the proposal was part of a piecemeal application contrary to the principles recognised by the High Court in Pioneer Concrete (Qld) Pty Ltd v. Brisbane City Council and others [1980] HCA 1; (1980) 44 LGRA 346; 28 ALR 1. That is an important principle and might alone have justified the refusal in the Moira case.

20 Nevertheless, such phrases as "strategic justification" do appear frequently in the reasons of the Tribunal in that case. Unfortunately they appear without their meaning being stated with any precision. Strategic planning or strategic plan can mean broader scale and longer range planning as opposed to local and immediate concerns. It may just mean planning policy. If so, there is an important point we need to make in this connection. If it is being argued that this proposal should be refused because there is no specific policy provision saying that this site or this locality should be used for a camping and caravan park; that is not a reason for refusal. If there was specific encouragement of that sort, it would certainly be a consideration in favour of the proposal. However, the absence of such encouragement, if it were absent, is not a reason for refusal. Section 2 of the table of uses lays it down that the planning scheme considers that the use at least can be appropriate in a rural zone. To say that it cannot would be to deny the actual control provisions in the planning scheme.

21 Once there was little expressed guidance in planning schemes as to the purposes and policies intended to be achieved by the control provisions. Nowadays, there is an abundance, perhaps an over abundance, of purposes, guidelines, policies and stated purposes. The problem is not now having to work out what the purposes behind the controls might be, but rather to distinguish, balance and reconcile various repetitive, varying and sometimes contradictory policy provisions set down, sometimes in layers, and sometimes scattered in various parts of planning schemes. The very extent and number of policy and guideline statements may give the impression that every possible relevant policy proposition is stated and provided for. It would be a fallacy to think this, although the argument that the absence of specific encouragement indicates refusal is based on just such a fallacy.

22 In the relatively recent past the Tribunal was called upon to determine a case involving a proposal for live hunting on an extensive farm land property[1]. The idea was that partridges and pheasants, raised elsewhere, would be planted in the reeds and bracken so that hunters with shotguns and hunting dogs could go shooting for them. This is a quite unusual use. It would be hardly surprising if there were no specific policy provisions or no specific policy encouragement (or so called strategic justification) for such a use. It does not follow from this that the use is necessarily inappropriate, anymore than it is not apparent that it would necessarily be appropriate. It is a matter that has to be assessed and judged. (A similar situation probably applies in relation to other uses involving shooting such as rifle ranges, pistol range and clay pigeon shooting range. There is not likely to be specific policy encouragement. That does now mean that they are intended to be prohibited. We have not gone to the trouble of researching the point to check in relation to these other firearm uses. In fact it is probable that such uses can only be accommodated in a rural zone or similar farming zone.)

23 Although we have picked out a quite unusual use to illustrate our point there are probably many uses that appear in respective sections 2 of tables of uses in relation to which there is no particular policy provision and no particular encouragement or discouragement one way or the other.

24 Some uses can probably be only be accommodated in rural zones and similar farming zones. To hold that they cannot be allowed in such zones in the absence of specific policy encouragement would be to hold that they are prohibited where they do not appear amongst the prohibited uses in section 3, but amongst the permissible ones in section 2.

25 We were referred to the provision in cl.31.02 of the planning scheme dealing with the use and application of the use table and in particular section 2 uses in relation to which permits can be granted. The provision reads:

Because a use is in Section 2 does not imply that a permit should or will be granted. The responsible authority must decide whether the proposal will produce acceptable outcomes in terms of the State Planning Policy Framework, the Local Planning Policy Framework and the purpose and decision guidelines of the zone and any other decision guidelines in Clause 65.

26 This is an obvious enough proposition and represents the common law that applied long before this provision was inserted in planning schemes. We are well aware of it, and regard it as obviously correct, however, it is equally obvious that section 2 uses that are permissible (that is allowable if a permit is granted), and should not be treated as prohibited whether or not, in a particular instance, they are specifically mentioned or encouraged in policy statements.

27 In any event, in this instance there is policy justification for a tourist facility like a camping and caravan park in this general locality (Bellarine Peninsula). Like most planning proposals there were various considerations, including policy considerations for and against a particular proposal. It is often necessary to assess various considerations, and weight them in relation to the particular proposal.

28 This proposal would represent a minor loss of land now used for farming, but it must be remembered that this is a minor loss and it must be balanced against policy objectives including meeting tourist related objectives of the scheme.

29 It was suggested that a camping and caravan park is an urban use that should not be allowed on rural zoned land. Of course, some camping and caravan parks are located in an urban situation. It does not follow from this that they all are or should be. It does not even follow that the caravan park like this one, which would depend on people coming by car, necessarily has to have other service facilities nearby. Camping and caravan parks are frequently located in non-urban situations. It is often desirable to have them close to tourist facilities or tourist attractions. The large camping area, admittedly in a national park, at Tidal River is approximately 60 miles from the township of Foster and some similar distance from Fish Creek which are the nearest towns. The camping area related to the Princess Margaret Rose Caves in Western Victoria are not in an urban area but is located close to the caves. The same at least was referred in relation to tourist accommodation at Lake Condah. Interstate examples are Uluru (Ayers Rock) and Flinders Ranges. Other examples could be mentioned. We reject the notion that this use is limited to urban areas and that it is not appropriate in rural or other non-urban locations.

30 Arguments were advanced to the affect that there might be better sites, nearby or elsewhere. It is not much help to think that there might theoretically be better sites if they are not in fact available. The relevant question for us is whether this one is acceptable rather than whether some other site that might or might not be available, would be better. Our role is to ensure an acceptable planning outcome. It would be fanciful to believe every planning decision could give an ideal outcome.

31 A number of arguments were advanced to suggest that this proposal would have adverse impacts on surrounding rural farming activities. Some such propositions were advanced by nearby hobby farmers whose work occasions their commuting to Geelong or elsewhere. Others can fairly be described as genuine farmers. Be that as it may, the suggested adverse affects were, in our judgement, unrealistically exaggerated.

32 Noise generated on the site is likely to be of relatively low volume and, in any event, is sufficiently remote from existing houses that distance will attenuate its affects and will not cause a problem. In fact, the noise of vehicles on the highway is likely to provide a sufficiently high background noise so as to be noticeable rather than activities connected with the proposed caravan park.

33 A converse argument was raised that noise arising from normal farming activities, or other affects such as dust, might have an adverse affect on people occupying the caravan park.

34 This is a rural zone and an activity coming into it has to be on the basis that it accepts normal rural activities including such things as tractors, ploughing, cattle trucks, milk trucks (not apparently relevant here) dust, superphosphate spreading and drift from spraying. In fact, complaints amongst farmers for example in relation to adverse affects of spraying on other rural activities may be more to the point. Again the distances involved will attenuate noise effects and other suggested concerns. This site is buffered to north and south by the highway and the balance of the farm of which it will be part. Furthermore, most of the potential concerns raised in this connection are quite occasional and would not arise during peak caravan park usage. Mechanical night harvesting of 7 acres (not hectares) of grapes was mentioned where that would occur for only one night in a year.

35 Traffic concerns and traffic safety were mentioned but do not raise a justifiable reason for refusal. The highway is busy, but it is now. This proposal will not increase traffic beyond the carrying capacity of the highway. It was put that there has been a dangerous intersection a short distance to the east of the review site where there have been a number of accidents (including some fatal). The dangerous aspect of this crossroad has been rectified by new road works several years ago since which there have been no accidents. In any event, this is a road that is and must be used by many people. To say that there could not be development attracting people to this site because of the danger of the highway would logically mean that there should be no further development further east along the highway including at Queenscliffe or Port Lonsdale because the increased population will need to use this road. The proposition is not tenable.

36 It was suggested that it is dangerous to have to cross the road from the proposed new crossing in order to travel west toward Geelong. This would mean crossing the east bound traffic lane to reach the west bound one. That is true for all of the many crossings along this highway. The Roads Corporation is the relevant authority, and it is not objected to this proposal. It has imposed a number of conditions including road works which are not resisted by the applicant. In the circumstances, we are not satisfied that traffic is a problem.

37 The suggestion that lights at the proposed caravan park will provide a light nuisance at night time is also exaggerated and unreasonable. The distances and topography indicate as much.

38 We do not accept that apprehensions about security on nearby farm properties would justify a refusal. Similarly, the suggested danger that children might injure themselves or drown themselves in dams do not seem to us to warrant refusal. Fencing, on site attractions and supervision tend those concerns. Little children cannot be allowed to run at large unsupervised, even on the caravan site, for fear they may be run down on the driveway or wander on to the highway. The highway and the swimming pool on site would be a much greater danger.

39 Late in the hearing it was suggested that the land should be tested for chemical contamination in case it has previously been used for potato growing occasioning such contamination. If it is true, as suggested, that potato growing has been widespread on the Peninsula, and that such contamination is relatively common, that might ordinarily be a good reason to impose a condition requiring such testing. However, in this case, we have clear enough evidence that satisfies us that this site is not contaminated and that such condition is not necessary in the circumstances.

40 It was suggested that this proposal is premature because this land will be re-zoned from Rural Zone into one of the new rural zones that have been created. Ms. Conroy, who is an experienced farmer and active in the Victorian Farmers Federation, informed us that she and others had been instrumental in avoiding an unconsidered translation of this land into one of the new zones. She and others had argued and insisted that such re-zoning should be considered before being implemented and people affected should have an opportunity to consider and to be heard in relation to these matters. It seems quite reasonable that these representations should have been successful. She did mention, perhaps a little wistfully, that the proposed translation might have resulted by now in a zoning that would prohibit the current proposal.

41 Be that as it may, work has been commenced to consider the future zoning of this area. However, that work is at a very early, indeed, embryonic, stage. Some preparatory work has been done, but has not been published or put on exhibition. It is not even yet clear what zoning might be suggested.

42 There would be every reason to avoid prejudicing a so-called "seriously entertained planning proposal" for the amendment of the planning scheme that is well advanced and based on sound planning. Such an approach is in accordance with orderly planning. However, in this case the draft work presently in hand is at a too early stage to warrant refusal of a proper proposal. The owners of land are entitled to have proposals considered on the basis that the planning scheme as it now stands in the absence of some good reason like an advanced and seriously proposed amendment containing provisions that would be undermined if the proposal was allowed to proceed.

43 Other arguments were advanced on the basis of so-called "precedent". In fact the doctrine of precedent, as it applies to legal questions in court, does not apply before the Tribunal. It was suggested that this proposal might encourage others, for example along the highway. In fact there are already a good number of non-farm activities along the highway.

44 In any event, the proper approach is to assess this proposal on its merits and grant permission if appropriate, rather than to refuse it because some other later proposal might be inappropriate. We must trust that the responsible authority or the Tribunal will refuse later inappropriate proposals if they were brought forward. In the meantime, they may never advanced and in any event do not justify the refusal of inappropriate applications.

45 We have considered the various objections raised in the grounds of refusal of the responsible authority and by or on behalf of the objectors. For the reasons we have given we do not find the objections to be substantiated in the circumstances of the present case. On the contrary, we consider that there is no good reason why this permit should not be granted. Indeed, there are reasons why it should. Our decision therefore is to grant the application for review and to grant a permit, subject to conditions.

46 Possible conditions were discussed in the course of the hearing on the basis of a set of draft conditions circulated on a "without prejudice" basis by the responsible authority in accordance with the directions of the Tribunal. The conditions we propose to impose are based on the draft, but in the light of the submissions that were made to us in the course of the hearing. Furthermore, where necessary or appropriate we have modified English expression and setting out to enhance the clarity of conditions.

47 It was suggested that 12 metres of trees should be provided in the landscaping on all boundaries. We consider that this is more than required in the circumstances of this case.

48 We consider that any plans endorsed under this permit should provide for the commonly provided "community and conference facility" located centrally near the reception area and will direct such be shown on the amended plans.

49 Conditions will be imposed prohibiting permanent residency on camping sites.

_________________ _______________________

RUSSELL BYARD NICK HADJIGEORGIOU

SENIOR MEMBER MEMBER

[1] Thomas v. Macedon Ranges SC [2005] VCAT 1713 (18 August 2005)