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: