In addition, the coexistence of small lots adjoining viticulture may result in land use conflict between subsequent owners. Therefore, this proposal may result in an undesirable planning outcome.

1. It would seem that the council officers and council received substantial caution about the issuance of a permit for this subdivision but chose to disregard or give this advice little weight.

1. During the hearing Mr Costa and Mr Vorcheimer referred to a number of previous VCAT decisions and more particularly the Cufari decision[4] by Senior Member Liston, Member Cimino's decisions, particularly P2476/2006 and my decisions in September 2007[5].
2. Mr Costa referred to a recent permit issued for a two lot subdivision at 636 Cureton Avenue, Nichols Point which essentially overturned Member Cimino's decision. This delegation report addressed the above decisions and alerted the council to the difficulties with Amendment C30 and the officer stated at page 7 of the report

However the new Rural Areas Policy has been adopted by council as part of Amendment C30 since Member Cimino's decision. The new Rural Areas Policy discourages the creation of small lots in farming areas, but encourages the creation of large agricultural lots and acknowledges that the creation of rural residential lots may be justified.

Member Cimino's decision on the previous application is acknowledged, however Amendment C30 has now been adopted and represents council's current position on issues relating to rural subdivision. Since the refusal by V CAT of the same proposal, council has consistently approved similar applications since the adoption of Amendment C30 of 5 July 2007.

1. The Tribunal must consider the planning scheme and provisions[6] contained in the planning scheme at the time it makes its decision[7]. The Tribunal may if the circumstances appear to require, consider the provisions of Amendment C30[8]. However to do that it must be satisfied that there is a good chance the Amendment will be adopted in the form adopted by the council. Usually a good indicator is if it has been through a rigorous exhibition process and has been the subject of review by an independent body. Unfortunately, this amendment has flaws that have been identified by two tribunal members and it has not been subjected to independent scrutiny, nor has it been forwarded to the Department of Planning and Community Development or the Minister for proper assessment.
2. Unfortunately, the council's current approach, including placing the Amendment on hold is sending mixed messages to applicants, the farming community, planning authorities and VCAT and this is unhelpful for Tribunal Member when attempting to apportion weight to be given to this proposed amendment.

1. For the above mentioned reasons the Responsible Authority's decision is affirmed. It is directed that permit no. 07/032 must contain condition 1(a).

[1] Pursuant to Section 80 of the Planning and Environment Act

[2] Clause 17.05, 21.01-3, 21.02-2, 21.03-1, 21.04-4, 22.06 Agricultural Uses policy.

[3] Roy Costa and Associates v Mildura CC (2007) VCAT 206 at page 7 and 8

[4] Cufari v Mildura Rural CC (red dot) (2005) VCAT 1979

[5] Roy Costa and Associates v Mildura Rural CC (2007) VCAT 2106