1 Mr Curr has lodged an Application under Section 77 of the Planning and Environment Act 1987 seeking review of a decision by the Wangaratta Rural City Council ("the Council") to refuse a permit for the subdivision of the subject land into two lots. Following referral of questions of law to a legally qualified member of the Tribunal for determination, and thereafter having considered the planning merits of the proposal, I have decided to affirm the decision made by the Responsible Authority for the reasons that follow.

2 At the commencement of the Hearing, one of the parties raised a preliminary question of law. That arose from the history of the land and a condition by the then Planning Appeals Board to issue a permit for the excision of a house lot from a larger title on the basis that the balance would be consolidated and that an agreement would be entered into under Section 52A of the Town and Country Planning Act 1961 preventing any further excision. The questions identified by the Council were:

a. If the condition on the Permit issued by the Planning Appeals Board was not fulfilled because a Section 52A agreement was not registered on title then does that invalidate the Permit?

b. If the Permit is invalid, and the excised lot should form part of the original title, then is permit application no. 05-122 for a three lot subdivision?

3 At the Hearing, both parties gave their consent to the Tribunal as constituted determining these questions. They also agreed for the merits to be heard and the question of law and merits to be decided concurrently. As the question was only raised on the day of the Hearing, I granted leave for supplementary submissions to be filed on the questions by 16 June 2006.

4 Those submissions were filed and in its submission the Applicant stated that it wished for the matter to be decided by a legally qualified member. I referred the Tribunal file and submissions to Deputy President Gibson. She referred the legal questions and submissions to Senior Member Byard for determination. His findings are included in Appendix 1 to these reasons. I record that the legal ruling was made by Mr Byard alone. It follows from his findings that the application before me is for a two lot subdivision.

5 The subject land is located on the west side of Wilson Road and straddles Bald Hills Road. The land area is approximately 42 hectares. Of that land, 27 hectares is on the north side of Bald Hills Road and 15 hectares is to the south of the same road. The land falls from west to east and enjoys expansive views to the east. The permit application is for a two lot subdivision and was put forward on the basis that a prospective purchaser of the 15 hectare lot would develop a dwelling and grow brambleberries. The dwelling would be constructed under Permit 04-159 that allows a dwelling on the land south of Bald Hills Road. The balance lot of 27 hectares would contain the existing dwelling and be used for grazing.

6 The surrounding area comprises a range of lot sizes including lots that appear to be less than 40 hectares in size. Some contain dwellings with hobby farming while other pursuits include grazing, cropping and a winery.

7 The detailed history relating to the land is set out in the submissions and is in part referred to by Senior Member Byard. For my purposes it is suffice to say at one time the land was in separate parcels divided by Bald Hills Road but later was consolidated as a condition of approval for the excision of a dwelling that is now in a separate small lot to the south-west corner of the proposed northern lot in the current case. At that time, an agreement was required to be entered into under a condition of the planning permit directed to be issued by the then Planning Appeals Board[1]. I understand that the excision of the dwelling into a separate lot and consolidation of the two balance lots into the 42 hectare property was completed but there is no evidence of an agreement being prepared or agreed with the Council. Mr Sheehan suggested that Permit 04-159 was issued by the Council on the understanding that the land on the south side of Bald Hills Road was within its own title as otherwise the permit application should have been for a second dwelling on the consolidated land parcel. This interpretation is contested by the Applicant. I do not intend exploring this matter.

8 The provisions of the Wangaratta Planning Scheme ("the Scheme") that are relevant to this review and have been considered by the Tribunal are:

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The Rural Zone wherein under Clause 35.01 a permit is required for subdivision or excision of a dwelling.

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Environmental Significance Overlay (Schedule 3) wherein a permit is required for subdivision. Clauses 42.01 and Schedule 3 are relevant.

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The policies set out in the State and Local Planning Policy Frameworks including Clauses 11, 15.01, 15.09, 17.05, and 19.01, Clause 21 (Municipal Strategic Statement) and Clause 22.04 (Small Lot Policy).

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The decision guidelines at Clause 65 (being decision guidelines relating to subdivision as well as general decision guidelines).

9 I was advised that Amendment C26 was adopted by the Council in June 2005. Its approval was said by Mr Sheehan to be imminent based on recent advice from the Department of Sustainability and Environment that Part 1 would be referred to the Minister for Planning for approval shortly. The Applicant contested any reliance on that Amendment. As relevant to these proceedings, the Amendment proposes to include the review site in a Farm Zone and to introduce Clauses 22.01-2 (Subdivision in Rural Areas) and 22.01-1 (Housing and Sheds in Rural Areas). Since the Hearing, at the time of preparing these reasons and finalising my order, I have checked the Department's web-site and the subject land is within a Rural Zone.

10 I have decided to affirm the decision made by the Council for the reasons that follow. In reaching my determination, I have considered all written and oral submissions presented by the parties with regard to the policies, objectives and decision guidelines of the Scheme. That has been assisted by my inspection of the subject land and locality. In setting out my reasons, I do not recite all of the submissions presented but I do refer to some of the main points made by the parties next. Before so doing, I add that Mr Standish made a number of comments about the injustice his client felt about the processing of the permit application and Council's decision-making. While I appreciate that the Applicant may have concerns about the process, this proceeding is not an administrative review of the Council's processing of the application. My reasons address the planning merits based on the matters to which I must have regard, and are required to consider, under the Scheme's provisions.

11 Mr Standish submitted that the locality is characterised by rural living properties, closely settled, with lots at 10 hectares and smaller. The proposal would reflect the surrounding rural living land use and be compatible with it.

12 Mr Standish said that the proposal should be treated as an excision of the existing dwelling on a 27 lot from the balance and noted that the land is fragmented by the road. He submitted that both lots could be used for rural living as well as for agricultural purposes and that the development of the lots as proposed would mean increased economic input to Wangaratta providing for people seeking a hobby farm and/or living opportunities outside town close to amenities but still offering the open space and potential for an intensive farming activity. He said that residential use is generally compatible with extensive pursuits such as grazing since there is no concentrated offensive odour, intensive spraying, noisy machinery etc. Mr Standish strongly disputed any relevance of Amendment C26 to the proceeding or decision-making on the basis that it "will not see the light of day" after criticism by an independent Panel.

13 Mr Standish submitted that the subject land is not large enough to be an economically viable farm but could support more intensive enterprises such as fruit and berry growing. I was advised that the couple who had sought to acquire the 15 hectare lot and use it for brambleberry farming had purchased another site close by. Although their business plan and associated material was relied upon by the Applicant, the Hearing proceeded on the basis being an example of an agricultural use to which the proposed 15 hectare lot could be put. Mr Standish said the subdivision would make little difference as the site is far too small to be independently economically viable. He conceded that it is most likely that the land would be used for hobby farming unless a future owner sought some type of production on the land which he also said was "unlikely"[2]. Mr Standish submitted that the proposed subdivision complies with the purpose of the Rural Zone and could result in revegetation and rehabilitation measures.

14 In response, the position advanced by the Council included that the land has been identified as having high to very high agricultural versatility in the Council's mapping that is included as a reference document in the Scheme. Mr Sheehan submitted that the proposal fails to safeguard this resource, the viability of the berry operation has not been proven, and the lots would be too small to support a viable enterprise as sought by Clause 22.04.

15 When one reviews the provisions of the Rural Zone and the applicable local policies, it is clear that the aim of State and local policy is to protect and avoid the fragmentation and loss of agricultural land, particularly high quality land, and to protect agricultural activities from uses that might impact negatively upon the ability to pursue those activities.

16 Moreover, it is expressly provided for in policy to encourage demand for rural residential subdivision to be met outside the Rural Zone.

17 The proposal may technically be the creation of two lots and/or a house lot excision (even though it would excise 27 hectares from a 42 hectare lot leaving 15 hectares). Being able to be described in either or both ways, it is relevant to consider the more detailed policies at Clause 22 relevant to each approach.

18 First I refer to the policies included in the Small Lot policy at Clause 22.04:

When considering an application for any subdivision, it is policy to:

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Discourage subdivision that is likely to lead to a concentration of small lots so as to change the general land use and character of the rural areas unless it can be shown that the clustering of lots will enhance the productive use of the land.

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Ensure that the new lots to be created can:

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either be capable of supporting a viable agricultural enterprise ;or

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have regard to the need to ensure the continued viability of adjacent and nearby agricultural activities and the likely amenity impacts of those activities.

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Require the applicant to enter into an agreement under section 173 of the Act to prevent further subdivision of the lot created if it appears to the responsible authority that the lot would not be capable of supporting a viable agricultural enterprise if further subdivided.

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Require the applicant to enter into an agreement under section 173 of the Act acknowledging the possible off site impacts from adjoining or nearby agricultural activities.

19 The policies relating to dwelling excisions include:

When considering an application for the "excision" of a lot containing a dwelling, it is policy to:

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ensure that the lot containing the dwelling can:

o either be capable of supporting a viable agricultural enterprise; or

o be of the minimum size and dimensions that are consistent with providing the future dwelling occupants with a reasonable standard of amenity, having regard to the need to ensure the continued viability of adjacent and nearby agricultural activities and the likely amenity impacts of those activities.

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ensure that the balance lot can be capable of supporting a viable agricultural enterprise.

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require the applicant to enter into an agreement under section 173 of the Act to prevent the further subdivision of any lot created, if it appears to the responsible authority that the lot would not be capable of supporting a viable agricultural enterprise if further subdivided.

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ensure that the proposed lot boundary for a dwelling to be excised that is currently unoccupied does not contain land within an urban water supply catchment or within 100 metres of a watercourse.

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ensure that the dwelling is reasonably accessible to community services and facilities.

20 I accept that the proposed lots can be serviced, can ensure that any development is not close to a watercourse, can allow a dwelling that suitably responds to the context could be developed and that traffic issues would not arise. Land management may, also, be able to be improved.

21 These are factors that lend support to the proposal. However, when assessed against the remaining decision guidelines at Clause 35.01 and local policies, and having regard to the existing pattern of development in proximity to the review site, I find that the proposed subdivision would contribute to a change to the general character of this rural area, and the opportunity to construct a dwelling on the excised lot would add to the pressure for this rural area to change by contributing to a rural living lifestyle character. That is at odds with, and undermines, the zone purpose and policies.

22 I accept that the berry operators are bona fide farmers and that there was a genuine interest in establishing a business on the lot to the south of Bald Hill Road. However, the size of the proposed lots restricts the ability to use those lots on a stand alone basis for productive agricultural pursuits. Put another way, the size of the proposed lots may not preclude some form of agricultural use but it significantly reduces the likelihood of a rural land use in a manner that would be consistent with the outcomes sought by the Scheme.

23 Moreover, I have difficulties with several of the arguments or contentions relied upon by Mr Standish upon which I comment as follows:

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I disagree with Mr Standish that residential use and extensive agriculture are generally compatible and without conflict. Indeed, at the Hearing his client referred to complaints about stock on roads made by an adjacent hobby farmer. These are the types of tensions that can arise when the expectations and desires of rural lifestyle dwellers and hobby farmers impact on bona fide farming operations. While I am sure that the Applicants appreciate the rural context, the future purchasers of the second lot may well not, as frequently occurs.

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The land is not on the fringe of Wangaratta or proximate to land zoned for rural living.

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The Council has nominated areas for rural living on appropriately and located zoned land and that is where hobby farming/rural living should occur. Approval of the proposal subdivision would contribute to the ad hoc, incremental, evolution of de facto hobby farms and rural living precincts contrary to the directions of the Scheme.

24 For these reasons, the Application for Review is not acceptable in terms of the provisions of the Wangaratta Planning Scheme.

25 Finally I observe that there is some history associated with the review site wherein the intent some years ago was to require the consolidation of the land when the excision of a dwelling was allowed. While that decision was taken by the previous Council some years ago, it seems to me that the policies in the current Scheme reinforce and strengthen the planning outcome being sought at that time. That is, to avoid both the further fragmentation of rural land and the unreasonable expectations smaller lot subdivisions bring in terms of higher land values, amenity and lifestyle qualities that can impede agricultural pursuits. The same themes would remain and be reinforced if Amendment C26 was introduced.

26 For the above reasons, I find that the proposal would not produce an acceptable outcome in terms of the applicable provisions and policies of the Wangaratta Planning Scheme. I will affirm the decision of the Responsible Authority and direct that no permit issue.

Legal Ruling by Senior Member Russell Byard (signed and dated 13 July 2006)

P3115/2005 - Robert Curr v. Wangaratta Rural City Council

1 I am asked for my opinion in relation to questions of law that arose in this case being heard by a Senior Member of the Tribunal who is a town planner but not a legal practitioner. The questions arose in relation to a proposed subdivision of rural land that had been the subject of an earlier subdivision. That earlier subdivision was the subject of an earlier planning appeal before the Planning Appeals Board (a predecessor of this tribunal as the planning tribunal in Victoria).

2 That previous case was Curr v. Shire of Wangaratta, appeal No. P86/1952 heard on 25 February 1987 with a determination dated 17 June 1987.

3 The proposal in that case was to subdivide land known as Lot 6 Bald Hill Road, Wangandary which was Lot 6 on Plan of Subdivision No. 116517. That land had an area of 27.19 hectares.

4 The proposal was to excise an area of two hectares. The land was in a rural D zone under the then applicable planning scheme and subject to a limit, in relation to subdivisions, that it should not be subdivided into allotments of less than 40 hectares. Of course, the proposal could not apply with that rule but the application sought to rely on certain exceptions.

5 It is clear that the responsible authority and the Tribunal in that case were concerned about the threat of the fragmentation of rural land, a threat that the 40 hectare minimum lot size for subdivisions sought to protect against.

6 However, the proposal not only contemplated the excision of a two hectare lot, but also the consolidation of the balance of the land, amounting to 25.19 hectares, with adjoining land having an area of 16.01 hectares to form a new consolidated parcel of 41.2 hectares. The Planning Appeals Board considered that the excision could be approved in the light of such consolidation, provided that no further subdivision was to occur. A permit was granted by the Planning Appeals Board subject to two conditions reading:

"1. Following the excision of approximately two hectares the balance of the land being Lot 6 on both sides of Bald Hill Road shall be consolidated with the adjacent land in Lot 5 north of the subject site.

2. The applicant shall enter into an agreement with the Responsible Authority pursuant to Section 52A of the Town and Country Planning Act 1961 whereby he would not seek any further excision from the ultimately consolidated allotment."

7 Section 52A of the Town and Country Planning Act 1961 was the equivalent, in that Act, of s.173 and subsequent sections in the current Planning and Environment Act 1987.

8 The intention of these conditions is clear enough. The means of achieving such intentions could, perhaps, have been improved upon.

9 Condition 1 should have specified more clearly the identity of "Lot 5" which was the 16.01 hectare area to be consolidated with the 25.19 balance of the review site after the 2 hectare excision subdivision had been achieved.

10 Furthermore, the consolidation being fundamental to the basis of the decision being granted, I think the requirement for such consolidation should have been included in the matters to be covered by the s.52A agreement required in condition 2. The condition should have specified that the agreement was to contain covenants by Mr. Curr to consolidate as well as not to further subdivide.

11 The responsible authority (then the Shire of Wangaratta) should then have seen to it that the s.173 Agreement was prepared, executed and enforced. It appears to have been very remiss in this respect, even in relation to the agreement that condition 2 did require. The subdivision should not have been allowed to proceed until the s.52A agreement had been made and executed. The council should have refused to grant a certificate of compliance under the Subdivision Act until that had been attended to. The subdivision could not have been registered without, and until, such a certificate was obtained.

12 The upshot, as I understand, has been that the subdivision excising the two hectares proceeded and the consolidation also proceeded. The result then was that a parcel of land originally constituted by two pieces of 27.19 hectares and 16.01 hectares respectively was affectively re-subdivided into two lots of 2 hectares and 41.2 hectares respectively. That much of the intention of the Planning Appeals Board was achieved.

13 The other matter is condition 2 of the permit and the s.52A agreement that it required. That has never been attended to, and no s.52A agreement exists to date.

14 The current proposal is to subdivide the 41.2 hectare holding into two allotments. That is contrary to the intention of condition 2 and the agreement it required.

15 It is in relation to this application and that background that the questions of law have arisen. They have been formulated in the following terms:

"1. If conditions on a planning permit issued by Council following a successful appeal through the then Planning Appeals Board (PAB) in 1987 were not subsequently fulfilled (i.e. condition relating to an agreement under S.52A of the then Town and Country Planning Act 1961 was not entered into) does this then invalidate that planning permit question?

2. If the answer to question 1 is yes (i.e. the permit is found to be invalid) then should the excised land (the house lot excised in 1987) also be regarded as part of the title (i.e. the land being the subject of the proposed subdivision now before VCAT) and is this permit application (Council Ref 05/122) to be regarded as a three lot subdivision?"

16 I think the first of these questions can be usefully simplified to the following:

Is the subdivision which created the two hectare allotment valid?

17 I assume that the subdivision that created the two hectare allotment went through the Titles Office, was registered there, and that a separate title issued from the Titles Office for the two hectare allotment. If those assumptions are correct, then the answer to my simplified question is "yes".

18 Having formulated the questions the Senior Member hearing the case gave directions for the parties to make written submissions in relation to them. Pursuant to these directions the responsible authority submitted a letter dated 15 June 2006. Subsequently an answering written submission dated 29 June 2006, and prepared by a barrister, was submitted on behalf of the applicant.

19 The first question, as originally drafted, focuses on the 1987 permit, rather than the subsequent subdivision. The submission of the responsible authority in relation to it is brief and equivocal. It merely submits that the permit "may not have been within the law" and

"if it was the intention of the Planning Appeals Board to prohibit any further subdivision by the imposition of an agreement under Section 52 (sic, 52A) of the Town and Country Planning Act 1961 and this agreement was not entered into, then the subdivision could be seen to have never been fully or properly executed."

20 It is clear that the prevention of further subdivision was the intention of the Planning Appeals Board and that the failure to enter the s.52A agreement with a contravention of condition 2 of the permit. To act on the permit by proceeding with the subdivision without complying with that condition was an offence, and may well be a continuing offence. It may well be that the applicants are susceptible to enforcement action or prosecution in the circumstances.

21 However, the real question is whether the subdivision itself, having been registered, is now valid. This is part of the principle of indefeasibility of land titles under the Transfer of Land Act 1958 as provided for in ss.41 and 42 of that Act. Whatever problems or contraventions there may be or may have been in relation to the permit, the subdivision cannot now be unmade.

22 As the subdivision, and its creation of the two hectare lot, cannot now be touched, the second question does not call for an answer. Furthermore, the current proposal is for subdivision into two lots of the 41.2 hectare consolidated land. The 2 hectare allotment created in the earlier subdivision is not involved.

23 The written submission by the barrister on behalf of the applicant asserted that the permit allowing the earlier subdivision is "spent" and that the conditions contained in it are also spent and now of no effect. On that basis he asserted that no question of the invalidity of the permit can now be entertained. As authority he cited the case of Cope v. Hobsons Bay CC [2004] VCAT 2487.

24 I am a little concerned that he should assert the proposition of the earlier permit being "spent" in such an unequivocal way, and that he should cite Cope's case as authority. Cope's case does not actually say that.

25 Cope's case does contemplate the possibility of there being conditions on a development permit that continue to have effect after the development is completed. It does question whether that applies if the development is a subdivision. It asserts that it has generally been thought that a subdivision permit is exhausted after the subdivision has become registered, even to the extent that conditions that might otherwise have a continuing life have themselves been exhausted. I came to a different view in Bayside CC v. Sullivan (2000) 5 VPR 276; [2000] VCAT 672. The members constituting the Tribunal in Cope's case expressed some doubt as to whether Sullivan's case is right in principle (however just in outcome). Apparently my earlier decision of Rosemeier v. Greater Geelong CC (No. 1) (1997) 22 AATR 86 at 98 was referred to. However, a careful reading of the relevant passage in Rosemeier does not, I think, say that a subdivision permit and all its conditions are necessarily exhausted or "spent" once the subdivision has been registered. The subdivision itself, with whatever oversights or omissions it might contain has become inviolate.

There is no doubt of that. As to whether any unfulfilled conditions have necessarily been exhausted or spent, Cope's case does no more than offer what lawyers call obiter dicta, that is an observation on a question of law that expresses an opinion by the way but which is not intended to be, and is not, a binding precedent. As to that the Tribunal in Cope's case said at paragraph [47] -

"It is not necessary to fully decide the matter in this case but, like the President in Whelan v. Baw Baw Shire Council (P2793/2004, 5 November 2004) we tend to the view that once a subdivision is carried out the permit allowing it, including any conditions, is spent."

26 Whether or not the view that the Tribunal tendered to on that point in Cope is ultimately found to be correct, it is not right, at this stage to simply quote it as authority for a proposition that the Tribunal in Cope's case did not commit itself to.

27 In its written submission in relation to the question of law the responsible authority went off onto some discussion of a subsequent permit for a house on part of a consolidated land being permit 04-159 issued 6 July 2004. Apparently the responsible authority has obtained legal advice in relation to that permit to the affect that it should seek to have it cancelled. The responsible authority has not taken steps, at this stage, to have that permit cancelled. It is said that this is because of considerations of natural justice and because it is awaiting the outcome of this present case. Neither appear to me to be proper justifications for delay. In particular, I cannot see that questions of natural justice arise. It would be more just, if such proceedings are to be brought in accordance with the advice received by the responsible authority, for the proceeding to be got underway without delay. In any event, I think the barrister for the applicant is correct in saying that the discussion of that permit is beside the point, so far as the questions of law referred to me for opinion are concerned.

28 I have already dealt with the essential question in saying yes, the earlier subdivision is valid.

[1] Appeal No. 86/1952. This permit applicant is the same as the current proceeding.

[2] Paragraph 34, when addressing the decision guidelines "Support sustainable use of land for intensive agricultural production".