SUBJECT LAND: PS 94513 Parish of Briagolong, Boundary Road, Briagolong

MEDIUM NEUTRAL CITATION: [2003] VCAT 353

The decision of the responsible authority is varied. A permit is granted and directed to be issued for the land at PS 94513 Parish of Briagolong, Boundary Road, Briagolong

Use of the land for the purpose of a Host Farm and to construct buildings and works associated with the use (dwelling), in accordance with the endorsed plans.

The permit must contain the conditions set out in the responsible authority's notice of decision to grant a permit issued on 14 August, 2002, except that

7. The existing dwelling must only be used to accommodate up to six (6) guests associated with the use of the land as a host farm.

8. Prior to the commencement of the use the land owner must enter into an agreement under Section 173 of the Planning and Environment Act 1987, which must ensure that the land must not be further subdivided so as to increase the number of lots. The agreement must be registered on title and all costs associated with the preparation and registration of the agreement must be borne by the land owner.

Mr M Dawkins, the Applicant for Review, appeared on his own behalf.

Mr D Singh, town planner, appeared on behalf of the Responsible Authority.

1. This is an Application under Section 82 of the Planning and Environment Act 1987 ("The Act") brought by Mr M Dawkins to review a decision by the Wellington Shire Council ("The Council") to grant a permit in application no.P2814/2002 .

2. At the commencement of the hearing and pursuant to Clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998, Mr Singh requested the Tribunal to amend the application for permit by substituting the term "Host Farm" for the term "Bed and Breakfast", which had originally been used to describe the proposed use. The land use term Bed and Breakfast is defined in the Wellington Planning scheme in the following terms;

Bed and breakfast: A dwelling used, by a resident of the dwelling, to provide accommodation for persons away from their normal place of residence.

Host farm: A farm used to provide accommodation for persons, away from their normal place of residence, to experience farm living.

4. Notice of the Council's intention to seek an amendment to the application had been forwarded to all parties under the cover of a letter dated 28 October, 2002.

5. Mr Dawkins objected to the proposed amendment. Mr Dawkins objection was based on his concern that notice of the application had been given for a use described as a "Bed and Breakfast", that his objection was based on that description of the use and the Council had assessed the application accordingly. It was Mr Dawkins submission that the he would be disadvantaged by now having the basis of the application changed at this late stage.

6. Being of the opinion that the amendment to the application was appropriate, I made the amendment in the manner requested. I provided oral reasons for my decision at the hearing, and the following is a summary of those reasons;

7. Clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998, provides the Tribunal with the power to amend an application as it sees fit. The relevant clause states that;

(1) This clause applies to the following proceedings--

(a) a proceeding for review of a decision under the Planning and Environment Act 1987 of a responsible authority in respect of an application for a permit or the failure of a responsible authority to grant a permit;

(2) At any time in a proceeding to which this clause applies the Tribunal may make any amendment it thinks fit to the application for the permit, works approval or licence the subject of the proceeding.

(3) Without limiting the generality of sub-clause (2), the Tribunal may make an amendment to an application for a permit under the Planning and Environment Act 1987--

(a) as to a use or development different from the use or development mentioned in the application;

(b) as to the land to the use or development of which the application relates.

(4) This clause is in addition to, and does not limit or affect section 127.

8. I am prepared to amend the application to describe the proposed use as a "Host Farm" as defined in the Wellington Planning Scheme for the following reasons;

(b) is not bound by the rules of evidence or any practices or procedures applicable to courts of record, except to the extent that it adopts those rules, practices or procedures;

(c) may inform itself on any matter as it sees fit;

(d) must conduct each proceeding with as little formality and technicality, and determine each proceeding with as much speed, as the requirements of this Act and the enabling enactment and a proper consideration of the matters before it permit. (My emphasis)

b) In my view no party will be disadvantaged as a consequence of the amendment of the application because, notwithstanding the differences between the two definitions, all parties were aware of the nature of the proposed use i.e., the construction of a second dwelling on the land and the use of the existing dwelling for accommodation by paying guests. The nature of the proposed use as applied for and as reflected in the notice of the application, and as I've just described it, does not change as a consequence of the amendment to the application from "bed and breakfast" to "host farm". I think the host farm definition more accurately reflects what is actually proposed.

c) Mr Dawkins in making his objection to the amendment application, raised some issues relating to whether the land is currently being used as a farm and is capable of being used as a farm. These are matters which may be relevant to a consideration of the merits of the application, and Mr Dawkins will not be prevented from making further submissions on those points.

d) Finally, it is important to recognise that the proceedings before the Tribunal are a rehearing of the original application and the Tribunal has all the functions of the original decision maker, together with any other functions conferred on it by the enabling legislation. In rehearing the matter, the Tribunal is not limited to the evidence and material before the responsible authority and undertakes a fresh consideration of the matter and makes its own decision on the application.

9. It is proposed to construct a dwelling on the land and to use an existing dwelling to accommodate up to six people as paying guests as part of a host farm operation.

10. The dwelling which is to be constructed is proposed to be occupied by the permit applicant.

11. I find the following description of the site and locality, taken from Mr Singh's written submission, to be appropriate:

The subject land is located in the eastern fringe of Briagolong, which is approximately 3.5 kilometres(Lot 4, Plan of Subdivision 94513, Boundary Road Briagolong) from the central area. The site is within 38 metres from land zoned for Rural Living purposes. The site has direct access to Boundary Road, which leads into Briagolong.

The land is not irrigated. The area is predominantly used for grazing sheep and the adjoining lot owner on the western boundary has horses on the property. There are lots Zoned Rural Living Zone 3 towards the eastern boundary. Most lots have site areas more than 30 hectares. Some lots have dwellings on them. Most of the adjacent lots have lot sizes greater than the 25 hectares, which requires a planning permit for a construction of a dwelling (up to 40 ha).

The subject site has an area of 30 hectares. The site has a dwelling and storage sheds. The site has an existing access off Boundary Road. There are two (2) dams and the land is used as grazing land and currently there are cattle on the land. The area around the dwelling is landscaped with 3-metre high trees.

12. The review site is zoned Rural under the Wellington Planning Scheme. The purpose of the zone is;

To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

To provide for the sustainable use of land for Extensive animal husbandry (including dairying and grazing) and Crop raising (including Horticulture and Timber production).

_ Protection and creation of an effective rural infrastructure and land resource.

_ Improvement of existing agricultural techniques.

_ Protection and enhancement of the bio-diversity of the area.

_ Value adding to agricultural products at source.

_ Promotion of economic development compatible with rural activities.

_ Development of new sustainable rural enterprises.

To ensure that subdivision promotes effective land management practices and infrastructure

13. A Host Farm is a section 2, permit required use in the zone. A permit is also required pursuant to Clause 35.01-3 to construct a building or construct or carry out works associated with a section 2 use.

14. Decision Guidelines for the consideration of planning permit applications for the use, subdivision or development of land in the Rural zone are included at Clause 35.01-6. General Decision Guidelines are included at Clause 65.

15. The relevant policy framework is contained in the following clauses;

16. The State Planning Policy Framework (SPPF) of the planning scheme contains strategic issues of State importance which must be considered when decisions are made on applications for planning permits. Clause 17.05 of the State Planning Policy Framework is directly relevant to the consideration of this application. The objective of the clause is:

" To ensure that the state's agricultural base is protected from the unplanned loss of high quality productive agricultural land due to permanent changes of land use and to enable protection of productive farm land which is of high quality and strategic significance in the local or regional context."

17. Clause 17.05 provides broad policy support for the protection of productive agricultural land and for the encouragement of sustainable agricultural land use and practices. Under the heading General Implementation at clause 17.05-2 it is stated that the following factors must be considered by a Responsible Authority (and on review this Tribunal) in considering a proposal to subdivide or develop agricultural land:

"* The desirability and impacts of removing the land from primary production, given its agricultural quality and productivity.

* The impacts of the proposed subdivision or development on the continuation of primary production on adjacent land, with particular regard to land values and to the viability of infrastructure for such production.

* The compatibility between the proposed or likely development and the existing uses of the surrounding land.

18. The Local Planning Policy Framework (LPPF) identifies long term directions about land use and development in the municipality and provides the rationale for the zone and overlay requirements. In broad terms the LPPF seeks to reinforce the role of agricultural activities in the municipality's economic base and to protect agricultural areas from the intrusion of inappropriate, non agricultural uses, and to prevent the permanent loss of agricultural land to other, non agricultural uses.

19. Both the SPPF and the LPPF however, also seek to encourage tourism development as a means of diversifying the municipality's economic base. In recognition of the potential conflicts which may arise between the promotion of agricultural and tourism related uses, the Council's policy at clause 22.02 seeks to establish a policy framework within which applications for tourism related uses in rural areas need to be considered. The policy states;

* Rural areas play an important role in providing recreation and tourism opportunities within the Shire. The scenic landscapes of the Shire's rural areas should be protected and enhanced through the responsible application of controls over building materials, retention of native vegetation and promotion of revegetation.

* Rural based tourist activities should be promoted and encouraged. However, such activities should occur in a manner which does not adversely impact upon legitimate agricultural activities and should not lead to fragmentation of high quality agricultural and or cause adverse impacts on the Shire's natural resources.

Council Consideration and the Application for Review

20. The application was received by the Council in May, 2002. Notice of the application was required to be given and one objection was received. Mr Singh provided the following summary of the main grounds of objection;

* Development inconsistent with the Briagalong Strategy

* Adverse impact on existing legitimate agricultural activity.

* Proposed use and development not compatible with surrounding agricultural activity

* Justification of use and development in a rural zone and to a main road.

* Loss of amenity and impact on quality of life.

21. A Notice of Decision too Grant a Permit was issued by the Council on 14 August, 2002. An Application to Review the Council's decision was subsequently commenced by the objector on grounds which largely reiterated the grounds of objection outlined above.

22. At the review hearing all parties tabled and read from written submission or made oral submissions.

23. Various plans, photographs and other documents were tendered, either as attachments to written submissions and reports, or as separate items. The material submitted in documentary form, together with the written submissions, have been retained on the Tribunal's file.

24. I inspected the land and locality following the hearing.

25. There are in my view two principal issues which require my consideration in this matter. The first is whether the proposal achieves an acceptable outcome having regard to the applicable policy framework, and in particular whether the proposed use and development is compatible with the planning scheme's policy framework concerning the protection of agricultural land and the encouragement given to tourist related uses.

26. The second issue concerns the impact of the proposal on the amenity and viability of the objector's property which adjoins the review site. I will deal with each issue in turn.

27. In forming my view that the proposal does achieve an acceptable outcome with respect to the policy framework, I am influenced by the fact that the proposal does not contribute to a permanent loss of agricultural land, it does not contribute to a fragmentation of rural land ownership and it does not involve the conversion of land currently used for agricultural purposes to a non agricultural use. In my view, the type of use proposed here is entirely consistent with the outcomes sought to be achieved by the planning scheme because it is a use which provides for the introduction of a tourist related use (albeit at a very small scale) which is largely dependant upon the continuation of the agricultural use of the land.

28. I note Mr Dawkins submission regarding the current, low intensity use of the land and I agree that, based on my site visit, the site is under utilised and its infrastructure is in need of upgrading. I am satisfied however, that the proposal represents an opportunity through which this can be achieved and I think that that is an outcome which the provisions of the LPPF in particular, is seeking to achieve through the encouragement given to the diversification of land uses in rural areas through tourist related uses.

29. The second issue has a relationship to the policy issues I have discussed above, in that the Council's encouragement given to tourist related uses is not unconditional. Indeed, I think the planning scheme makes it very clear that such uses should only be supported where it can be demonstrated that agricultural uses will not be prejudiced as a consequence.

30. I am satisfied that the proposed use will have no unreasonable impact on either Mr Dawkin's amenity or the operational aspects of his property. In terms of amenity issues, the dwelling which is proposed to be used to accommodate the host farm guests is located approximately 70 metres from the common boundary of the two properties, and between 150 and 200 metres from Mr Dawkin's dwelling. It was Mr Dawkin's submission that host farm guests will disturb his amenity through the generation of noise and by general activity. Having regard to the separation between the dwellings and to the fact that the dwelling to be used for the host farm is an existing dwelling, I do not think that Mr Dawkin's objections on these grounds can be sustained. I do not agree that short term guests to the host farm are any more likely to cause a disturbance of the type and magnitude feared by Mr Dawkins, than are permanent residents.

31. On the basis of Mr Dawkin's submission, it would appear that his primary concern regarding this proposal is that guests to the host farm will endanger the well being of his livestock by intruding onto his property or by seeking to feed his horses when they are grazing in the paddock adjoining the host farm. These concerns are capable of being ameliorated by the imposition of permit conditions requiring the landscaping of the common boundary and the placement of signs on the fence advising guests "not to feed the animals". Conditions to this effect have been imposed by the Council on the Notice of Decision, and I think they are entirely appropriate.

32. Mr Dawkins also expressed concern that the erection of the second dwelling will lead inevitably to the subdivision of the land, an outcome which would be subject to the grant of a permit, but which would also be contrary to the planning scheme provisions which seek to prevent the fragmentation of rural lots. I acknowledge Mr Dawkins concerns in this respect but I note Mr Singh's submission that the intent of condition 8 of the Notice of Decision is to impose a restriction on the future subdivision potential of the land. As I indicated at the hearing, the wording of that condition does not achieve the intended outcome and I have directed that the condition be reworded accordingly.

33. It follows from the above that the decision of the responsible authority is varied and that a permit is directed to be issued in accordance with the attached Order.