Ms T Heber. Ms Foley called evidence from Mr L Trickey, Town Planner.

Mr A Sherman, Lawyer. Mr Sherman called evidence from Mr T Ludeman, Town Planner.

Mr P Chiappi of Counsel, instructed by M Beazley of Deacons. Mr Chiappi called evidence from:

1 John MacPherson has applied for a permit to use and develop part of a rural landholding on the Murray Valley Highway between Yarrawonga and Bundalong, abutting Lake Mulwala, for Group Accommodation comprising 350 cabin sites and related works. We were advised that it is also intended to develop a community hub such as a kiosk/take away food premises, small gym, and swimming pool in a separate permit application.

2 Moira Shire Council issued a Notice of Decision to Grant a Permit for "Group accommodation and associated building and works" subject to various conditions, despite the Department of Sustainability and Environment, Council's own council planners and other objectors opposing the proposal.

3 This matter concerns two applications for review against the decision. The Department of Sustainability and Environment and R & M Montrose, lodged applications for review[1] against the decision. John MacPherson lodged an application for review concerning conditions 3, 4(a) and 4(c) in the Notice[2].

4 The Department of Sustainability and Environment argued that the Group Accommodation proposal is:

a. Not a use that is consistent with the sustainable use of land for agricultural purposes.

b. Is inconsistent with the objective of the Rural Zone.

c. Is strongly discouraged by the preponderance of the state and local planning policy.

5 The Department also raised concerns about the scale and intensity of the development and consider it more appropriate to locate the development within a township boundary where there is access to a broad range of urban services and facilities.

6 The Montrose Family does not object to the review property being developed to accommodate a use other than agriculture. They expressed concern about the scale and intensity of the proposed development and about the impact of the proposed development on the corridor and the impression that the character of the area will change substantially. The Montrose's sought:

•

A reduction in the size of the development from 350 accommodation dwellings to 200;

•

An increase in the buffer along the eastern boundary to at least 20 metres and planted with native vegetation;

•

An upgrade of Majors Lane and further review of service sheds, entrance, methods of collection of rubbish, details of clothes drying and car parking and boat parking treatment

7 The principal issue in this application relates to the appropriateness, or otherwise of this tourist related facility in the strategic context of the site and in particular:

•

whether the group accommodation meets the objectives of State and Local planning policy; and

•

whether the group accommodation promotes the purposes of the Rural Zone.

8 There are other considerations which need to be assessed in the event we find in favour of the strategic justification for this site as a tourist resort. These relate to the design and siting of buildings, waste water, water treatment, traffic, infrastructure issues and amenity issues associated with the proposed use and development.

9 It is proposed to use about 20 hectares of a 60 hectare rural land holding for group accommodation which includes 350 dwelling sites with associated manager's residence, administration office, lagoon and infrastructure works. More particularly, the proposal comprises:

•

105 one bedroom dwelling sites;

•

175 two bedroom dwelling sites;

•

70 three bedroom dwelling sites,

•

407 car parking spaces including boat trailer parking facilities;

•

Various internal local roads;

•

Extensive landscaping;

•

Manager's residence and an administration office;

•

Tennis courts/basketball courts, mini golf pitch and putt, an oval, bicycle and pedestrian track;

•

A lagoon, beach and wetlands;

•

Information centre;

•

Barbecue and lawn facilities.

10 We were told that the use will be developed in two stages with Stage 1 comprising 250 dwelling sites and a community hub comprising kiosk, small gym and pool which will be subject to a separate planning application together with water treatment and waste water treatment infrastructure. Stage 2 will comprise development of the remaining 100 dwelling sites.

11 Whilst plans and elevations of the standard footprint of dwellings were provided, this application is confined to the proposed group accommodation use, various site works for the 350 cabins, road layouts, the lagoon and related infrastructure. It does not relate to the placement of prefabricated cabins which we understand are to be of the movable kind. Nor does it include the community hub buildings. Thus, we are only considering part of the proposal under Stage 1.

12 During the hearing the applicant provided further information on the likely location of a waste water storage and treatment plant to the south of the group accommodation facility and water treatment plant to the east of the development site which is within the overall site.

13 Access to the site will be from the Murray Valley Highway and there will also be secondary vehicle access, particularly for car and boat access to Majors Lane to the east.

14 It is intended to have a 50 metre landscape setback along the Murray Valley Highway and other extensive planting along the western boundary of the site. It is intended to have a 50 metre setback from the site boundary along the north and therefore the Lake Mulwala abuttal.

15 We were also told there will be public access to a number of the tourist facilities within the site.

16 The development site comprises the eastern 20 hectares of a 60 hectare rural land holding at the corner of Murray Valley Highway and Majors Lane, close to Bundalong. It is located on the northern side of the Murray Valley Highway about 10km east of Yarrawonga and 4km west of Bundalong. The land has partial abuttals to Lake Mulwala and a public boat ramp with related car and trailer park with access from Majors Lane.

17 Bundalong is a small rural township. Signage into the town indicates that it is has a population of 265 residents which we infer to mean its permanent population.

18 The site has a frontage of about 300 metres to the Murray Valley Highway and a sideage to Majors Lane of about 475 metres. Most of the site is predominantly flat and it falls slightly southwards away from Lake Mulwala towards Murray Valley Highway.

19 Views of the Lake are not immediately apparent from the Murray Valley Highway, although they are more apparent at the northern most section of the development site. Views in other directions are characterised by open rural landscape.

20 The entire site is currently used for agricultural purposes, with the development site being sown to crop. It is owned by the MacPherson family which has other agricultural landholdings nearby, predominantly to the south of the Murray Valley Highway.

21 Land to the south, west and east of the review site is owned by the Montrose Family. Their landholdings comprise about 400 hectares on both sides of the Murray Valley Highway and these are used for agricultural activities including cropping of wheat, lucerne, triticale, canola and also sheep farming.

22 The Murray Valley Highway is a sealed two-lane highway providing access between the Hume Highway near Wodonga and Echuca to the west. Majors Lane is an unsealed rural road and provides access to a single lane boat ramp and sealed carpark abutting Lake Mulwala.

23 The site and surrounds form part of the Woodlands to Bundalong Corridor. This corridor stretches between Buchanans Road in the west to Andrew Court in the east.

24 The subject site is zoned Rural under the Moira Planning Scheme. Group Accommodation is a Section 2 - permit required use under Clause 35.01-1. Approval would also be required for the building and works associated with this use under Clause 35.01-3. Clause 35.01-6 provides decision guidelines to guide the exercise of discretion.

25 Surrounding land is also within a Rural Zone, including land on the opposite side of the Highway.

26 The Murray Valley Highway is in a Road Zone Category 1. A planning permit is also required to create or alter vehicle access to the Highway under Clause 52.29. Applications require referral to Vic Roads. This has been done and this authority has no objections to the proposal subject to conditions.

27 A small portion of the site is within the Rural Floodway Overlay (RFO). It appears that no buildings or works are proposed in this area of the property.

28 An area of land parallel to the site's northern boundary is within the Land Subject to Inundation Overlay - Schedule 1 "Lake Mulwala Surrounds" (LSIO1) but as no works are proposed in this area no permission is required. The objectives of this Overlay seek to recognise and ensure the protection of the significant landscapes, recreational opportunities and water quality of Lake Mulwala.

29 The site or part of the site amounting to a distance up to 114 metres from the shores of Lake Mulwala is located within a Significant Landscape Overlay - Schedule 1 "Lake Mulwala Surrounds" (SLO1). A permit is required under Clause 42.03-2 to construct buildings and works in the overlay area. The relevant purpose of this overlay is to conserve and enhance the character of significant landscapes.

30 A range of State Planning Policies are relevant to this application for review. For the sake of brevity these are listed below and include:

•

Clause 11.03 Principles of land use and development planning

•

Clause 14 Settlement

•

Clause 15.01 Protection of catchments, waterways and groundwater

•

Clause 15.02 Floodplain management

•

Clause 15.05 Noise abatement

•

Clause 15.09 Conservation of flora and fauna

•

Clause 17.04 Tourism

•

Clause 17.05 Agriculture

31 Pertinent to this application for review are Council's various strategies for the municipality, particularly in regard to the area of the review site. These are principally contained at the following sections of the Local Planning Policy Framework:

•

Clause 21.01 Municipal Overview

•

Clause 21.02 Vision for Moira

•

Clause 21.03 Environment

•

Clause 21.04 Settlement

•

Clause 21.05 Economic Development

•

Clause 22.02 Housing in Rural Areas Policy

32 By way of summary, the Council policies support both agriculture and tourism as key drivers of the local economy. The Environment section of Clause 21.01 states:

The Shire is located on the alluvial floodplains of the Murray, Goulburn and Ovens Rivers. The natural systems of these rivers are the core natural assets of the Shire providing fertile farming land, a desirable tourist attraction and important habitat for native species and ecosystem services.

33 However, there is an overriding direction of protecting the natural assets and environment of the municipality, including the Murray River and Lake Mulwala.

34 There are various Settlement Objectives in Clause 21.04-3 including: promotion of future development in key townships of Numurkah, Nathalia, Cobram and Yarrawonga in accordance with the Settlement Strategies and Town Structure Plans.

35 The Yarrawonga Strategy Plan 2004 is a document that is referred to under Clause 21.04-3 of the planning scheme. We will discuss its contents in more detail shortly.

36 The responsible authority has undertaken a Lake Mulwala Land and On Water Management Issues Paper 2002. This work is now being completed and a copy of the report was provided to the Tribunal.

37 The Council has also prepared the Woodlands to Bundalong Issues Paper. It has been the subject of some consultation with the community and authorities who provided input on the challenges facing the subject area.

38 In the week preceding the review hearing the Council Officers had prepared the Woodlands to Bundalong Strategy which is still in draft form. It continues the work undertaken in the Issues Paper. We were told at the hearing that planning staff are in the final stages of presenting the draft Strategy to the Council for further consideration and for subsequent public exhibition. It contains recommendations for the formulation of or future planning controls and policies for this corridor. A summary of its recommendations include:[3]

•

Extend the Significant Landscape Overlay the full length of the foreshore area.

•

Prepare a restructure plan for the township of Bathumi with a minimum lot size of 4000 square metres to allow for the effective treatment of septic waste disposal.

•

Amend the Local Planning Policy Framework of the Planning Scheme to introduce the vision and objectives for the study area as described in sections 12 and 13 of this document.

•

Introduce a Design and Development Overlay into the Planning Scheme to guide the design and built form of new development in the corridor.

•

In conjunction with Goulburn Murray Water prepare a foreshore master plan for the Lake Mulwala foreshore.

•

Rezone land in the corridor to either Rural Living Zone or Rural Activity Zone.

39 On the issue of a future zone, we understand that in the case of the review site, a Rural Activity Zone is preferred. The Strategy also recommends using this zone along much of the corridor east of Mc Coll Street.

40 Each party tabled and read from detailed written submissions and made oral commentary. All witnesses were available for cross-examination. We were provided with a substantial amount of background material, photographs of the subject site and locality and other VCAT decisions[4].

41 Following the review hearing we undertook an inspection of the subject site, the boat ramp at the end of Majors Lane and the general locality and we travelled between Yarrawonga and Bundalong.

42 We acknowledge that the responsible authority is not obliged to adopt recommendations provided by its professional staff. It may choose to adopt a different course as it did in this case. However, we consider it is worth remarking that the Department of Sustainability and Environment, that is, the State Government authority charged with implementing government planning and environmental initiatives, provided firm and unambiguous advice to the responsible authority about the pitfalls of approving a development in the current strategic planning context. It is apparent that Council's Planning Department also acknowledged these pitfalls and recommended rejection accordingly.

43 In recommending refusal of the proposal, we note for example the following comments made in the officer's report to Council:

It has been concluded that this development is premature in that there is no strategic basis to support it, albeit that a strategy is currently being prepared, further, it doesn't promote the current zoning of the land amidst the pending conversion to the new Farming Zone by the Minister.

At this stage it is difficult to support the proposed development.

Any favourable decision on this proposed development would be made without any specific strategic planning foundation, thus the orderly planning of the area may be compromised.

44 We agree with the sentiments expressed by Council's professional planning staff for reasons that we will now explain.

45 The Council has recognised there is a strategic planning issue in the Murray Valley Highway corridor between Yarrawonga and Bathumi or between Yarrawonga and Bundalong, depending on which report is read. The Council has prepared a Woodlands to Bundalong Profile[5] which described the area as follows:

"....this relatively undeveloped area along the Murray Valley Highway is problematic in that most of the land on the northern side of the highway is zoned Rural, is covered by the Significant Landscape Overlay, is too small for agricultural pursuits to be economically viable and is valued due to its northern boundary being the foreshore of Lake Mulwala."

46 The Municipal Strategic Statement and the more recent Yarrawonga Strategy also identify the need for further strategic work in the corridor.

47 To a town planner it is not difficult to discern some regrettable planning decisions and consequential development that has taken place in the past along the Murray Valley Highway corridor, particularly between Yarrawonga and Bathumi. Some of these obvious examples of poor planning include isolated tourist establishments set in amongst farming land with little or no supporting infrastructure, inappropriate linear subdivision and consequential residential development which has cut off primary access and/or views of Lake Mulwala and consequential marginalisation of rural land holdings. We are mindful not to repeat or exacerbate previous poor planning decisions.

48 We can see that there is opportunity to exploit some of the advantages of the subject site for tourist accommodation. These include good access to The Murray Valley Highway, proximity to a boat ramp, a secondary road access and proximity to Lake Mulwala. On the other hand there is no strategic direction within the Moira Planning scheme which identifies this site for a tourist or residential facility. This site is located 10 km east of the main regional town, it will have to develop its own infrastructure, including water treatment and waste water treatment, shop/takeaway foods, recreation and related entertainment facilities. Substantial landscaping works would need to be undertaken within the site and possibly abutting the Lake to make it suitable for a tourist facility. Whilst it has direct access to the Lake, views of the lake are limited due to the fall of most of the land away from the lake.

49 Clause 11 of the Moira Planning Scheme directs planning and responsible authorities to endeavour to integrate the range of policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit and sustainable development. In this case we are called on to balance conflicting state and local planning policies and the purposes of the rural zone against the more generalised tourism policies in the planning scheme. We acknowledge there are some competitive advantages of this site but we are not convinced that they outweigh other local policies directed at agriculture or the purposes of the rural zone.

50 In this context we consider the responsible authority has not given sufficient weight to its own policies and it seems to have taken a quantum leap in supporting this group accommodation project without adequate strategic justification. We also consider, having regard to purposes of the Rural zone and the general thrust of State and local planning policy that seek to protect the agricultural land resource, that this project is inappropriate in the form presented.

51 In addition, there were matters raised about the proposal during the hearing that demonstrated the responsible authority and the applicant had not adequately examined the full extent of the application. This includes the belated information about staging of the proposal, the lack of detail about the location of the water treatment plant, the location and extent of facilities for the waste water treatment, the confused manner in which some matters listed in stage 1 were not contained in the application, whilst other detailed information about the cabins were shown, but excluded from our consideration. We were left wondering why some detail was left out of the first stage when the evidence suggested that items such as the community hub buildings and shop were critical components of this stage.

52 We acknowledge that the site presents a number of opportunities which may outweigh the desirability of using this land in the long term for agricultural purposes. However any decision on the replacement of farming land with a substantial residential/ tourism project comprising 350 dwellings in an isolated position away from a town should be assessed in a comprehensive manner. It would be prudent to undertake an assessment of:

•

The future strategic and statutory framework for the Murray Valley Highway corridor.

•

The true tourism opportunities of this corridor, or parts of the corridor having regard to:

o the site's proximity to Lake Mulwala;

o boating facilities and opportunity to increase these;

o resource implications, including access to potable water;

o extent of opportunities on other sites for tourism projects;

o access issues;

o amenity considerations for adjoining rural holdings; and

o potential for conflicts between tourist and residential uses as a consequence of legitimate agricultural practices.

The Rural Zone, Significant Landscape overlay and policy considerations

53 We consider that having balanced the various rural and tourism policies currently contained within the Moira Planning Scheme, there is a greater emphasis on providing protection and encouragement of agricultural practices.

54 We do not agree with the assertions made by Mr Haratsis that the policy to levy contributions for infrastructure in the corridor can be read to justify an intense development like this. The statement under the settlement objectives of Clause 21.04-3 says:

•

To levy contributions on an equitable basis for the provision of new works, services and facilities within the Shire's four major townships and within the corridor between Yarrawonga and Bundalong;

55 It seems to us that this statement more properly relates to infrastructure provision, such as the sealing of roads rather than promoting new development unrelated to agricultural activity on rurally zoned land.

56 This is not to say that tourism, or tourism related activities have no role in this area. However, based on the paucity of any direct tourism policy reference to this site or the corridor in general we consider if there is to be tourism it should have a closer relationship with the agricultural practices of the locality or have tourism facilities that will not undermine, deplete, or replace current agricultural land.

57 We are not satisfied that there is sufficient policy basis to support the loss of Rural zoned land for a non rural purpose which will have virtually no relationship with the rural activities that take place on adjoining or nearby land.

58 The purposes of the Rural Zone are:

•

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).

•

To encourage:

-

An integrated approach to land management

-

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 provision.

59 Whilst the applicants are proposing 350 dwellings, there did not seem to be a satisfactory acknowledgment that dwellings, particularly those which are not related to any rural activity on the land, are not encouraged in a rural zone. The discouragement of dwellings unrelated to rural activities is also supported by Council's own policies, particularly those at 21.04-1, 21.04-3 and 22.02 to which we must have regard under the first zone purpose.

60 Settlement objectives at Clause 21.04-3 include, inter alia, the following:

•

To consolidate urban and township areas.

•

To restrict housing opportunities in rural areas other than in identified areas on the town fringes;

•

To protect the use of agricultural land for agricultural purposes and to ensure housing in rural areas minimises the impact on the environmental and economic sustainability of the Shire's agricultural resources.

61 In relation to the Housing in Rural Areas policy (Clause 22.02) there was some debate at the hearing as to its applicability, with proponents of the permit application questioning its relevance and Ms Foley taking the contrary view. The policy seeks to ensure that the use of a dwelling on a rural lot does not prejudice surrounding agricultural activities. It applies to all land in the Rural zone for "applications to erect a dwelling" as distinct from "dwellings" or "group accommodation". We think in many respects that distinction is somewhat artificial - the sentiments expressed in this and other state and local policies are still highly relevant to our consideration of this proposal.

62 We concede that these dwellings are not intended for permanent residential accommodation, but nonetheless, they will be providing a use which is not encouraged in the zone. Whist Mr Haratsis and Mr Merrett argued that this was promotion of economic development compatible with rural activities, we are unconvinced that that is the true intent of that section of the purpose when read with the entire set of purposes of the zone.

63 We acknowledge the site will provide economic development but it is at the cost of the loss of at least 20 hectares of rural zoned land which is currently under crop. One could say the current agricultural use provides an economic, albeit modest, return. Furthermore, we do not see in those zone purposes any specific encouragement for tourism or tourism related activities.

64 We are also concerned that the applicants and their planning and economic witnesses have focused heavily on the last landscape objective in Schedule 1 to the Landscape Significance Overlay which seeks "Encouragement of tourist related activities complementary to the special characteristics of Lake Mulwala" to justify the proposal. A full reading of the Significant Landscape Overlay contains a Statement of the nature and elements of the landscape and objectives.

65 The Statement of nature and key elements of the landscape are:

Lake Mulwala has special attributes to the local and regional community particularly in relation to the waters and shoreline environs of Lake Mulwala as an area of significant landscape interest. The environs of Lake Mulwala are characterised by:

•

The qualities of a shallow inland lake providing a diverse range of unique open vistas;

•

A natural unspoilt character;

•

Abundance of wildlife and water birds;

•

A wetland character providing wildlife habitat; and

•

Areas of natural beauty which form part of the visual landscape.

The Lake Mulwala foreshore area is an important recreation facility to the local and regional community. There is a need to preserve and enhance the sensitive inherent landscape qualities comprising the waters, shoreline environs and lands bordering upon the land.

66 There are a number of landscape objectives to be achieved including:

•

To protect the landscape qualities and scenic vantage points of Lake Mulwala and its foreshore from visual intrusion resulting from inappropriate siting and design;

•

To contain urban development to existing townships with definite visual boundaries;

•

To reduce ribbon development along Lake Mulwala;

•

To provide for a diverse range of passive and recreational opportunities along the lake and foreshore; and

•

To encourage the development of tourist related activities complementary to the special characteristics of Lake Mulwala.

67 There are also various Decision Guidelines including an assessment of external colours and finishes of buildings and public access and views to the lake and its frontages.

68 Whilst we see some strategic encouragement for development of tourist related activities complementary to the special characteristics of Lake Mulwala, that reference is contained within the Significant Landscape Overlay. That overlay at present only extends for 114 metres from the edge of the Lake and the way we read that policy is that it is directed that tourist related activities are encouraged, say for example a boat ramp or public toilets, and not necessarily fully fledged tourist activities which replace agricultural land use. The impacts of proposals said to derive support from the realisation of the Overlay's objectives must also be tempered by other planning scheme considerations including notions of orderly planning and the clear imperative to avoid ribbon development along the corridor. That corridor extends beyond the lake edge covered by the overlay to include land adjoining the highway.

69 If anything, a full reading of the objectives weigh against this proposal because approval may contribute to ribbon development, particularly in the long term and because the site is outside the urban areas of Yarrawonga and Bundalong. Whilst we acknowledge that this project in isolation cannot be regarded as ribbon development, based on our observation of parts of the Murray Valley Highway between Yarrawonga and Bathumi, there are obvious examples of poor planning decisions arising from the sum of "one-off" decisions made over a period of time. We could see the council being placed under increasing pressure to approve other non-agricultural development and uses in the locality.

70 Indeed it is not difficult to envisage the presence of such an intense development like this amongst rurally zoned land used as justification for further non-rural based use and development. Alternatively, justification for other new use and development in the area might be sought on the basis that such proposals would service or complement the present proposal, such as food and drink premises. With the potential to attract up to 1000 tourists at peak times, the distance from Yarrawonga, the limited range of complementary facilities proposed on the land and existing within the Bundalong township, the continued spread of development along the corridor is a very real prospect. That outcome would only perpetuate the cycle of poor planning decisions in the corridor. It is an outcome that must be avoided.

71 As we have mentioned, the Yarrawonga Strategy is a document referred to under Council's settlement policies at Clause 21.04-3 and we are required to give it some weight. One strategy under this policy is to:

•

Implement the recommendations of the Yarrawonga Strategy Plan 2004.

72 Mr Merrett and Mr Haratsis made reference to the Yarrawonga Strategy Plan and particularly relied on the section at page 117 which states:

This land would be more suitable for a number of different activities including vineyards, intensive horticultural style allotments on large acreages. Alternatively, the tourism ventures based around ecological themes and focused on the different environment of the lake headwaters be encouraged.

73 We suggest that this 350 dwelling Group Accommodation proposal would not fit within our understanding of tourism ventures that are based around ecological themes. We acknowledge the applicant proposes extensive buffer planting and that it will derive some scenic views of Lake Mulwala, but in our opinion, those features would certainly not be unique to this site. Moreover, there is nothing in the nature of the proposal's operational characteristics that lead us to believe that this venture is based upon an ecological theme. It proposes an intense use of the land accommodating up to 1000 persons who may or may not have an interest in boating. The proposal is certainly not, for example, designed to provide a remote or bushland wilderness type experience given the spacing and siting of dwelling sites. Proposed pedestrian access to the foreshore area and views of the lake are also limited. Further, we are also not convinced that the neighbouring public boat ramp is of itself sufficient justification for this proposal for reasons that we will discuss shortly.

74 Interestingly, the strategy document initially directs attention to other agricultural practices, such as vineyards and intensive horticultural style allotments. The strategy certainly does not discount that the site could or should be continued to operate as a rural landholding.

75 We therefore consider that the proposal does not enjoy strong support in the context of this strategy.

Is the boat ramp a suitable feature to underpin the project?

76 Mr Haratsis placed great emphasis on the boat ramp becoming a regional facility and he claimed it was the competitive advantage above and beyond other sites (with the exception of the Montrose property to the immediate east) in this corridor. We are concerned that this proposal seems to rely heavily on these assumptions however we do not have the same level of optimism about its ability to anchor this large tourism project.

77 We inspected the recently upgraded boat ramp. It is a single lane facility with room to park 14 cars and trailers. There is no toilet or recreational facilities along side it. The jetty, whilst being in good condition, is small and rudimentary. It appears to service the locality and no planning witness could advise of the level of usage to demonstrate otherwise.

78 There is no reference in the Moira Planning Scheme or local policies about it being upgraded to a regional facility. The only reference to it is in the Yarrawonga Strategy document which calls for the original facility to be upgraded. Based on our observation most of this work has been done, with only the toilets to be added. We also observed that the nature of the foreshore reserve with its limited dimensions, vegetation cover and topography of embankments seem to be constraints that pose very real challenges for its upgrading to a regional facility. Even the provision of toilets is problematic due to the difficulty, and possibly, relatively high cost of waste treatment in this reasonably isolated spot abutting the Lake.

79 Mr Sherman suggested that waste water from the toilets could be treated from the waste treatment plant provided on this site. Whilst this is an optimistic suggestion it highlights another example of the lack of co-ordination in planning and infrastructure for this site and the area in general. Put simply, if a single lane boat ramp with a modest jetty is the "competitive advantage" that underpins the strategic justification for a large group accommodation proposal, then surely better particulars of its use and its ability to expand to a regional facility should have been investigated thoroughly.

Relevance of recent strategic initiatives and future zoning

80 We have examined the Issues Paper and proposed Strategy for Woodlands to Bundalong prepared by council but these seem to have focused on a narrow examination of future planning controls affecting the corridor. While these documents inform us as to Council's current strategic thinking, we give them only limited weight. They have not progressed substantially through any formal planning scheme amendment process. Notwithstanding, there was varying degrees of reliance upon these documents by the parties and witnesses in support of their respective positions. It is appropriate therefore that we make some comments about them.

81 We firstly observe that this strategic works has not, for example, explored in any detail issues such as provision for new boat ramps or upgrading of existing boat ramps, provision for social services, or vehicular access abutting and on the highway. No land capability of rural land or farm viability assessment has been properly undertaken. As we have mentioned, the strategy presently recommends rezoning of the land and most other land in the corridor to the Rural Activity zone. We appreciate that the strategy document is a draft and still needs to be placed before the Council and decisions made on whether it will be released in its current format. Before any rezoning occurs, the Council will also need to obtain authorisation from the Minister for Planning to exhibit an amendment to the planning scheme. No doubt there will be further discussion with the Department of Sustainability and Environment about advantages and disadvantages of any amendment. This is not a simple or quick process, nor should DSE's previous concerns to the council in this application process or the Tribunal hearing be taken lightly.

82 We are also aware however, that in line with the review of rural zones for Victoria undertaken by the State Government, the Rural zone would in the normal course of events, be replaced by the Farming zone. If the Farming zone were applied, any development for "Group Accommodation" would be limited to only 6 dwellings. This proposal for 350 dwellings would therefore be prohibited in the Farming zone. While there is some uncertainty about the ultimate zoning of the land we affirm that we must consider the existing controls and scheme provisions at the time of making our decision.

83 Nonetheless, we feel compelled to make the following observations about Council's apparent preference for the Rural Activity zone.

84 In doing so, we agree with Ms Foley who highlighted in paragraphs 103 to 113 of her submission that there are a number of concerns with approving this development prior to a determination being made on the future zoning and introduction of any other overlays. Some of these concerns include:

•

Comments by the Department of Natural Resources (NSW) about the development of tourism facilities taking place in an ad-hoc manner especially if the zoning is not specific to that development.

•

Issues about what constitutes viability of farms.

•

Addressing conflicts between rural and non-rural uses.

•

Addressing other landowners concerns particularly on properties which have similar development capabilities and competitive advantages over other landholdings in the corridor.

•

Unnecessarily raising existing landowners' expectations with the flow on impacts such as inflated land values.

•

The lack of any land capability assessment for this or other rural landholdings in the corridor.

85 We are also mindful of the comments made by the panel convened to hear Amendment C13 to the Moira Planning Scheme. Amongst other things, this amendment involved the Council's three year review of its Municipal Strategic Statement as required under the Planning and Environment Act 1987. The amendment process has been completed and changes to the planning scheme made. Commenting on rural issues, the panel made the following observations in its report:[6]

The MSS Clauses 21.04 Settlement and 21.05 Economic Development make it clear that housing in rural areas is primarily to accommodate people actively engaged in agriculture and that rural residential development and subdivision must not prejudice the long term sustainability of farming.

The Panel believes that these reworked rural policies are an effective means of supporting SPPF and MSS strategies to protect the productivity of agricultural land. It is also noted that the Amendment provisions are consistent with the thrust of recommendations of the recently released Rural Zones Review Reference Group.

It is noted that the MSS indicates that a Rural Land Audit/Strategy will be undertaken. This work has been identified as a high priority and would provide the strategic basis for future review of the rural zones. Submissions at the Panel hearing from GBMCA and DSE endorsed the high priority accorded to this work.

86 In this context we are troubled by what seems to be the continued making of ad-hoc decisions allowing development in the corridor in the absence of any sound strategic support. Interestingly, the draft Strategy[7] makes the following comments apparently in support of the need to rezone the land from the Rural zone along the corridor:

It must be said however, that some recently approved subdivisions and dwellings have not been consistent with these policies, but have been approved on the realization that the land between the highway and the lake cannot, because of the small lot size, be used productively for agriculture. The fact that these decisions have been made indicates that the current Rural Zoning is inadequate.

87 These statements (and indeed decisions) seem to have been made despite any proper land capability or farm viability assessment having been conducted. The presence of lots that are smaller than the existing 40 hectare minimum seem to be one of the key driving forces behind Council's current thinking about the future of the corridor. Pressure from landowners for development of their land with foreshore abuttal appears to be another - driven perhaps by the potential to realise higher returns than what can be reasonably expected from an agricultural use on rurally zoned land.

88 The incremental loss of rural land and its fragmentation nonetheless loom large as important policy considerations[8]. The Rural zone review which has led to the formulation of a new suite of zones sought to address these very issues.[9] We are not however persuaded by arguments put to us for the permit applicant that this proposal would be acceptable because it only removes a small parcel of 20 hectares out of production for agriculture. It is the incremental effect of approving proposals like this that undermine the on-going viability of agricultural land for farming purposes - a process which State and local policies seek to arrest.

89 We also observe that the size of existing lots (which along the corridor are an average of 23 hectares) need not necessarily be viewed as unsuited to sustainable agricultural production. That would ignore the ability for farmers to own or lease non-contiguous land holdings. We understand that this is presently done by the MacPhersons, whose farm holdings total some 330 hectares, including some parcels in the broader area and the Montroses whose holdings total 400 hectares including 4 parcels within the corridor. While the strategy identifies the Montroses multiple farm holdings in the corridor we do not think the implications of that situation is properly supported by the conclusion that "because of the small lot size, [the land cannot] be used productively for agriculture".

90 If anything, many of the issues raised in the Strategy document and Issues Paper highlight a need for a comprehensive examination of land capability and the strategic planning and statutory planning directions for this area before any decision is made about a relatively large residential/ tourism development on an isolated site in the corridor. While have found that this proposal is not supported by existing planning scheme controls and policies, we also consider that its approval would be premature and may adversely pre-empt sound decision making about the most appropriate zone for this site and land within the corridor.

Expectations of the future development potential of the area

91 We acknowledge that most properties in this corridor have access to Lake Mulwala, but only this property and the Montrose property on the eastern side of Majors Lane have close proximity to the lake. We were told that the Montroses themselves supported some facilities and no doubt will obtain certain expectations of development opportunities and property values which could accrue on their own land and that it would be understandable for them to think that they could develop their land in a similar way. That is not necessarily a correct expectation as every application must be dealt with on its merits, but having regard to this ad-hoc proposal, we can understand their expectations rapidly changing if this proposal was approved in its current format.

92 We do not consider that any landowner in this corridor should come to expect that through a process of inertia the corridor will extend from Yarrawonga to Bundalong. Accordingly we consider it would be quite prudent for the Council to complete its strategic review and undertake a land capability and farm viability assessment before making decisions about the ultimate level of development in the corridor if it does in fact seek to rezone the land to a zone which differs from the Farming zone.

93 It became quite apparent during the review hearing was that there was a number of loose ends relating to the proposal which required further clarification. This included identification of the water treatment plant outside the area designated as the development site, identification of waste treatment plant and related infrastructure between the group accommodation and the Murray Valley Highway that is within the 100 metre nominal building setback requirement under Clause 35.01-3 of the Planning Scheme, the need to provide a staging plan and to identify various matters which should be shown in Stage 1 including kiosk/shop, hub facility, and a swimming pool which will need separate planning approval. The plans were also largely devoid of any dimensions.

94 The information about the waste water treatment plant became clearer after examination of Mr Simpson's report and cross examination. This is not to say Mr Simpson failed to disclose relevant information. To the contrary, details about the waste water plant are contained in the engineering report accompanying the application. Information about the location and design of necessary infrastructure, even in a schematic way, had not however found its way onto the application plans.

95 We also would have thought that at the very least, permission would have been sought for the dwellings at this stage given the works permission that we believe is necessary for this aspect of the proposal. On this point, we agree with the findings made by Members Rickards and Hewet in John King and Others v Colac Otway SC [2001] VCAT 2009. Amongst other things, that case involved declaratory proceedings concerning a proposal for the placement of cabins/unregistrable movable dwellings/movable buildings at a caravan park in Marengo. Although that site was within a Public Conservation and Resource zone, like a Rural zone, planning permission is required for works in the respective circumstances of these cases. The Tribunal found that:

[125] It is considered that the placement of cabins/unregistrable moveable dwellings/movable buildings on the land will change the existing condition of the land. Therefore whether the cabins are placed on concrete blocks or not, anchored or not, hard connected to services or not it is the mere placement of the cabins on the site that is considered to be the carrying out of works.

96 We question whether people unfamiliar with the planning permit process would have been able to absorb the manner in which information was selectively shown on the application and make informed comment on its various components at the appropriate time.

97 We reject the notion suggested by Mr Sherman that we could provide an interim decision on the "use" and then call for more detailed plans of the development particularly in Stage 1. We do not consider this to be a very well thought out strategy and it has symptoms of a piecemeal application. Whilst it can be distinguished from the Pioneer case[10] we feel the method of leaving parts of the project identified in Stage 1 out of this application, together with the vagueness about future planning applications for various buildings and works was less than satisfactory and it made a full and proper assessment of the project in total more difficult.

98 We have found it unnecessary to turn our minds to the issues raised concerning conditions on the permit. On the one hand, the Montrose Family sought a reduction in the development potential of the land, greater setbacks, and further details on development issues. These are appreciated but our principal concerns at this stage relate to the lack of strategic justification for this project given the current planning scheme and policy framework.

99 Similarly, the review raised issues about some of the conditions that could have been addressed quite easily. Various discussions at the latter part of the last hearing day illustrated that in reality most of the conditions discussed by the applicant could have been addressed. We would suggest however, having regard to the number of loose ends that arose during the hearing, that this was really an incomplete planning application even if it was just for use and that a more comprehensive use and development application particularly involving all matters identified ultimately in Stage 1 should have been incorporated so that a better appreciation of the full impact of development could be gained by all parties and the Tribunal.

100 For the abovementioned reasons the responsible authority's decision is set aside. It is directed that no permit issue.

[1] Under Section 82 of the Planning and Environment Act 1987

[2] Under Section 80 of the Planning and Environment Act 1987

[3] Page 6.

[4] Wilbow Corporation v Kingston C.C. and A Beech & Others P1983/2005, Dromana Tourist Park Holdings Pty Ltd v Mornington Peninsula S.C. and Dromana Drive-In VPR20

[6] Pages 77-78 - Panel comprised Cathie McRobert, Rowland Ball and Esther Kay.

[7] Page 14

[8] See for example Clause 17.05

[9] Changes to the VPPs occurred in June 2004

[10] Pioneer Concrete (QLD) Pty Ltd v Brisbane City Council and others ALR28