Department of Sustainability and Environment v Moira SC [2006] VCAT 1917

Department of Sustainability and Environment v Moira SC [2006] VCAT 1917 - VCAT 2006 case summary — Zoe

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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.

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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:

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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:

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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.

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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.

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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:

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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.

At a glance

Court

Decision date

Before

Source

Judgment (84 paragraphs)

Department of Sustainability and Environment v Moira SC [2006] VCAT 1917 (15 September 2006)

Parties