Mr. David Proctor, consultant of New Zalia Pty Ltd.

1. This is a review of a decision to grant a permit for a boundary realignment subdivision and a subsequent dwelling with intensive animal husbandry at 265 Mountain View McDonalds Track, Mountain View.
2. At the commencement of the hearing I noted that there was considerable discrepancy between the description of the application, the description of it in the council resolution and the description in the notice of decision. This was acknowledged by Ms. Bryant and after some discussion with the parties I determined to amend the application to include the words "intensive animal husbandry" being calf rearing.
3. The Application will be for the re-subdivision of three lots to create two lots and the use and development of land for a dwelling on the smaller lot with earth works and intensive animal husbandry being calf rearing.

1. This land is situated 25km south-west of Warragul. It is steep land in the Strzelecki ranges. Two water courses flow through the land and it also contains some native bushland along the water courses.

1. The re-subdivision will create two lots, one of 40 hectares and the other of 6.4 hectares. A dwelling is proposed to be built on the 6.4 hectare lot. While the land on which the dwelling is to be sited has slopes of approximately 25 and 28%, I was informed by Mr. McCaffrey that the proposed location for the dwellingwill be on a small gently sloping area at the top of a ridge. The applicants and their family already have a dwelling on a lot immediately to the south.

1. The site is zoned Farming Zone in which the minimum lot size is 40 hectares. An exception to this minimum is where the proposed subdivision is re-subdivision of existing lots and the number of lots is not increased. A s.173 agreement must be entered into at that stage to ensure the lots are not further subdivided. A dwelling use and development proposal requires a planning permit. Under the provisions of the Farming zone the proposal has to meet state and local planning policy frameworks, the MSS and local policies, any regional catchment strategy and also propose how the use or development relates to sustainable land management and whether the site is suitable for the use and development. It also has to address agricultural issues, dwelling issues, environmental issues and design and siting issues with the whole range of objectives and requirements.
2. The land is subject to an Environmental Management Overlay and a permit is required for buildings and works for the proposed dwelling and any pertinent outbuildings.
3. The responsible authority has a policy relating to steep land at cl.22.03-4 of the scheme that has a number of policies including a minimisation of earthworks, avoidance of prominent ridge lines and minimal removal of native vegetation.
4. The responsible authority also has an amendment C44 that will re-zone areas where subdivision patterns of existing development are at a density which limits potential for the creation of large farms.

1. Upon receipt it was referred to the DS & E externally and the responsible authority's health and engineering departments internally. While DS & E required a s.173 agreement relating to further subdivision and the engineers' department advised there was no evidence of land slip of the area of the house there no objections from those bodies. The application was then advertised to surrounding owner occupiers resulting in five objections being received, four of these from two households. Eventually there were 21 grounds of review provided by Mr. Proctor for his clients after the responsible authority had determined to grant a permit subject to the conditions contained in the Notice of Decision to Grant a Permit.

1. At the conclusion of the hearing I issued an oral direction that I later provided in writing. This direction stated:
   1. The parties shall within 14 days of the order provide the Registrar and the other parties with submissions dealing with viability of the lots for supporting agricultural activities as discussed at the hearing.
   2. A further 7 days is provided for comments on the submissions to the Registrar and other parties.
   3. Unless a further hearing is requested by a party the matter will be dealt with on the papers.
2. In the processing of this direction the responsible authority was not required to make any submissions.
3. Submissions were received by the Registrar from Mr. McCaffrey on behalf of the permit applicants and from Mr. Proctor on behalf of the applicants for review. These documents together with the submissions, plans, photographs and other information provided at the hearing are all contained in the Tribunal file.
4. Before I start to deal with the issue of whether the small lot can sustain a viable farming enterprise that requires a dwelling and other buildings on the land, I will first deal with the existing lot issue.
5. There are three existing lots making a total of 46.4 hectares. The lots range in size from in excess of 10 hectares to in excessive 24 hectares. Under cl.35.07-4, a permit is required to carry out buildings and works and under 35.07-5, a permit is required for the use of a lot for a dwelling. Clause 35.07-6, Decision Guidelines, lays out a whole range of issues that any application for the use of the dwelling must address and the responsible authority must be satisfied that these matters are addressed to the extent where there is no detriment to the overall agricultural viability of the subject land and surrounding lands before granting a permit. Therefore, the onus is on the applicant to prove to the responsible authority and in turn the Tribunal at appeal that small lots on which houses are proposed can sustain themselves through an agricultural perspective. Therefore, to obtain a permit to build a dwelling on each of the existing lots would not be easy, although possible.
6. The land is very steep and therefore would not generally sustain traditional agricultural growing of serial crops and the like. The dairying use of the land is probably its best and highest purpose and this is something that has occurred over many years.
7. Under the land use term of Intensive Animal Husbandry, the definition is "land used to keep or breed farm animals, including birds, by importing most food from outside the enclosures. It has a number of exclusions.
8. The council officer dealing with the matter in his report was generally negative towards the proposal. His recommendation was compromised and this was based mainly on a s.173 agreement being entered into by the permit applicant that would not allow the building of a dwelling on the resultant larger, 40 hectare parcel. That recommendation as part of condition 4 was removed by resolution of the council from the Notice of Decision. The responsible authority's officer at the hearing in part supported the contention of Mr. Proctor that "income projections are overly optimistic and include a share of income already being earned from existing cattle grazing".
9. The officer indicated that this was all about estate planning so that a whole family could continue to live on this land and retain their own dwellings and titles. Now there is nothing wrong with that provided the scheme allows it and the viability of the farming land remains.
10. I have no doubt that the applicants are bona fide farmers. The farming would appear to have been secondary to other professional positions for the two parents but it would seem that some of the children are more inclined to be fully occupied on the land and the parenst on retiring.
11. I note from Mr. Proctor's submission one of the number of previous Tribunal decisions he quoted, Member Martin in Hasstta Holdings Pty Ltd v. Latrobe City Council [2007] VCAT 1555 (29 August 2007). In that decision he quoted the decision of Senior Member Baird in Collins v. South Gippsland Shire Council VCAT Ref: P2045/2005. He said in relation to the policies that "the bar is set fairly high". Both Tribunals were fairly consistent in their views on the fragmentation of rural land. The refusal of such, unless there are exceptional circumstances, seems to have been a common theme throughout many Tribunal decisions including those quoted by Mr. Proctor. That is why at the end of the hearing I indicated that I would require further information on the viability of the calf rearing enterprise before I could make a decision on this matter. I did that after coming out of a recent hearing on an 8.3 hectare property in the Moorabool Shire where the use was for a Section 1 purpose, being the growing out of foals and was one that required a dwelling because of the costly nature of the enterprise and the fact the foals required 24/7 surveillance. However, I cannot say the same about this proposal. This proposal is not necessarily required to be carried out on a 6.4 hectare property. It could just have easily take place on the resultant 40 hectare other lot or indeed within the existing farm paddocks. However, the application is for a 6.4 hectare lot and therefore I must address it.
12. I have been given two submissions, one from Mr. McCaffrey on behalf of the permit applicant and the other from Mr. Proctor in which he criticises the McCaffrey submission. Mr. McCaffrey's submission included a number of attachments from various government departments and experts in the field of calf rearing. Each one indicated that the sooner the calves have supplementary solids introduced to their feeding regime while still on liquids, the better. One of the attachments from the Queensland Department of Primary Industries and Fisheries stated:

The future of any dairy farm depends on the successful rearing of calves and heifers for herd replacement. Unfortunately, too often calf rearing is regarded as just another task, done mechanically then move on to the next job. Successful calf rearing is very dependent on the skill, experience and empathy of the stock person looking after the animals.

1. This in my mind means that calf rearing if done in an intensive manner certainly requires somebody living on the site to ensure they are safe and healthy. In Mr. McCaffrey's further submission he increases the number of calf intakes to 4 with each batch comprising 60 calves. These are dependent initially in a shed large enough to contain them in separate pens of 6 animals per pen that has appropriate bedding for the animals. After 10 days they are put out to pasture during the daylight hours and penned in the shed at night. After 6 weeks the calves are to be removed and housed in paddocks. Mr. McCaffrey gave a financial viability assessment and this indicated at the end of the day would be an annual income based on 4 batches per year of 49,200. Mr. McCaffrey went further in providing several previous VCAT decisions including Great Southern Plantations v. Colac Otway Shire Council, VCAT Ref: P9277/2005 where Deputy President Gibson and Member Davies said among other things:

If the consequences of creating a small lot will not adversely impact on the objectives of the policy at that stage being the rural policy then there is no point in applying the policy in a prescriptive way.

1. I note that the provisions of the Farming zone have been tightened somewhat in relation to these matters.
2. Mr. Proctor's further submission clearly questioned the viability issue and gave a detailed table of costs and profits. In his view, there would be a loss of 4 batches per year of $46,500. If that further information from both the parties is not confusing, I don't know what is. I am unsure of these figures because I have no way of determining whether either of them is correct or not.
3. I do not believe that I can uphold the view that a s.173 agreement on the 40 hectare lot would be at all legal because a lot having an area of 40 hectares is entitled to have the house on it as a Section 1 purpose. I am inclined, therefore, in the circumstances to take the precautionary approach and refuse the application and this is consistent with many other Tribunal decisions in recent times on such matters.