Crown Allotment 31B Section 31 Warby Range Road

Estate of JE Walker v Wangaratta RCC [2021] VCAT 1257

1 In application P1881/2020, the decision of the responsible authority is affirmed.

2 In planning permit application No. PINAPP20/091, no permit is to issue.

Nr Neil Haydon (solicitor/planner), who called expert arborist evidence from Mr Rob Galbraith

Mr Martin Ireland (Council planner), who called expert agricultural capacity evidence from Ms Shelley McGuiness

Application under section 77 of the Planning and Environment Act 1987 - to review the refusal to grant a permit.

Clause 35.07-3: a permit is required for subdivision pursuant to the Farming Zone

Clause 52.02: a permit is required to create an easement

The subject land is located roughly a nine minute drive west of Wangaratta and is rectangle shaped, with an east-west orientation. It has an area of 129 hectares, with a gentle slope from the west to the east. The site is does not include any dwelling and is mostly cleared apart from some paddock trees. It simply features three dams, a bore and some water troughs for livestock. The land has been used for grazing livestock it would appear, with some occasional cropping. There are indications that the adjoining land to the west has been jointly farmed with the subject land, noting the presence of farm tracks between the properties and with Council confirming that both rates notices go the same mailing address. The dominant land use in this broader locality is livestock grazing, although there is an olive grove about 700m to the south. There is no access to irrigation water in this location.

1 The subject land here has an area of 129 hectares and is essentially cleared and used for livestock grazing. The Council expert agricultural capacity witness Ms McGuiness describes it as "productive agricultural land of moderate agricultural versatility, suited to broadacre cropping, broadacre grazing or viticulture"[2]. It has some form of road running around all four sides of the lot. The site is zoned Farming Zone (FZ), which sets a minimum lot size for subdivision of 40 hectares. The main features of the site, the locality and the relevant planning framework are set out further above. The site lies 1.7 km to the west of the Wangaratta North West Growth Area, which is zoned General Residential Zone.

2 A planning permit application has been lodged with respect to the subject land for a three lot subdivision and the creation of an easement. A similar planning permit was issued in 2007, but was not properly acted upon. The subdivision would split the overall site into three equal lots, with vertical boundaries between them. Each new lot would have an area of 43.15 hectares. The Whole Farm Plan put forward loosely identifies the proposed farm activities for each new lot as being grazing and cropping.

3 The easement being sought is to facilitate the provision of access to water for the subject land, via the abutting land to the west. This proposed easement is not contentious in itself. The proposed vehicle access on to each lot would be from Lindner Road to the south. This road to the south is itself affected by a Vegetation Protection Overlay Schedule 2 Roadside Vegetation of Conservation Significance (VPO2).

4 It is common ground that if the proposal went ahead, each new lot could have a dwelling built on it, as-of-right from a planning perspective.

5 The application plans show that the proposed western lot (Lot 1) and the central lot (Lot 2) would have a 'double driveway' arrangement, whereas the eastern Lot 3 would have its own single driveway provided for. Council's main practical focus here was its concern about the possible adverse impacts on the more western driveways being constructed near the native trees in the road reserve area.

6 In relation to the processing of the proposal, Council believes that the relevant permit triggers include not only the need for subdivision and easement approval with respect to the subject land, but also the requirement to obtain Clause 52.17/VPO2 planning permission for vehicles to be able to access the three new lots from the south side of the new lots (Lindner Road).

Tribunal hearing process/glitch with project surveying for site inspection by Mr Galbraith

7 Council does not support the proposal and it has come on review to the Tribunal. The initial hearing day before me occurred on 19 July 2021. I heard the Council submissions and received the expert evidence of Ms McGuiness. The essence of the evidence of Ms McGuiness was that the three proposed new lots would not be economically viable to be used for productive agriculture, that the proposal is contrary to the relevant planning controls/policy framework and that in reality the three lots would be likely to be used as lifestyle properties.

8 In opening the applicant's case, Mr Haydon called his arborist expert witness Mr Galbraith, whose report addresses the proposed driveway southern vehicle access arrangements. The report by Mr Galbraith in essence supports the proposition that such driveway access arrangements can go ahead, without the need to remove any trees and without any inappropriate damage to the tree protection zone of the nearest affected trees in the road reserve area on the south side of the site which is zoned VPO2. In other words, his evidence in his report was that with appropriate techniques to minimise any root damage/the necessary excavation, the necessary vehicle driveways could be constructed without unduly intruding into the relevant tree protection zone.

9 Although in many respects Mr Galbraith's oral evidence at the hearing was consistent with his written report, some important new information came to light for the first time at the hearing, as follows.

10 It was common ground that when Mr Galbraith did his site inspection, in terms of where he understood the proposed driveway locations would be, he was reliant upon pink ribbons on the 'post and wire' fencing put there by the project surveyor. And his written evidence was prepared on this basis.

11 However at the hearing, Council indicated that it had carefully checked the information in Mr Galbraith's written report against its own understanding of the southern boundary of the site, and discovered the following discrepancy. Council submitted that whereas Mr Galbraith's report assumes the relevant aforementioned 'fencing markings' correctly line up with the locations for the new driveways as shown in the application plans, Council's investigations indicated that the more western of the two potential driveway locations focused on by Mr Galbraith is actually about 100 metres further to the east than is shown in the application plans (but still within the southern boundary of the proposed Lot 2).

• With the two possible driveway locations actually assessed by Mr Galbraith during his site inspection, one lies on the southern boundary of Lot 3 and the other on the southern boundary of Lot 2.
• Because of the abovementioned error with the marking of the southern fence by the project surveyor, in reality Mr Galbraith had not considered any part of the proposed Lot 1 southern boundary for potential vehicle access.

13 After some discussion, this basic proposition by Council set out in the paragraph above was accepted by the applicant.

14 However Mr Galbraith's evidence-in-chief and cross examination still involved a useful review of the proposed driveway locations actually reviewed by Mr Galbraith during his site inspection, that we now know could provide driveway access to the intended central and eastern lots. My hand notes indicate that by the end of this 'giving of evidence' including the questions put to Mr Galbraith, there was a consensus or close to that:

• The proposed driveway access from the south boundary to the eastern Lot 3 would be acceptable.
• The intended driveway access point to Lot 2 (just a single driveway, not a double) would be an acceptable fit with the nearest trees in the tree reserve, if the width of the driveway was reduced to 3.5 metres and it was moved about 700 mm to the east.
• Everyone agreed that through no fault of his own, Mr Galbraith (in light of the new information) had not actually done any assessment of any vehicle access point from the south into the proposed western Lot 1.

15 As we then ran out of time on this first hearing day, we came back for a further half day hearing on 6 August 2021, at which time Mr Haydon completed the applicant's case.

16 There was a helpful discussion at the very end of the 6 August 2021 hearing, regarding the appropriate way for the Tribunal to deal with the proposal (in light of the new information) in fact not including any intended southern vehicle access point for the intended western Lot 1 which had been assessed by Mr Galbraith. Ultimately all parties were content that I move forward on the basis that:

• I would first issue an interim order, dealing with the strategic planning merits of the proposal, which did not require any site inspection; and then
• (if my initial finding was favourable for the applicant) conduct a site inspection and issue further directions how to progress the situation with the 'vehicle access to the western lot' issue.

Tribunal comments on project surveying glitch

17 I acknowledge that the indications are that this error with the 'on the ground surveying' and the pink ribbons on of the southern fence relied upon by Mr Galbraith was accidental, rather than sinister. However it is absolutely critical to public confidence in the planning system and the orderly conduct of planning merits reviews at the Tribunal that members can rely on the basic information being put before it by the professional consultants involved in this type of VCAT hearing.

18 As I said at the hearing, it is a very serious matter for erroneous information to be put before the Tribunal that:

• If not discovered, would have made the Tribunal's findings on the 'impacts of the proposed double driveway on the nearest native trees in the road reserve' issue very compromised.
• Once discovered, has caused major problems with the running of and completing this planning review VCAT process.

19 Hence I would not want to see this type of serious glitch occur again at the Tribunal.

20 In summary then, given the revised process that was agreed with the parties, the task before me at this stage is simply to make a finding whether or not the proposal has an acceptable level of strategic planning support. On the one hand, I consider that Mr Haydon 'put his best foot forward' with his advocacy, with highlighting those more favourable points that he could. On the other, for the reasons set out below, I have ultimately answered this determinative question in the negative and hence I have made orders above affirming Council's Notice of Refusal to Grant a Permit. It follows that I do not need to make any finding or provide for any follow up process regarding the 'vehicle access to the western Lot 1' issue.

TRIBUNAL FINDINGS ON EXTENT OF STRATEGIC PLANNING SUPPORT FOR THE PROPOSAL

21 In seeking to establish that the proposal has an acceptable level of strategic planning support, the key single aspect of the proposal which the applicant relied upon was simply that each of the three intended new lots meets the minimum lot size of proposed subdivisions of 40 hectares.

22 Otherwise, Mr Haydon highlighted that many other lots in this location have lot sizes around or smaller than 40 hectares. Or to put this another way, Mr Haydon argued that this location already has a substantial 'hobby farming' aspect to it, such that the potential hobby farming of the three new lots would be consistent with this existing character.

23 If the three new lots were approved and created and did turn out to be hobby farmed, Mr Haydon argued that hobby farming still involves a meaningful extent of 'farming' and hence still advances the purposes of the Farming Zone. That is to say, running a few sheep or the like on a 43.15 hectare property is still contributing to the 'farming' activities in this area.

24 This line of argument and thinking was resisted by Council at the hearing. Council submitted that land such as this zoned Farming Zone and historically used for farming should be used for genuine farming, not for hobby farming.

25 Council expressed major concern that if the proposal went ahead, with the site only being a 9 minute or so drive from Wangaratta, the likely prospect was that the three new lots would be separately sold off and each become a form of 'lifestyle property/hobby farm, with what Council regarded as a token level of farm activity. Council highlighted that is it common for genuine farming to involve the farming of multiple lots in different locations and argued that making a 'farming living' from cattle grazing a 129 hectare lot is already problematic, let alone trying to do this on a 43.15 hectare lot.

26 In putting forward these arguments, Council relied on the expert agricultural productivity evidence on these type of issues of Ms McGuiness.

28 First, what is the appropriate process for the assessment of whether or not the proposal enjoys an acceptable level of strategic planning support?

29 Second, applying that appropriate assessment process but subject to reviewing the relevant case law, does the proposal have an acceptable level of strategic planning support?

30 Third, does the relevant caselaw change this basic position?

31 With the first issue, for the removal of any doubt, I find the correct assessment process with my discretion here to be as follows. I need to consider the relevant purposes and strategies of the relevant planning framework in the Wangaratta Planning Scheme, then making a judgement to what extent the proposal is consistent with/advances those purposes and strategies.

32 To be clear, this assessment process needs to be done holistically, rather than just a 'tick a box' approach or simply doing a mathematical calculation whether or not the proposed new lots would satisfy the 'minimum lot size for proposed subdivision' requirement in the Farming Zone.

33 To the extent that Mr Haydon urged me to place a high degree of strategic weight simply on each of the intended three new lots satisfying the 'minimum of 40 hectares' subdivision benchmark, I regard this approach as overly simplistic and misguided. Rather, I consider this 'minimum of 40 hectares' benchmark as more being in the nature of a condition-precedent to an owner even seeking approval to further subdivide her or his land. Even where this 'minimum size' benchmark is met, a proposed subdivision of land zoned Farming Zone still needs to establish that it would be an acceptable planning outcome in terms of the broader planning framework.

34 Also for the removal of any doubt, I reject any suggestion that in exercising my discretion whether or not a permit should issue for the proposed three lot subdivision, the correct assessment process is to focus on any existing compromised aspects of the local context and then work backwards from there, along the lines of 'what's good for goose is good for the gander' or 'the orderly planning horse has already bolted'. Practical considerations like the local existing lot size pattern and any existing local hobby farms are certainly in the mix of factors to be considered in my discretion, but not determinative or an end in themselves.

What key use/uses of the subject land does the Planning Scheme strategically promote and (subject to a case law review) does the proposal have the benefit of an acceptable level of strategic planning support?

35 With the second issue, I find that the Farming Zone and relevant policy provisions for the subject land give priority to promoting its productive agricultural use. When I use the word 'productive' here, which I take from the purposes of the Farming Zone and aspects of the relevant policy framework, I am referring to 'meaningful' farming, or perhaps 'genuine' farming.

36 For example, Clause 14.01 of the State planning policies has the planning objective of 'To protect the state's agricultural base by preserving productive farmland". Whilst the associated 'strategies' do not refer to subdivision, one of them is related in promoting the following - 'Encouraging consolidation of existing isolated small lots in rural zones'.

37 With Clause 21.05-1 (Rural land use and agriculture), the following provisions are relevant and on point, particularly the text I have highlighted:

• Although subdivision may potentially impact on the productive performance of rural land, the construction and use of housing in some areas has led to the loss of agricultural use and generated conflict between rural and lifestyle uses. Both subdivision and rural housing must provide for and retain the agricultural use of the land. Any subdivision and rural housing proposals in higher agricultural productivity and versatility areas need to be directly linked to an agricultural use, retain productive agricultural use of the land and area, protect the economic potential of the land and area for agriculture, and not be used for rural lifestyle purposes.
• Subdivision and housing in rural areas can lead to difficulty in funding, provision and maintenance of services such as road, electricity and water supply. Infrastructure may be required or be supplemented through contributions for rural subdivision and housing. Any rural subdivision and housing proposals must assess and provide infrastructure as required, including practical and legal access for service providers as needed.

38 With Clause 22.01-2 which deals with 'Subdivision in Rural Areas', the Objectives are set out below:

• Ensure the land subdivision does not diminish the productive agricultural capacity of the land or general area, particularly in 'high' or 'very high' agricultural versatility areas.
• Ensure that any subdivision of land is for the rural or agricultural use and development of land, rather than for rural lifestyle lots or development.
• Ensure an adequate standard of infrastructure for rural land use subdivision.

39 Under the sub-heading of 'All subdivision", some relevant policy objectives are to:

• Ensure that any subdivision proposal has a relationship with and is required to directly support the continuing operation of an existing rural use conducted on the land.
• Maintain agricultural production and rural uses on the land.
• Ensure that any subdivision proposal is compatible with and will not have an adverse impact on farming and other rural land uses on the land, adjoining land and the general area.

40 The purposes of the Farming Zone are shown below:

• To implement the Municipal Planning Strategy and the Planning Policy Framework.
• To provide for the use of land for agriculture.
• To encourage the retention of productive agricultural land.
• To ensure that non-agricultural uses, including dwellings, do not adversely affect the use of land for agriculture.

41 The last three purposes are very on point here - a focus on protecting/retaining productive agricultural land and avoiding non-agricultural uses which would undermine such productive agricultural focus. Similarly, I accept that the planning policy framework is also promoting the productive agricultural use of land zoned Farming Zone and discouraging subdivision that would compromise same.

42 I see the following aspects of the proposed three lot subdivision as fundamentally clashing with this strategic planning emphasis on promoting productive (meaningful) farming activities on the subject land and avoiding subdivision which would compromise such activities.

43 First, with reliance upon the credible evidence of Ms McGuiness, the simple economics of the proposal are highly problematic. The obvious current and ongoing farming use of the subject land is for cattle grazing and the Whole Farm Plan submitted as part of the proposal lines up with this. The indications are that the likely existing annual income from such grazing that would be generated by the whole of the current 129 hectares would have its real limits, as was acknowledged by Mr Haydon during the hearing.

44 When I asked the applicant at the hearing how then subdividing the parent land into three new lots of 43 hectares (each of which could be separately owned) would positively change this economic status quo, I did not get any credible response. It is not as if the proposal includes investing large amounts of money into the development of the new lots, so as to 'change up' the agricultural capacity situation with intended new and highly productive/profitable agricultural uses of the new lots. This is consistent with the existing limitation that this location does not have access to irrigation water.

45 Rather, the proposal largely assumes a similar on-going cattle grazing scenario with the new lots, perhaps with some cropping thrown in. Surely having three much smaller lots rather than the existing 129 hectare lot will only exacerbate the existing 'economic viability' constraints.

46 Second, with the subject land being merely a nine minute or so drive away from Wangaratta, I do see a major prospect that if the three lot subdivision went ahead, the new lots would be attractive to use as lifestyle properties. This would run directly counter to the thrust of the strategic planning framework which I have set out above. Again I rely on the credible evidence of Ms McGuiness in this regard.

47 Third, if in theory the three lot subdivision went ahead and some or all of the new lots were used for lifestyle purposes/as hobby farms, I do not share Mr Heydon's view that this would still advance the main strategic planning aims for the subject land as set out above. The point is that this strategic planning framework is not just promoting any form of farming, but is encouraging 'productive' farming. As alluded to above, I see the decision by the Planning Scheme draftsperson to include the word 'productive' as pointing to a desire that the farming activity not be token, but be meaningful/genuine. Or to put this another way, the word 'productive' in the relevant text in the Planning Scheme must be given work to do, not just 'wished away' or inappropriately 'read down'.

48 I endorse Council's submission at the hearing that the situation of a livestyle property running a few sheep or goats or the like does not constitute meaningful farming, so as to come within the scope of the word 'productive', where the Planning Scheme is promoting 'productive farming'. Rather, I see running a few sheep/goats/chooks or the like as being in the nature of keeping such animals essentially to fulfill the role of family pets.

49 Fourth, I see weight in Council's submission that the proposal runs 'against the grain' of the common practical farming trend, where the one farmer can potentially carry out farming activities over multiple lots that are not contiguous. I accept that the proposal undermines this potential situation of a farmer generating a more sustainable farm income over a wider group of lots, by creating the situation where (if the proposal went ahead) each of the new lots may have a different owner, who may well want to independently utilise that lot him or herself. This would then remove that lot from the broader pool of lots which can be farmed on a 'group basis' in this general location. This in turn would have a negative impact on the Planning Scheme aim of land zoned Farming Zone being used for productive farming purposes.

50 My findings on this issue match that of the Tribunal on the same issue in Plenty Investments Pty Ltd v Macedon Ranges SC (2016) VCAT 864 at [27].

51 Fifth, I accept that all things being equal, if the proposal went ahead, the new 43 hectare lots would be attractive as 'lifestyle lots' and that this can be expected to in practice push up land prices in this location. The subject land was described by:

• Council as being a nine minute drive from Wangaratta.
• Ms McGuiness as being 2 km from the edge of Wangaratta.

52 It is common ground that if the proposal went ahead, a dwelling could be placed on each new lot on an 'as-of-right basis, from a 'planning system' point of view. If the proposal went ahead, the likely resulting land speculation/pushing up of land prices on land zoned Farming Zone again is contrary to the aim of the productive farming use of the subject land. This is because of the risk that genuine farmers potentially interested in expanding their existing farm holdings[3] are 'priced out of the market' by potential 'lifestyle lot owners'. My findings on this issue mirror those of the Tribunal at [53] of Gibson v Bass Coast SC (2015) VCAT 857.

53 I also see a risk that if the proposal went ahead and the three new lots were purchased as 'lifestyle properties', possibly by a 'tree-changer', there could over time develop 'reverse amenity' conflicts between these new 'lifestyle occupants' vis-à-vis the on-going conventional farming activities occurring in this area.

54 Sixth, my concerns set out above are not assuaged or mitigated simply by the fact that there are many other lots in this broader area that are of a size that is in the range of 40 hectares or lower. On the one hand, I do not contest that this situation is factually the case, as was highlighted by Mr Haydon. On the other, this situation does not relieve the applicant of the need to demonstrate that the proposal enjoys an acceptable level of strategic planning support. That is to say, the fact that there are already a significant number of smaller lots in this area:

• Is not in itself a form of planning 'get out of jail card'.
• Does not mean that the normal Planning Scheme purposes and strategies for this site just get jettisoned and it becomes 'anything goes'. If the Victorian Planning System took this approach to resolving planning disputes in locations where the status quo is already somewhat compromised, the whole planning system would become 'open slather' and unworkable.

55 In making my findings set out in the four pages above, I rely on the credible agricultural productivity expert evidence of Ms McGuiness. I find that her key points were well made, carry major weight, and were not compromised in any fundamental way by the cross examination process.

56 In summary then, subject to my discussion below about the relevant case law, I find that the proposal has a fatal lack of strategic planning support. I do not see this fundamental position as altered in any particular way by Mr Haydon's point that the subject land is not designated as being 'strategic agricultural land' in the relevant planning framework - the site is still 'moderate agricultural land', it is zoned Farming Zone and it is currently used for productive cattle grazing.

• I do not see the fact that a similar planning permit was granted in 2007 as any 'game changer' with this proposal before me now. 2007 is a relatively long time ago in 'planning terms' e.g. it is reasonable to expect that there has been noticeable changes to the Planning Scheme setting since then.
• I have not placed any real weight on the Council draft Rural Land Strategy 2015, given the apparent uncertainty regarding its status.

58 On the one hand, I accept that every case on the potential subdivision of land zoned Farming Zone ultimately turns on its own facts. I also acknowledge that if you look hard enough, you can find cases going both ways, in terms of whether or not the Tribunal has ultimately approved such subdivision on land zoned Farming Zone.

59 However on balance, I find that my fundamental conclusion set out above is reinforced by the various previous decisions utilising a cautious approach to the potential subdivision of land zoned Farming Zone.

60 To avoid duplication, I refer to the various cases helpfully discussed at pages 31-36 of the Council written submission, which I accept are favourable for Council's case before me. I refer to Tarenidis & Anor v Greater Bendigo CC (2011) VCAT 2357, Bailey v Bass Coast SC (2014) VCAT 1480, Gibson v Bass Coast SC (2015) VCAT 857, Plenty Investments Pty Ltd v Macedon Ranges SC (2016) VCAT 864, Jackson v Hepburn CC (2020) VCAT 1433 and Indigo Wine Company Pty Ltd v Wangatta RCC (2020) VCAT 384.

61 Again to avoid duplication, I will mostly not attempt to quote from these various decisions, as these quotes are already helpfully set out at pages 31-36 of the Council submission.

62 But I will set out the following quote from the Tarenidis decision, as it is very on point here:

18. In my view, the fact that the Farming Zone allows lots of at least 40 hectares in size must be read in the context that the policy framework places a strong emphasis on protecting productive agricultural land and preventing subdivision which will lead to a concentration of lots not consistent with zoning purposes or which are likely to change the general use and character of the rural area.

63 This quote reinforces my point further above that just because the proposal here would satisfy the minimum 40 hectare lot size for a potential subdivision, should not be viewed as in itself a determinative factor on the planning merits. The Bailey decision is also an authority for this proposition.

64 I note that the Bailey decision discusses the tension that arises when it is proposed to subdivide an already economically-marginal farm i.e. won't this just make this 'commercial viability' existing major challenge even worse? The Gibson decision makes equivalent findings on this issue as I have indicated above.

65 Where Mr Haydon sought to rely on the comments of the Tribunal in Fola Park Pty Ltd v Warrnambool CC (2015) VCAT 1380 and also ESCO Pacific Pty Ltd v Wangaratta RCC [2019] VCAT 219, I regard these cases as ultimately turning on their own particular facts. In particular, it seems a huge stretch to compare this proposal (where the same basic farming use could be expected to continue if the proposed subdivision went ahead) to the circumstances in the ESCO case, where the Tribunal had to weigh up the planning benefits and disbenefits of the new solar farm being proposed.

66 In summary, whilst acknowledging that there is some variation in the relevant previous VCAT decisions in this area and that ultimately each decision turns on its own facts, I find that there is a strong body of relevant caselaw as I have discussed above, pointing to the need for a cautious approach to the proposed subdivision of land zoned Farming Zone. I consider this 'strong body of relevant caselaw' to reinforce my fundamental findings set out further above.

67 Having made the findings that I have set out above, I do not need to make any formal findings on the 'vehicle access from the south' issue. However I will note in passing that, as I said at the hearing, some real caution is needed here with assessing what planning permit triggers arise.

68 By way of context, Council indicated to me at the hearing that it believed that the vehicle driveway access off Lindner Road would involve tree removal/inappropriate tree root impacts with the southern road reserve and that this was an additional permit trigger (with Lindner Road itself being affected by a VPO2). However as I responded at that point of the hearing, the 'planning unit' for the purposes of the planning permit application is prima facie simply the subject land, unless a credible case can be made to expand that situation. It also needs to be said that it is the permit applicant putting forward the permit application, not Council.

69 The applicant's position here was that it should be able to gain southern vehicle driveway access by utilising gaps in the road reserve trees, such that the proposal did not involve any intended tree removal or any unreasonable tree root impacts.

70 In this situation, provided there is at least a legitimate argument that the vehicle driveway access can occur without any tree removal and without any unacceptable impacts on the relevant tree protection zones (TPZs), I would have thought (with one proviso) that the default position is that the proposal does not involve any permit trigger for tree removal on the road reserve. The proviso is that it is of course very appropriate to test the applicant's 'we do not need to remove any trees from the road reserve and will not unreasonably affect any relevant TPZs' position as part of processing the planning permit application and any VCAT appeal. If the applicant's position on this issue lacks credibility, I would have thought the VPO2 affecting the road reserve would then come into play as another permit trigger for the proposed driveway(s), as may Clause 52.17.

71 Otherwise for the reasons set out above, I have affirmed Council's Notice of Refusal to Grant a Permit.

[1] The submissions and evidence of the parties, any supporting exhibits given at the hearing, and the statements of grounds filed; have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.

[2] See page 1 of her report, but also noting that during her cross examination by Mr Haydon, Ms McGuiness conceded that it would alternatively be legitimate to describe the site as having a 'low to moderate agricultural versatility'.

[3] Recognising as I have indicated that a farmer can farm a range of suitable lots within an area, that do not necessarily need to be contiguous.