Oral reasons for the decisions were given at the hearing.

The applications relating to the eucalyptus plantation are an application for review[1] by Mr Favero, Mr Bone and others against the grant of a permit by Corangamite Shire, and an application for review by the permit applicant, Midway Pty Ltd against conditions in the permit[2].

The grounds of the objections to the grant of the permit related to

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The use of the land for timber production,

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Herbicide and pesticide use,

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Impact of downstream water quality and on flora and fauna, and

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Reduction of downstream water flow as a result of timber plantations.

The grounds of the conditions application for review were that the conditions related to the use of the land for timber production, which is an as of right use in this Rural zone area, whereas the only requirement for a permit arises under the Environmental Significance Overlay - Schedule 1 which requires a permit for buildings and works in the area subject to the SLO along the alignment of Kennedy's Creek.

In the rural zone provisions of the planning scheme Timber Production is an as of right Section 1 (permit not required) use[3] subject to a number of conditions, the most significant of which is that it must meet the requirements of clause 52.18, which relates to timber production and includes a provision in that all timber production must comply with the Code of Forest Practices for Timber Production, Revision no. 2 November 1996[4].

Clause 52.18 does refer to permits for timber production, but it does not require a permit in this case. The definition of Timber Production as a land use term in clause 74 is land use to propagate, cultivate, manage and harvest timber, included in the nesting provisions under crop raising.

Mr Howard submitted the only works to be done for the establishment of the plantation and for which a permit is required is the preliminary ripping and mounding of the land to establish the sites for the trees to be planted, only involving 20% of the area and consisting of mounds of 2-3 cm high in rows 4 m apart centre to centre and 2.6 m between. There may also be spike planting where the mounds are circular - one for each tree in rows. I find such works are similar to ordinary agricultural activities undertaken on any farm, such as ploughing.

Mr Bone raised general issues about the impact of timber plantations in the area generally such as the impact on water quantity and quality downstream, on wetlands, as to the migration of chemicals and aerial spraying, but was not able to identify that the proposal involved any specific breach of the Forestry Code. He suggested in some other areas, and in particular some other plantations managed by Midway, there had been some spraying and planting too close to waterways or within buffer zones, but no specifics were given to enable me to determine whether any beaches of the Code had occurred.

Dr Tomkin, a chemical engineer and consultant to the timber industry and Midway made some submissions. He could not as a consultant to Midway be regarded as an independent expert witness, but despite that I accept his statements as expert and bona fide and important information for the tribunal. He described the regime of chemical treatment, mainly in the initial planting phase, the chemicals are bio-degradable and not likely to migrate through the soil. He said the use of chemicals in forestry is strictly controlled, unlike their uncontrolled use in general agriculture, such as a dairy farm, where the quantity of chemicals applied is likely to be much higher. He considered forestry is a minor use of chemicals and most chemicals in the rural landscape are used for agriculture and horticulture.

On the basis of his submissions I find there is unlikely to be any significant chemical run-off from this land. I note there was no objection to the application made by Southern Rural Water and the Catchment Management Authority.

Council is naturally concerned with these issues but has not produced any expert evidence. It has imposed conditions regulating herbicide and pesticide usage but not in a comprehensive way. My view is that the management plans tendered and compliance with the Code will produce a satisfactory outcome for this forestry operation, and that if breaches of the Code occur, whether as to herbicide and pesticide usage or work in buffer zones, council has the power and responsibility enforce the Code.

Whether or not there is an impact on water flows and quality as a result of the wide spread growth of forestry plantations in the area, an increasingly potent community political issue, the tribunal can only consider the impact of the matter for which a permit is required, which is the works to establish of the mounds or rows in which to plant the trees in the area subject to SLO1. Otherwise the establishment of the timber plantation and the use of the land for timber production is an as of right use not needing a permit. There may be other means of planting trees without these works. There is no material before me to these works are likely to increase chemical runoff, cause erosion or affect the volume or quality of downstream water flows.

Accordingly I find that the grounds for the application for review against the notice of decision to grant the permit are not made out and accordingly subject to my decision on the conditions appeal, I affirm the Council's decision to direct that a permit issue in accordance with the notice of decision to grant a permit.

In the conditions appeal, Midway challenges a number of conditions in the permit.

The test for the validity of a condition is well established by authority. The condition must be fairly and reasonably related to the permission for which a permit is required. I have found a permit is not required for the establishment on and use of the land for timber production, but only for works within the ESO1 area.

Mr Howard submitted that as this was a works permit application, conditions relating to continuing use were inappropriate. I do not entirely agree, as in some cases, it is appropriate to impose conditions in a buildings and works permit relating to the continuing use of the project, eg, maintaining landscaping in a housing development.

However the works are relatively minor agricultural works. Once the trees are planted and growing, the impact of those works will disappear. I cannot find a reasonable relationship, nexus or connection between the conditions appealed against and the permission required, although they may have been appropriate if permission was needed to establish and maintain the plantations or engage in timber production.

The tribunal must however consider the overall outcome and not take an over technical view. From the submissions of Mr Howard, Dr Tomkin and his colleagues as to the establishment and conduct of the plantation and the use of pesticides and herbicides, I am satisfied that if the Code is applied and enforced the outcome will be satisfactory and the conditions sought by council are unnecessary. The purpose of codes such as this is to enable agricultural practices to proceed with a lower level of regulation. I see no reason for instance, why there should be no planting or harvesting within the flood inundation level. No information given that this will either impede flood flows or worsen flood damage. Low level land would be suitable for timber plantation and harvesting and the material produced indicates that disturbance of land in the flood plain will be minimised. The absence of objection by Southern Rural Water and the Catchment Management Authority supports this conclusion.

I will allow the conditions appeal, and direct that the relevant conditions be deleted from the permit.

My decision is to set aside the Council's decision and to allow the subdivision of the land into 3 lots in accordance with the Plan of Subdivision, thus allowing the excision of 2 lots with existing dwellings from the plantation lot.

Relevant policy is the provisions of the rural zone and clause 22.03-3 of the local provisions. In the rural zone provisions clause 35.01-4 contemplates the grant of a permit to create smaller lots less than 40 ha, each of at least 0.4 ha, in a number of circumstances, one of which is to create a lot for an existing dwelling, and only one additional lot which does not contain a dwelling maybe created.

These requirements are met in this case. Both house lots are in excess of 0.4 ha. One is 5.94 ha and the other 1.08 ha. There is no suggestion to me that clause 35.01-2 is not complied with as to its provisions as to access, on site treatment of waste water and water supply. Mr Howard's analysis of the application of the decision guidelines and clause 22.01-2 in his submission satisfies me they are met.

The policy basis of clause 22.01-2 is that house lots excisions can be detrimental to the efficient operation of farming, if the lot provided does not relate to the farming activity. There is no doubt here that the lot for the dwellings will not relate to the timber production farming activity, but the question is will the housing lots be detrimental to that use. I am satisfied from Mr Howard's extensive written submissions that there will be no detriment and most likely a benefit.

These are existing dwellings of good quality already available for housing. To not allow the subdivision would most likely result in the destruction of one which would be a loss of valuable rural infrastructure.

Their use and separate ownership will provide accommodation and facilities for people seeking different lifestyles, engaged in tourism activities or working nearby in towns or in rural industries, and thus contribute to the rural economy.

The disturbance created by the forestry activities will be only at intervals of 10-15 years and in the initial establishment stage. At other times there will be sporadic and periodic use of the road between the residential lots for maintenance and inspection of the plantation. There are adequate separation distances between the dwellings and the plantation. It may be desirable that a valuable timber plantation have nearby residents for fire alert and protection.

I find that the policy bases and objectives of Clause 22.01-2 are met. I consider the excision is consistent with the purposes of the rural zone, that it is compatible with the utilisation of the land for sustainable resource use and that the subdivision is designed in a manner which does not prejudice surrounding rural production activities.

[1] Application for review P363/2005 under s 82 Planning and Environment Act 1987 against a decision to grant a permit

[2] Application for review P893/2005 under s 80 Planning and Environment Act 1987 against conditions in a permit.