Olives will be harvested in about 4 years when the trees are mature.
The olive grove has too few trees for a commercial operation.
The olives will be taken offsite for crushing and processing for oil.
Some oil will be used by the Applicant and some sold offsite. At a maximum of 15 kg harvested olives per mature tree and as about 6 kg of pressed olives is needed for one litre of oil, a maximum of only 700 litres of oil could be produced per year.
The olive grove will be drip irrigated for next 2 years from a bore on the Girdwood land.
No fertilizers, blue metal crusher dust or lime will be used.
Olive trees require little spraying and much less often than a vineyard.
Sheep will organically fertilize the olive grove when it is mature.
Minimal pruning of the trees will be necessary and will be done by hand.
The trees will be harvested by hand by family members and no labour will be employed. Very little time will be taken in tending the olive grove.
[2]
As previously stated by the Tribunal in relation to the Girdwood land, the purpose of the LDRZ is 'first and foremost about living with all of the amenity characteristics that flow from that.'
The land is being used for two purposes. Residential use was the original use which will continue.
An olive grove is not a prohibited use. A permit may be granted, but only if acceptable outcomes are produced, having regard to State and local policy, zone purposes and decision guidelines.[4]
The proposal is not a large or intensive use of the land, having regard to the information in paragraph 8, above. It will require relatively little tending (particularly with machinery) and little application of spray or fertilizer. Some machinery will be needed to suppress grass and weeds, but this is also needed for nearby lots used solely for residential use. I do not consider it an incompatible use in a LDRZ.
Local policy requires consideration of street presentation, tourism impacts and civil pride.[5] The existing dwelling is well setback from Jones Close (about 50 m). It is surrounded by an ornamental garden. The streetscape presentation of the land is not overwhelmingly agriculture. There is a front fence consisting of 2 m high white-painted, rendered brick piers with visually permeable steel inserts between the piers mounted on a low line of bluestone pitchers. The pitchers continue along the central drive. There are ornamental plantings at the entrance to the driveway and along the drive.
Consequently, although the olive trees are planted between the dwelling and Jones Close, the street presentation is as much urban (and appropriate in a LDRZ setting) as non-urban.
In Filiposki v Murrindindi SC,[6] the Tribunal required the forecourt to the dwelling on the Girdwood land (ie part of the frontage, being the area immediately between the dwelling and Girdwood Court) to be an ornamental garden rather than planted with vines.
This is unnecessary in this case (at least for the area on the west side of the driveway, as sought by the Council, comprising 70 of the olive trees) because a grove of mature olives has a better streetscape presentation in a LDRZ than vines. Olives were planted in the 7 m wide side setback to the Davis' land as an appropriate screen to the vineyard.
I do not consider a 7 m side east and west boundary landscaped buffer is required. First, as stated above, an olive grove has a different and more acceptable presentation in a LDRZ. Second, the adjoining land on the east and west side boundaries are well planted and provide an adequate buffer to the olive grove. Third, the Davis land is oriented to the northeast. An outbuilding is located between the Davis dwelling and the east side boundary of the land.
[3]
The Applicant's past conduct and his adjoining agricultural operations
[4]
The Council and Mr and Mrs Davis are concerned about the past conduct of the Applicant. The Applicant removed remnant vegetation on the land before planting the olive trees, and he planted the olives after being warned by Council staff that he first needed a permit.
I do not share the Council's concern that the grant of a permit would set a precedent for similar conduct in establishing an olive grove on other nearby land in the LDRZ. Whether the Council deals with a potential contravention by seeking an enforcement order or requiring a permit application is a matter for the Council in the circumstances of each case.
As well, the Council asserted that the Applicant represented the vineyard was not for commercial use but wine from the vineyard is being sold at retail outlets in Alexandra. From a planning viewpoint, the relevant issue is not whether some of the wine is sold (it is implicit that produce from land used for agriculture, such as a vineyard, may be sold for profit) but whether the selling occurs at such land (which there is no evidence occurs).
Mr and Mrs Davis and other objectors were concerned about the original removal of remnant vegetation, but the scheme allowed such removal without the need for a permit.
The Council is also concerned about the precedent of the agriculture use of the Girdwood land being 'expanded' by the olive grove into a 'single commercial operation', with a consequential change to the 'settlement pattern' of the LDRZ.
Although the Applicant's family may be involved in tending the vineyard and the olive grove and the olive grove may be watered from a bore on the Girdwood land, the activities will be largely separate. There appears to be no vehicle access between the Girdwood land and the land. The two parcels front different roads and the topography is such that only each parcel is visible from its respective street frontage.
Mr and Mrs Davis are concerned about the vineyard and the olive grove abutting their land on both the south and west side. In itself, this is no valid grounds to refuse a permit.
[5]
A number of other matters about permit conditions were raised by the parties. With respect to those matters, other than those already addressed above, I summarise my conclusions as follows:
Although the proposal is not an intensive use, a management plan (as required by the Tribunal for the vineyard in Filiposki v Murrindindi SC) must be prepared. This will help ensure the use remains non-intensive.
Spraying should not be prohibited, but should be subject to a notice system, as required for the vineyard.
The construction of the vehicle crossing should be upgraded.
There is no need for a weekly rubbish removal requirement for the olive grove.
No sales of olives products, including oil, may take place on the land without the consent of the responsible authority.
There should be a limit on the number of non-residents of the land employed to tend the olive grove, akin to a home occupation, except during harvests. This will allow the owner and his family, who reside nearby, to work together to harvest the olives.
A condition limiting hours of operation is unnecessary for the tending of a small olive grove, and a general amenity condition is satisfactory.
[6]
The responsible authority will be set aside and a permit granted subject to conditions.
[7]
(1) Within one month of the date of this permit, amended plans to the satisfaction of the Responsible Authority must be submitted to the Responsible Authority for approval. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three (3) copies must be provided. The plans must be generally in accordance with the plans submitted with the application and must show all development on the land and the location of all olive trees.
(2) Within two months of the date of this permit, a Management Plan must be submitted to the Responsible Authority for approval, setting out the following:
If, when and how the olive trees will be sprayed.
How the olive trees, particularly when immature, will be watered, including the source of water.
How and when olives will be harvested, including the anticipated number of people involved in harvesting, what equipment and machinery will be employed, whether the olives will be stored on the land for any period, and how the olives will be collected and sent for processing.
How the olive trees will be protected against animals, bird or natural elements.
How weeds in the olive grow will be suppressed.
[8]
When approved, the operation of the olive grove must be in accordance with the management plan. This plan must not be varied without the prior consent of the Responsible Authority.
[9]
(3) Except while olives are being harvested, no more than two persons in addition to the residents of the property shall work on the property at any one time.
(4) The vehicular crossing must be upgraded to accommodate the entry and egress of vehicles associated with the use, to the satisfaction of the responsible authority, and must be sealed either spray seal or concrete from the edge of bitumen to the front boundary of the land. Before works commences, consent must be obtained from the Murrindindi Shire Council in accordance with the Road Management Act 2004. The works must be completed within 12 months of the date of the permit, or within such extended period as the Responsible Authority may permit if the owner applies for an extension before the required date of completion.
(5) The land is to be drained to the satisfaction of the responsible authority.
(6) The use or development hereby permitted shall not cause nuisance or injury to, or prejudicially affect the amenity of the locality, by reason of the transportation of materials, goods and commodities to and from the land, the appearance of any building, works, or materials on the land, the emission of noise, vibration, smell, fumes, smoke, vapor, steam soot, ash, dust, waste water, waste products, grit, oil or the presence of vermin or otherwise.
(7) The spraying of olive trees may only be carried out if:
the measured wind speed is between 0 and 5 km per hour, and
prior written notice of at least 24 hours is given to the occupiers of adjoining land being lots 42, 44 and 46 of LP 142141, unless the Responsible Authority informs in writing the owner of 15 Jones Close that notice is not required to be given to the occupier of one or more of the occupiers of those three lots.
(8) No olives or olive products, including olive oil, may be sold from the land, except with the consent of the Responsible Authority.
[10]
[1] I have considered all submissions presented by the parties although I do not recite all of the contents in these reasons.