[2004] VCAT 1457

A permit is granted and directed to be issued by the Responsible Authority under the provisions of section 85(1)(b) of the Planning and Environment Act 1987 for the land at 57 Tubbarubba Road, Merricks North which allows the development and use of the land for Group Accommodation (2 single storey self-contained one-bedroom units) at 57 Tubbarubba Road, Merricks North, in accordance with endorsed plan(s) which accompanied the application.

The Tribunal directs that the permit must contain the following conditions:

1 The layout of the land, the size and type of the proposed buildings and works, including the materials of construction on the endorsed plan, must not be altered or modified without the consent of the Responsible Authority.

2 The materials and colour of the exterior finish of the buildings must be in accordance with the colour palette submitted with the application and must then be maintained to the satisfaction of the Responsible Authority.

3 The units must not be used for permanent occupancy.

4 All wastewater from the units must be disposed of to a suitable all waste water system in accordance with the Septic Tank Code of Practice - March 1996 to the satisfaction of the Responsible Authority.

5 This permit will expire if one of the following applies:

* The development is not started within two years of the date of this permit.

* The development is not completed within four years of the date of this permit.

The Responsible Authority may extend the above periods if a request is made in writing before the permit expires or within the following three months.

Mr Stuart Gibson LL.B. for his wife Ms Kate Gibson.

Mr Peter Newman, Planning Consultant of PLN Planning Pty Ltd.

1 This was an application under section 79 of the Planning and Environment Act 1987 to review a failure by the Mornington Peninsula Shire Council to make a decision on a permit (in Application No. P03/2911) for the land at 57 Tubbarubba Road, Merricks North to be used and developed for the purpose of Group Accommodation (2 single storey self-contained one-bedroom units).

2 The subject site is located on Tubbarubba Road behind a well vegetated road verge. The site has an area of 24.64 hectares and is currently occupied by the permit applicant as her family home and used for hay gathering, grape vine, and olive tree growing, with a proposed extension into exotic tree plantation (London Plane trees and Manchurian Pears) and a lemon grove.

3 It is proposed to develop three single storey up-market one-bedroom group accommodation units to supplement farming income. A gravel driveway will lead off the main driveway to these units, which will be located between and right in the middle of two vine groves.

i a coffee table booklet explaining the farming operations will be given to each guest;

ii farming tours will be conducted of the operations;

iv an application will be made for a B & B licence to enable sale of their wine to guests;

v each unit will receive a complimentary bottle of our wine;

vii a tree growing operation will also be developed - exotics such as London Plane trees, Manchurian Pears (to the east towards Balnarring Road) and a lemon grove;

viii units will be marketed as "cottages in the vines".

5 The subject land is zoned Rural under the Mornington Peninsula Planning Scheme. Within the Rural Zone a permit is required for both this land use , defined as group accommodation, and for buildings and works.

6 The land is also covered by Environmental Significance Overlay No 17, pursuant to which a permit is required for buildings and works. Other ESO's pertain to the subject land but affect other areas. However, the Responsible Authority agreed that the proposal had no impact on the ESO.

7 The relevant planning controls were fully set out at pages 6-10 of the Responsible Authority's submissions, which I adopt for the purposes of this decision.

8 Pursuant to cl. 57.01-1 of the Mornington Peninsula Planning Scheme, which was gazetted on 13 June 2003 under Am VC18, a use of land in the table is prohibited, unless a condition opposite the use is met.

9 Group accommodation is only permitted in conjunction with agriculture, outdoor recreation facility, rural industry or winery.

10 The principal issue for consideration in respect of this application was whether the three group accommodation units were 'in conjunction with agriculture, outdoor recreation facility, rural industry or winery'.

11 From a description of the way they would be operated in conjunction with the vineyards, olive groves, wine produced from the vineyard and the outdoor recreation associated with living among the vines, I am satisfied that this condition is met.

12 Other critical planning policies which I am satisfied are complied with are one of the rural zone purposes, which is to promote economic development compatible with rural activities, and the swathe of tourism-support policies in the planning scheme.

The objective (cl.17.04-1) is "To encourage tourism development to maximise the employment and long term economic, social and cultural benefits of developing the State as a competitive domestic and international tourist destination".

The general implementation measures (cl. 17.04-2) include the following statement:

"Planning and responsible authorities should encourage the development of a range of well designed and sited tourist facilities, including integrated resorts, motel accommodation and smaller scale operations such as host farm, bed and breakfast and retail opportunities ..."

Clause 21.09-3 Maintaining and enhancing landscape, cultural and recreational values

This clause emphasises the importance of the Peninsula as an area for informal recreation. It is acknowledged that there is a need for supporting facilities which complements the recreational activities. This may include visitor accommodation.

Clause 22.07 Commercial and Industrial Uses in Rural Areas

The Policy Basis (Clause 22.07-2) notes that a key objective of the MSS is to protect and conserve the rural landscape and character of the Peninsula as a major recreation resource for both the local and wider metropolitan community. This is combined with the objective of supporting the continued agricultural use of land by avoiding the establishment of uses that may exclude or limit legitimate rural activities and farm management practices.

The Policy Basis also notes that the MSS does, however, recognise that the recreational role of the Peninsula requires the provision of supporting facilities, which add value to the region's natural resources and assets, enriches the experience for visitors and provide benefits to the local economy. Accordingly, that it is appropriate to encourage the provision of facilities and services that generally support the ability to experience of the Peninsula's natural and cultural recreational values, including the provision of short term and home hosted accommodation, host farms and similar facilities.

* Applications for commercial uses in rural areas should be limited to those which demonstrate a direct link to rural activities or the provision of accommodation, services and facilities linked to the Peninsula's role as an area providing opportunities for outdoor and unstructured recreation, associated with the Peninsula's natural and cultural heritage values. Uses which may be considered include the provision for the sale of farm produce grown on the property and the provision of home hosted accommodation.

* Applications must be compatible and integrated with the primary land use on the site and that of surrounding land.

* All buildings and works must be designed to contribute to the existing landscape character and should not seek to dominate, limit or reduce views available from public areas, including road sides.

* Applicants for commercial development must demonstrate that their proposal addresses a need or gap in the tourist industry and is not dependent on the development of other residential or commercial activities on the site or in the locality.

* The siting and design of all buildings and works must have particular regard to the provisions the Environmental Significance, Landscape Significance and Vegetation Protection overlays contained in this scheme.

14 There is strong policy support for this modest group accommodation proposal.

15 Mr Stuart Gibson, on behalf of his wife, Katherine Gibson, sought costs against the Responsible Authority pursuant to the VCAT Act 1998, s.109 (3)(a)(ii); s.109 (3)(a)(v); s.109 (3)(d); s.109 (3)(e).

16 Mr Gibson is admitted as a barrister and solicitor of the Supreme Court of Victoria and of New Zealand but does not have a practising certificate. He claimed, on a solicitor/client basis, 10 days @ $1500 totalling $15,000.00 not as a solicitor but because he charges this hourly/daily rate out as a business consultant.

17 VCAT Act 1998, s.109 (3)(e) enables the award of costs for any other matter the Tribunal considers relevant.

18 I set out the basis on which he sought costs and my reason for not awarding costs, under each head of claim.

VCAT Act 1998, s.109 (3)(a)(ii) - failing to comply with this Act, the regulations, the rules or an enabling enactment.

19 The combination of the Planning and Environment Act 1987, s. 79 and r. 30(1) of the Planning and Environment Regulations 1998 allow a review if the responsible authority has not made a decision within 60 days from the date of lodgement, which date expired on 12 December 2003.

20 Mrs Gibson lodged her application for review with VCAT on 19 February 2004, not losing much time, given the intervening Christmas and summer vacation.

21 Mr Newman for council advised that council sent the following letter to Mrs K Gibson on 29 December 2003 alerting her to delays. In my opinion, this letter alerted Mrs Gibson to the need to protect her rights under Planning and Environment Act 1987, s.79, by keeping a watchful eye on her timelimits.

Your application for a planning permit has been received by Council and allocated to Helen Francis, for consideration.

Due to the large volume of applications currently being received and the recent departure of several members of staff, some delays are being experienced in the processing of applications.

Council is currently seeking further resources to address the volume of applications in hand. However due to a shortage of qualified experienced planners this problem may not be resolved in the short term. All efforts to obtain resources are being undertaken.

Please complete the attached advertising authorisation and return it to Council if you have not already done so. Your application may not need to be advertised, however if advertising is required the completion of the authorisation form will enable advertising to be undertaken as soon as possible. Any fee will be required to be paid at that stage.

Regrettably the current situation may prevent Helen Francis from contacting you in the immediate future, however please be assured your application is being assessed.

To enable efficient processing of applications, it would be appreciated if you would limit the number of people contacting Council to determine the status of the application.

Thereafter, if you have any queries regarding your application please contact Helen Francis on the above telephone number and quote the application number.

22 Mr Stuart Gibson says that his wife incurred costs of his services as a lawyer in rendering advice about:

i the Responsible Authority's failure to decide within the 60 day prescribed period, and

23 Mr Gibson's claim for legal costs of ten days @ $1500 per day, totalling $15,000 was for preparation of the entire proceeding.

24 However when I asked for a copy of the invoice which he would have rendered his wife, I was advised he had not yet rendered same. When I asked for the amount of costs which Mr Gibson was claiming for his wife being "unnecessarily disadvantaged", as required by s.109(3)(a), Mr Gibson advised he was dropping that head of claim.

Failing to serve a copy of conditions within the time limits

25 Pursuant to a combination of Practice Note 10 and 4.5, the Responsible Authority should, but did not, serve conditions five days before the hearing. In fact they were only served on the day.

26 When I asked Mr Gibson how his wife was unnecessarily disadvantaged, he advised they could have prepared less thoroughly.

27 I explained to Mr Gibson that his was a wrong assumption, as they only become relevant if he is successful and until the case is over, there is nothing to say either way.

28 Needless to say, this ground was not made out either.

Failure of Responsible Authority to serve a copy of the PN2 Notice on him.

29 I advised Mr Gibson that there was no obligation by the Council to serve a copy of its PN2 information on anyone other than the Tribunal, under the ordinary PN1 requirement to serve a copy of all correspondence on all parties since the PN2 information is an exception to the PN1 rules.

30 Needless to say, this ground was not made out either.

The VCAT Act 1998, s.109(3)(a)(v) - attempting to deceive another party or the Tribunal.

31 The deception relied upon by Mr Gibson is the Responsible Authority's letter dated 1 April 2004 requiring public notice of the application to names and addresses that Mr Gibson does not comply with VCAT directions in its letter dated 25 March 2004, ie to "adjoining, abutting and opposite properties".

32 Firstly, Mr Gibson complained that as No. 38 lies diagonally opposite, it should have been excluded. This is not the approach that the Tribunal sanctions.

33 Secondly, Mr Gibson complained of phantom addresses that do not exist, for example notice to the occupant of 218 Balnarring Road which is vacant land. Again, I had to explain to him that the responsible authority has no intention to mislead or deceive. They need to work off their rate records and the fact that they adopt a belt and braces approach is to be commended.

34 Mr Newman advised the rate records indicate a three lot subdivision, and they cannot know whether it is occupied or not.

35 I explained to Mr Gibson the responsible authority's stringent obligations under s.52 Planning and Environment Act 1987 regarding notification which required it to adopt a conservative approach. Otherwise it would find itself (and has in other instances found itself) back at the Tribunal facing a damages claim from a s.87 cancellation of permit application by distraught neighbours who were never served with notice of a town planning application.

36 Mr Gibson claimed for an intention to invoice his wife for a half day amounting to $750 + GST for convincing the Deputy Registrar (by photos) that service could not be effected because of phantom addressees, for example, the Occupant of 218 Balnarring Road, Occupant of 52 Tubburubba Road, and the Occupant of 52A Tubburubba Road.

37 It was difficult to understand how such a high amount could be justified, given that his wife could have attended to service and proof of service herself and did not need legal intervention.

38 As no intention to deceive has been made out, there is no basis for awarding costs against the council.

VCAT Act 1998, s.109 (3)(d) - the nature and complexity of the proceeding, and s.109(3)(e) "any other matter".

39 Mr Gibson says there was no good argument for refusing a permit. The Responsible Authority maintains there is an argument about whether the use is "in conjunction with agricultural or outdoor recreation" under cl. 57.01-1.

40 I agree with the responsible authority that this case falls clearly within the range of matters upon which it is reasonable for persons to disagree. The issue was not a lay down mesieurs. The Green Wedge and rural zone policies are stringent and require protection by the responsible authority. They fulfilled no more than their obligation, and there were also objectors who withdrew only at the last minute when Mr Gibson explained his proposal more clearly to them.

41 Needless to say, this ground was not made out either.

42 In summary I have found that the costs claim is unworthy but a permit should be issued by the responsible authority in accordance with my above order.