Victorian Civil and Administrative Tribunal|2004-11-05

Gillies v Mornington Peninsula SC [2004] VCAT 2218 (5 November 2004)

A permit is granted and directed to be issued by the Responsible Authority for land at 126A Bitter-Dromana Road, Merricks North for the development and use of group housing comprising two single bedroom, studio dwellings in conjunction with the use of the land for the purpose of agriculture and rural industry, generally in accordance with the endorsed plans. The Tribunal directs that the permit must contain the following conditions:

1 Prior to the commencement of buildings or works, amended plans must be submitted and approved by the Responsible Authority. When approved, the plans will be endorsed and form part of the endorsed plans under this permit. The plans must be generally in accordance with the plans submitted with the application but modified to show:

(a) The setback of each of the dwelling units from the property boundary.

(b) Areas set aside for parking of visitors vehicles.

(c) Details of the extent of vegetation removal required in association with the development of each dwelling unit, and of areas where an equivalent amount of vegetation will be regenerated or replanted.

(d) No vehicular access for visitors beyond the point where the entry road turns to the east.

(e) The removal of the hut adjoining the outdoor chapel.

2 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.

3 A sealed vehicle access between the property boundary and the existing road pavement shall be constructed to the satisfaction of the Responsible Authority.

4 A 375mm diameter reinforced concrete pipe (culvert) shall be placed under the crossover to allow road drainage to pass underneath the crossover.

5 Concrete drivable end-walls shall be constructed or laid at each end of the reinforced concrete drainage pipe.

6 All waste water must be contained onsite in accordance with Council's septic tank system requirements.

7 Areas used for the preparation, sale, packaging, storage or sale of food must be registered with Council under the Food Act 1984 (Vic).

8 The materials and finish of the buildings must be in accordance with the endorsed plans or other non-reflective materials or painted in muted shades of colours approved by the Responsible Authority and then maintained to its satisfaction.

9 The use of the studios shall be for short-term guest stay only.

10 A statutory declaration shall be forwarded to the Responsible Authority 12 months after the commencement of the use and at the end of every subsequent 12 month period itemising the dates of the individual occupancies of the two studios hereby permitted.

11 A static water source, such as a tank(s) must be provided the allotment.

12 The static water source(s) must meet the following requirements:

(a) A minimum of 20,000 litres on site static storage must be provided on the lot and maintained solely for fire fighting.

(b) The water source(s) must be located within 60m of each building.

(d) The static water source(s) should be readily identifiable from the building envelope or appropriate signage must point to water supply. All below ground water pipelines must be installed to the following depths:

(iv) All fixed above ground water pipelines and fittings, including water supply, must be constructed of non-corrosive and non-combustible materials or protected from the effects of radiant heat and flame.

13 If the static water source(s) is above ground the following additional standards apply:

(a) All above ground static water source(s) must provide at least one 64mm nominal bore, three thread/25mm, round male coupling.

(b) All pipe work and valving between the water source(s) and the outlet must be no less than 80mm nominal bore.

14 Three copies of firewater location drawings must be provided to CFA for approval.

15 Access to buildings must be designed to allow emergency vehicles access. The minimum design requirements are as follows:

(a) Curves in accessways must have a minimum radius of 10m.

(b) The average grade must be no more than 1 in 7 (14.4%) (8.1o) with a maximum of no more than 1 in 5 (20%) (11.3o) for no more than 50m;

16 If any accessways from the road to any building and/or water source(s), including gates, bridges and culverts is grater than 30m long, that accessway:

(a) Must be designed, constructed and maintained for a load limit of at least 15 tonnes, be all weather construction; and

(b) Must provide a minimum trafficable width of 4m, be clear of encroachments 4m vertically and have no obstructions within 1m of the formed width of roads.

17 If an accessway is longer than 100m a turning area for fire fighting vehicles close to the building must be provided by either:

(a) A turning circle with a minimum radius of 10m; or

(c) A T head or Y head with a minimum formed surface of each leg being 8m in length measured from the centre point of the head, and 4m trafficable width.

18 If the length of the accessway is greater than 200m, passing bays must be provided. Passing bays must be 20m long and must be provided every 200m, with a trafficable width of 6m.

19 A wildfire development plan is to be developed and endorsed, after consultation with CFA, as part of the permit.

20 The vegetation management areas as indicated in the wildfire development plan are to be maintained to the following standard:

A distance of 10m around any proposed dwelling must be maintained to the following requirements during the declared fire danger period to the satisfaction of the Responsible Authority:

* There must be no elevated fuel on at least 50% of the area. On the remaining 50% the elevated fuel must be at most, sparse, with very little dead material.

* Dry native shrubs must be isolated in small clumps more than 10m away from the dwelling.

* Trees must not overhang the roofline of any dwelling.

Vegetation in outer zones, as specified in the wildfire development plan, must be maintained to the following requirements during the declared fire danger period to the satisfaction of the Responsible Authority:

* There must be no elevated fuel on at least 50% of the outer zone area

* Clumps of dry native shrubs must be isolated from one another by at least 10m.

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

(a) The development is not started within two years of the date of this permit.

(b) 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 Tony Hyams on his own behalf and also on behalf of Mr Mario Albek

1 This was an application under Section 79 of the Planning and Environment Act 1987 to review the failure of the Mornington Peninsula Shire Council to determine Application No. P03/2616 within the prescribed time.

2 At the commencement of the hearing and pursuant to Clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act) Mr Rogalsky requested the Tribunal to amend the application for permit by substituting revised plans for those which had originally accompanied the application. The revised plans are identified as TP05, TP09, TP10 and TP11 dated June 2004 and prepared by Colin Mitchell. There being no objection and the Tribunal being of the opinion that the substitution was appropriate, the amendment was made in the manner requested.

3 The subject site is known as Manresa. Is located on the north side of the Bittern-Dromana Road approximately 1km to the west of Balnarring Road. The site is regular with a frontage of 108.8m and a depth of 371.9m giving an overall area of around 4 hectares or 10 acres. The land at present contains two dwellings, occupied by the existing owners Helen Gillies, Gillian Brett and John Brett, who are tenants in common. The dwellings are located towards the front of the site which has been cleared of native vegetation and contains lawns, gardens, an orchard and a pond. There is also a tennis court in this section of the site which is shown on the amended plans as being used as a propagation and seedling area. The land also contains a barn towards the centre of the site and there is a small building between the barn and the dwelling connected by a gravel track, designated as a bath house.

4 Approximately two-thirds of the land to the rear is native bushland. The adjoining property to the east contains a dwelling and is also heavily vegetated to the rear. The property to the west also contains a dwelling, this land however has been cleared for farming as have the other properties in the general area of the subject site.

5 The Tribunal was provided with a document which outlined the philosophy of the owners of the land who are working towards developing a self-sustaining agricultural enterprise and intend to produce a range of produce including flowers, honey, eggs and fruit to supply local restaurants and fruit and vegetable retailers, as well as for a stall of their own at the Bittern Market. The applicants are members of WWOOF (World Wide Opportunities On Organic Farms) an organisation that allows visitors to come and stay and work on rural premises in return for food and accommodation. The applicants also intend to offer paying accommodation to city dwellers to enable them to benefit from the activities in general and the rural ambience of the property.

6 The proposal as amended is for; the conversion of the existing barn on the land to a one bedroom, two level studio, alterations to the existing hut noted as bath house to be used as a bath and massage area and the construction of a new single bedroom studio cabin designated the water hut and located to the north of the existing dam.

7 The subject land was included in the Rural 1 Zone at the time when the application was lodged. The zoning has recently changed as a result of Amendment VC23 on the 19th of May to Green Wedge Zone 1.

8 There are three overlays applying to the subject land - the Environmental Significance Overlay Schedule 10 (Upland and Basalt Slopes) which applies to all of the subject land and the adjoining property. The Environmental Significance Overlay Schedule 17 (Streamlines) which applies to a tributary of the Merricks Creek which passes through and runs parallel to the northern half of the eastern boundary of the site and the Environmental Significance Overlay Schedule 28 (Mornington Peninsula Bushland) which applies to the northern two-thirds of the subject site which as has already been mentioned is heavily vegetated.

9 A permit is required under each of these overlays for the undertaking and development of works. Broadly speaking the purpose of the overlays is to conserve and enhance the character of significant landscapes in the area and to ensure that development is compatible with environmental values and minimises the loss of vegetation and the visual impact

10 The Responsible Authority in assessing the proposal is required to have regard to the State and Local Planning Policy Frameworks including the Municipal Strategic Statement and Local Planning Policies.

11 State Planning Policies of relevance to the proposal are:

* Clause 15.09 - Conservation of Native Flora and Fauna;

12 The proposal as modified does not involve buildings and works within the bushland area of the site. It was acknowledged by the Responsible Authority that the provisions of Clause 15.09 were no longer challenged by the proposal.

13 Clause 17.04 with respect to tourism encourages the development of a range of well designed and sited tourist facilities, including ... smaller scale operations such as host farm, bed and breakfast and retail opportunities. Facilities should ... be compatible with and built upon the assets and qualities of surrounding urban or rural activities and cultural and natural attractions.

14 Clause 17.04 with respect to agriculture has among its objectives to protect the agricultural base from:

Unplanned loss of high quality productive agricultural land due to permanent changes in land use and to enable protection of productive farm land which is of high quality and strategic significance in a local or regional context.

15 Among the matters that are required to be considered in assessing a proposal located on agricultural land is the compatibility of that proposal with existing uses on surrounding land.

16 The Municipal Strategic Statement deals with planning for rural areas at 21.09. The clause notes that rural with respect to the Shire of Mornington Peninsula includes:

* Areas that support the natural systems of the Peninsula, including stream catchments and (bushland areas) ...,

* Land used for agricultural and primary production and

* Landscapes in areas of recreational value and cultural significance.

17 The Clause at 21.09-2 seeks to support the use of rural land for farming to the maximum extent that is environmentally sustainable and consistent with maintaining landscape character and includes among its strategies, prevent the establishment of use and development that is incompatible with agricultural activity.

18 Clause 21.09-3 acknowledges the need for supporting and completing recreational activities in rural areas and includes the following:

Investment and recreational infrastructure that adds value to the region's natural resources both enriches the experience of users and benefits the local economy. This infrastructure may include visitor accommodation, interpretation centres, equestrian facilities, restaurants associated with wineries and the like.

To maintain the recreational role of the Peninsula by protecting the qualities of its landscapes, natural environment and cultural heritage.

20 Local policy at 22.07 with respect to commercial and industrial uses in rural areas notes the following:

* 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 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 ...

* Proposals for commercial ... development should be sited on lots with at least the minimum area required for the zone, unless it is clearly demonstrated that the proposed use will have no significant negative impact on the landscape character of the area, the amenity of adjoining land owners or on the agricultural use of rural land. The Responsible Authority must consider whether the site has sufficient area and dimensions to provide and maintain a suitable buffer area.

* All buildings and works must be designed to contribute to the existing landscape character and should not seek to demonstrate, 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 of the Environmental Significance, Landscape Significance and Vegetation Protection Overlays contained in this Scheme.

21 The decision guidelines required before deciding on an application to use or development land adjoining a highway, major road or tourist route, the Responsible Authority must consider it appropriate:

* The extent to which the application meets the objectives and directions of this policy.

* The extent to which any proposed variation of this policy can be applied on a consistent basis without undermining the strategic directions of this scheme.

22 Melbourne 2030 seeks: to limit the potential for urban type uses in Green Wedge areas and to limit further subdivision and development in rural areas unless it is related to agriculture, outdoor recreation or environmental protection. Clause 57 with respect to metropolitan green wedge land was approved on the 13th of June 2003 and contained the following provisions:

* To protect metropolitan green wedge land from uses which would diminish its agricultural environment, conservation, landscape, natural resource or recreation values.

* To protect productive agricultural land from incompatible uses.

* To ensure that the scale of use is compatible with the non-urban character of metropolitan green wedge land.

* To encourage the location of urban activities in urban areas.

23 The clause prohibits certain uses in rural areas, including accommodation other than a dwelling and group accommodation unless the Responsible Authority can be satisfied such accommodation is used in conjunction with agriculture, outdoor recreation, rural industry or a winery. The new zoning of the land contains similar provisions.

24 Group accommodation is defined in the Scheme as land in one ownership containing a number of dwellings used to accommodate persons away from their normal place of residence.

25 The application was received by the Responsible Authority in September 2003. The proposal as originally applied for was for three dwelling units and retained the barn for storage and packing purposes. Advertising was required at the direction of VCAT and three objections were received. The objectors' grounds of appeal are as follows:

* This rural holding is far too small to support three such units and the additional heavily increased population that would come with the proposed usage.

* The proposed purpose/use mostly ancillary to but not "rural" in themselves are not in keeping with the zoning nor the surrounding land uses.

* The proposed usage and related activities could not and should not be used to justify intensive housing development

* The development and usage are environmentally inappropriate indeed harmful nor are they in keeping with the surrounding rural countryside.

26 The matter was also referred to VicRoads and the Country Fire Authority who had no objection subject to conditions.

27 The matter was also referred internally to the Council's Natural Systems Planner, Environmental Health Department. The Natural Systems Planner advised that a more comprehensive assessment was required of the landscape to be removed and its habitat values showing how, what and where compensatory indigenous revegetation would be achieved on the land. Mr Neumann acknowledged that this was no longer a major concern with respect to the amended proposal. The Environmental Health Officer had no concerns subject to conditions with respect to the treatment of waste water.

28 Council sought further information and indicated to the applicant that it had reservations with respect to the proposal particularly given the limited area of land that would be available for the growing of produce. The Council's delegate subsequently resolved that had it been in a position to do so it would have refused a permit on the following grounds:

1. The agriculture activity conducted on the subject land is insufficient for it to be said that the proposed Group Accommodation use will be carried on in conjunction with that activity, as required under Clause 57 Core Planning Provisions for Metropolitan green Wedge Land.

2. The proposal is inconsistent with "Melbourne 2030".

3. The proposed Group Accommodation use does not satisfy the objectives of Council's policy for commercial and industrial uses in rural areas (Clause 22.07).

4. Variation of Council's policy for commercial and industrial uses in rural areas (Clause 22.07) in order to accommodate the proposed Group Accommodation use would establish a precedent which would undermine the strategic directions of the scheme.

5. The proposal represents an over-development of the site, particularly having regard to the two existing dwellings on the land.

29 The Tribunal having heard the submissions and visited the appeal site is of the view that the central issue in this mater relates to the consistency of the proposed development with the provisions and policy of the Planning Scheme. At the time of the Tribunal's visit none of the operators were present.

30 The thrust of the Council's argument with respect to the proposal that the land was insufficient size to support a level of agricultural activity that would justify the provision of group accommodation. It was their view that the land was already overdeveloped in that, being located in the Green Wedge Zone, it already contains two dwellings. More than one dwelling on a lot being prohibited in the zone.

31 Mr Rogalsky provided the Tribunal with a mission statement for the property including details of the produce being or intended to be produced on the land. It appears that at present most produce is being sold at the Bittern Market. The Tribunal was provided with two letters indicating that some herbs and flowers grown on the land are provided to local restaurants.

32 The accommodation units applied for limit numbers of visitors to a maximum of four people at any one time. One of the accommodation units is to be located in an existing building and the other within the garden section of the site. Neither of these two units will involve the loss of any vegetation from the land nor will they impact on the environmental and scenic values of the area being effectively screened from the road and from other properties.

33 The Tribunal finds that the nature and variety of the rural activity intended to be carried out on the land together with the commitment of the owners to sustainable agriculture is sufficient to justify the defining of the use as agriculture. The permitting of two small units for short-term stay for guests or for willing workers on organic farms in the Tribunal's view satisfies the requirement that the use be in conjunction with an agricultural activity. The Tribunal in particular finds the units proposed are not incompatible with the agricultural activity on the land which is small scale and intense.

34 It follows that the Tribunal is of the view that the proposal, as amended, is consistent with the provisions of Clause 22.07 despite the lot size not being the minimum area for the zone. In particular the Tribunal finds that there will be no negative impact on the landscape character of the area, the amenity of adjoining land owners or on the agricultural use of rural land. The Tribunal in particular notes that this lot is two-thirds bushland and that this bushland is intended to be preserved and enhanced by the present owners. The Tribunal finds the proposed development will go someway towards maintaining the sustainability of this property and hence the preservation of the bushland while providing a source of income and a source of labour for the range of horticultural/agricultural activities on the land and a range of rural experience and education for future guests.

35 The Tribunal noted on its visit that there was a small hut located near what appeared to be an outdoor chapel. The Tribunal was informed at the hearing that this outdoor chapel area would be revegetated in the future. The Tribunal considers it appropriate there be condition on the permit requiring the removal of the small hut in this area.

36 The Tribunal accepts the suggestion of Mr Rogalsky that the applicants be required to keep a log of occupancy of the two units to ensure the intent of the group accommodation provisions are honoured. The Tribunal notes the Council's preference for there to be a minimum land size associated with group accommodation and that they were currently preparing a draft policy to that effect. The Tribunal however finds there are special circumstances that are associated with this property sufficient to justify approval of the development as proposed.

Gillies v Mornington Peninsula SC [2004] VCAT 2218

At a glance

Court

Decision date

Source

Judgment (118 paragraphs)

Gillies v Mornington Peninsula SC [2004] VCAT 2218 (5 November 2004)

Parties