Gleeson v Moyne SC [2009] VCAT 1635

1. The decisions of the Responsible Authority are set aside.
2. In permit applications PL08/437 and PL08/438 no permits are granted.

Use and development of a single dwelling on each of Lots 1 and 4.

Section 82 Planning and Environment Act 1987.

Cl. 35.07-2 & 4 (use of land for a dwelling on a lot less than 40 ha and buildings and works in the FZ).

Clauses 11, 17.05, 21.03, 21.04, 21.05, 21.07, 22.03-4, 22.03-5 and 65.

I inspected the review sites and locality both before and after the hearing.

The two lots form part of larger landholding of approximately 15 hectares that has been in the one ownership since 1946 and has been operated as a dairy farm by the current owner and her husband. Lot 1 has an area 3.3 hectares and Lot 4 has an area of 3.96 hectares. The farm is located north of the former railway line (now rail trail) and has frontage to both Scotts Road and Duffus Street. The two lots affected by these applications are located on the east side of Scotts Road/Duffus Street and hence separated from the other three lots and the existing house located near the western end of the property.

Historically the area was developed for small farms and contains hundreds of small titles, many of which form part of larger landholdings. In more recent times dwellings have been built on some of the smaller land parcels, although larger farms still operate in the area, including the dairy farm operated by Mr Gleeson to the south along Scotts Road. However the area is beginning to develop a rural lifestyle character particularly further east towards Koroit.

Both Scotts Road and Duffus Street are narrow bitumen sealed roads which intersect with the Penshurst-Warrnambool Road to the north. That road provides good access to Koroit located around 2 kilometres to the east.

1. In some ways this is a relatively straightforward case about whether two small lots forming part of larger holding in the Farming Zone should be each used and developed for single dwellings. The two lots are each less than 4 hectares in area and are being sold by the elderly owner to help fund her aged living requirements. The two dwellings are each single storey, four bedroom, brick walled, pitched roof and are to be constructed by Simmonds Homes.
2. I want to be clear that these two applications have not been refused because of the design and location of the dwellings or because of the physical constraints of the land. Instead the reason these proposals have failed is because of policy concerning the use of rural land for non farming purposes.

Does planning policy support dwellings in the Farming Zone on these sites?

1. Submissions by the parties all made reference to planning policy in support of the respective positions to oppose or support dwellings on these two lots. Reference was also made to a rural housing and settlement strategy currently being undertaken by Moyne Shire Council and Mrs Carey suggested that:

there are a number of areas in the shire where the zoning of the land does not reflect the use of land.

1. She also tabled a 'zoning review' map prepared by Form and Function Building Design which identified a number of rural residential areas to the southwest and west of Koroit. The plan has no formal status other than as a potential input into the current rural housing and settlement review. While Mrs Carey may consider that the zoning does not reflect the use of land, it is not my task to review the planning controls and I must take the Planning Scheme including zones and all relevant policies as they exist at present. The review is clearly at a very early stage and no report or recommendations have been considered by Council.
2. Mr Smith also took me to a number of previous Tribunal decisions to support points raised in his submission.[1]
3. Having heard and considered the submissions, photographs and plans presented by each of the parties, I have found that the proposed use development of these two lots for dwellings is not consistent with the decision guidelines of the Farming Zone or the provisions of State and Local Planning Policy Frameworks in relation to the use of rural land for dwellings.

1. The starting point for any assessment is the Farming Zone purposes and related provisions. The six zone objectives in one way or another all aim to provide for and encourage agriculture and the agricultural use of land, and to limit any adverse affects non agricultural uses, particularly dwellings, will have on the use of land for agriculture. An application to use a lot for a dwelling must be accompanied by statement explaining how the proposed dwelling responds to the decision guidelines. Clause 37.07-6 requires consideration of both the decision guidelines in Clause 65, as well as those in 37.07-6 which are grouped into five issues as follows:

• The State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.
• Any Regional Catchment Strategy and associated plan applying to the land.
• The capability of the land to accommodate the proposed use or development, including the disposal of effluent.
• How the use or development relates to sustainable land management.
• Whether the site is suitable for the use or development and whether the proposal is compatible with adjoining and nearby land uses.

• Whether the use or development will support and enhance agricultural production.
• Whether the use or development will permanently remove land from agricultural production.
• The potential for the use or development to limit the operation and expansion of adjoining and nearby agricultural uses.
• The capacity of the site to sustain the agricultural use.
• The agricultural qualities of the land, such as soil quality, access to water and access to rural infrastructure.
• Any integrated land management plan prepared for the site.

• Whether the dwelling will result in the loss or fragmentation of productive agricultural land.
• Whether the dwelling is reasonably required for the operation of the agricultural activity conducted on the land.
• Whether the dwelling will be adversely affected by agricultural activities on adjacent and nearby land due to dust, noise, odour, use of chemicals and farm machinery, traffic and hours of operation.
• Whether the dwelling will adversely affect the operation and expansion of adjoining and nearby agricultural uses.
• The potential for the proposal to lead to a concentration or proliferation of dwellings in the area and the impact of this on the use of the land for agriculture.

• The impact of the proposal on the natural physical features and resources of the area, in particular on soil and water quality.
• The impact of the use or development on the flora and fauna on the site and its surrounds.
• The need to protect and enhance the biodiversity of the area, including the retention of vegetation and faunal habitat and the need to revegetate land including riparian buffers along waterways, gullies, ridgelines, property boundaries and saline discharge and recharge area.
• The location of on-site effluent disposal areas to minimise the impact of nutrient loads on waterways and native vegetation.

• The need to locate buildings in one area to avoid any adverse impacts on surrounding agricultural uses and to minimise the loss of productive agricultural land.
• The impact of the siting, design, height, bulk, colours and materials to be used, on the natural environment, major roads, vistas and water features and the measures to be undertaken to minimise any adverse impacts.
• The impact on the character and appearance of the area or features of architectural, historic or scientific significance or of natural scenic beauty or importance.
• The location and design of existing and proposed infrastructure including roads, gas, water, drainage, telecommunications and sewerage facilities.
• Whether the use and development will require traffic management measures.

1. Local policy at Clauses 21.03 and 21.04 recognise the heavy reliance and importance of agricultural activity on the Shire's economic base and notes that the demand for low density residential and rural living lifestyles has the potential to fragment productive agricultural land. The Strategic Framework Plan at Clause 21.04 identifies the area south of the Penshurst-Warrnambool Road as intensive farming and notes that it is to be protected from inappropriate development including large scale rural residential development. Elsewhere reference in made to rural residential housing being restricted on valuable farm land.
2. These themes are further developed in Clauses 21.05, 21.07 and 22.03-4. Clause 22.03-5 is even more specific about the need to control housing on lots of less than the zone minimum. The three objectives all focus on the need to protect valuable farmland by limiting houses on such land and policy for intensive farming areas is quite explicit that:
   • The construction of houses on lots greater than 2.0 hectares and less than the minimum specified in the schedule to the zone will be discouraged.
3. This is not a municipality where the Planning Scheme is unclear or ambiguous about what Council (and the community) are trying to achieve within the rural areas. I accept that Council has in other instances adopted a different approach to these policies, and has even approved dwellings on small lots to the east, but I consider that every approval of a dwelling on a small lot has the cumulative potential to undermine local policy, which throughout has a theme of limiting hobby farm/rural living in rural areas and on existing small lots.

1. In addition to the consistent themes set out in local policies, I am not satisfied that on balance the relevant decision guidelines in the Farming Zone are met because the proposed development does not support the rural use of land, the dwellings are not reasonably required for the operation of the rural activity conducted on the land, the dwellings maybe affected by nearby agricultural activities and the dwellings (or more accurately the residents living in them) may adversely affect the operation and expansion of those nearby agricultural uses. The land is being used (or can be used) for some grazing at present. I accept that the size of the lot is small and that it could not, on its own, provide enough income for an individual or family. However that does not mean that small parcels cannot be used for agricultural purposes - as part of a larger enterprise involving scattered parcels of land, as an 'out' paddock for nearby farms or as a 'hobby farm' where the owner lives and works elsewhere and their main income is derived from non-farm sources.
2. The small lot size and the existence of many small lots in the area does not in itself justify converting the land for rural residential or rural living purposes. If that were the case then thousands upon thousands of small Crown Allotments in the Farming Zone across Victoria (and many hundreds within Moyne Shire) could potentially accommodate dwellings without any regard to strategic planning considerations that seek to direct dwellings into specified areas. The existence across Victoria of thousands upon thousands of small, often poorly sited crown allotments is a major planning issue in terms of preventing inappropriate incremental development in rural areas, remote from services and often with significant land management problems. Moyne and the area around Koroit is no exception and Council has attempted through local policies to limit the widespread use of such allotments for hobby farm and rural living purposes. Local policy set out above provides clear directions about the use of small rural lots and it is for these broad strategic land use reasons that I have rejected dwellings on these two lots.
3. I accept that there are few physical constraints to the construction of a dwelling on this site but in my view an assessment and discussion about development issues misses the fundamental 'use' threshold. I also understand that sale of the lots will provide funds to Mrs Carey's mother and that those funds would be greater if the land was sold for rural lifestyle purposes. But these personal needs, which I do not dispute are genuine, need to be balanced against the need to protect agricultural land from the cumulative impact of individual lots being converted to non agricultural use.
4. As required by Clause 11 of the Planning Scheme[2], my assessment of this proposal needs to balance conflicting objectives in favour of net community benefit and sustainable development. In this case I consider that a balance needs to be struck between allowing the construction of single dwellings on two small lots against policy which aims to prevent the use of small rural lots for hobby farm type purposes. In making this assessment it is necessary to take into account not only the whole suite of relevant State and local policy but also the zoning of the land as Farming and the particular site context.
5. In this case, I am not satisfied that allowing a dwelling on each of these small lots is an acceptable land use planning outcome.

1. Having regard to the above, I will set aside Council's decisions and order that no permits issue.

[1] Ryan v Moyne SC [2008] VCAT 612, Rose v Northern Grampians SC [2008] VCAT 350, J M Speeding v Greater Shepparton CC [2007] VCAT 2142

[2] Clause 11.01 of the Moyne Planning Scheme