7. Within six months of the date of this permit the Applicant must plant a landscape buffer strip on the eastern side of the driveway, starting at a distance 18 metres back from the property frontage to a distance of 50 metres (ie roughly corresponding to the length of the proposed greenhouse). The planting strip shall comprise native shrubs and small trees, capable of growing to 2-2.5 metres in height at maturity. Once planted out, the landscaping strip shall be maintained in good condition to the satisfaction of the Responsible Authority.

_____________________________

For the Applicant for Review: Ms S Goddard represented herself.

For the Responsible Authority: Mr M Deidun, Town Planner, represented the Responsible Authority.

For the Respondents/Permit Applicants: Mr L Earles represented himself and his wife.

1. This is an application for review pursuant to s.82 of the Planning and Environment Act 1987, against the decision of Baw Baw Shire Council which issued a Notice of Decision to Grant a Permit for construction of buildings and works in the form of a greenhouse, the relocation of two existing greenhouses and the construction of ancillary structures.

2. The Applicants seek to erect a 1500 square metre greenhouse to complement an existing greenhouse of 900 square metres. This would require relocating two existing igloos alongside an existing greenhouse and erecting and installing a new boiler to burn waste oil which in turn heats water that is pumped throughout the greenhouse. The Applicants currently produce hydroponically grown tomatoes.

3. The site is located on the northern side of Valley View Road about 100 metres to the east of Tonkin Road. This is about midway between Labertouche and Jindivick. The Tribunal was told the surrounding land is used predominantly for agricultural purposes of which dairying and beef production are dominant. There is also some timber harvesting. The subject site is one of a group of about ten rural residential properties.

4. The subject land has an area of 2.003 hectares. It is rectangular in shape with a frontage of 94 metres and a depth of 214 metres. There is an existing vehicle accessway on the eastern side of the property which provides access to both the dwelling and the igloos. The Tribunal was told that the central portion of the site has already been established with greenhouses for the growing of hydroponic tomatoes.

5. Part of the site has been well planted and is complemented by other planting on adjoining properties.

6. The subject site is located in a Rural Zone under the Baw Baw Planning Scheme. No permit is required for the use of land for crop raising. A permit is required to construct buildings and works which are located within 100 metres of a dwelling not in the same ownership. The Tribunal was told the proposed greenhouse and ancillary structures are within 100 metres of the dwellings on adjoining properties. The Tribunal was told it was 57 metres to the nearest dwelling, although this figure was disputed by the Applicants for Review who claimed it was 47 metres.

7. There are various planning controls and policies of relevance in this application and these are included in the following clauses:

The south-west area of Gippsland within which the Shire is located, supports over 20% of Victoria's dairy production and a significant proportion of the State's vegetables. Gippsland and the Shire are within a strategic geographic location in terms of their association with other highly productive agricultural areas and accessibility to major markets. The Princes Highway and the Melbourne-Gippsland railway produce a high quality transport network for the movement of people as well as freight.

8. The Tribunal was also advised that the (then) Department of Infrastructure published Practice Note `Planning Consideration for Horticultural Structures'. The three purposes of the Practice Note are:

* assist in the preparation of local planning policy;

* provide practical siting and design techniques to improve design outcomes in sensitive rural environments;

* provide guidance and direction on appropriate planning permit conditions.

9. The Practice Note sets out the following recommendations for siting of horticultural structures:

* Locate structures with sufficient setback from roadsides and adjoining property boundaries to allow strong landscape screening treatment.

* Utilise existing vegetation on the site to provide natural screening. Add dense shrubs and planting as required to block close range views of work areas from the adjacent roadside and dwellings on adjoining land.

* Avoid siting structures directly in the view line of adjacent roads and dwellings unless well-screened by vegetation.

10. At the review hearing Mr Deidun and Mr Eales provided written submissions. Ms Goddard made an oral submission. The Tribunal was provided with an array of photos of the subject site, adjoining properties, the condition of Valley View Road and the locality in general. The Tribunal was provided with planning scheme controls and policies and details of an emission report for the proposed heating unit.

11. Mr Deidun, for the Responsible Authority, provided a detailed history of the application, details of the existing usage of the land and a summary of the issues.

12. Mr Deidun refuted the first ground of appeal which referred to the Objector's concern about the burning of waste sump oil which it was claimed produces a horrid and foul odour. Mr Deidun explained that the existing heating unit is not part of this present application and therefore its effects are not for consideration in this application. He advised that one of the ancillary structures to the proposed greenhouse is a new heating unit, but this heating unit will be placed alongside the existing heating unit and will not be visible from the Objector's property as the view is obscured by an existing plastic greenhouse.

13. Mr Deidun advised that the heating unit will be about 80 metres from the Objector's dwelling and the odour would not cause any detriment to the Objector given the separation of the facility and the presence of existing vegetation on the Objector's property. He advised that he had undertaken at least five inspections of the subject site at various times without pre-warning the Permit Applicants and was unable to detect any odour from the existing facility and therefore could not come to the same conclusion as the Applicant for Review.

14. Mr Deidun explained the Council had inserted Condition No. 7 requiring a screen to prevent viewing of some parts of the proposed new greenhouse and ancillary structures. He claimed that the distance between the proposed greenhouse and the Applicant for Review's house was 57 metres (although this is disputed) and was out of line of sight with that dwelling. He claimed, in any event, the Council inserted a condition requiring some artificial screening to a height of 1.8 metres to prevent viewing of this facility. He had suggested a shadecloth structure to blend in with the surrounding landscape.

15. Mr Deidun also advised that the only other structure to be located closer to the Objector's property than the proposed greenhouse is a new 15,000 litre oil tank. He advised that given the location of this tank between the existing 10,000 litre oil tank and the existing greenhouse, that its location will add little to the existing view of structures from the Objector's eastern boundary or dwelling. He raised doubt whether the oil tank could be viewed from the Objector's dwelling or areas of secluded private open space at all.

16. Mr Deidun also argued that noise and activity in relation to the use of the land, which has already been established and does not require a permit, was not appropriate to be applied in this case. He advised that the only people to work on the business are the Applicants themselves and the work is mostly quiet in maintaining crops within the greenhouses. He advised that such an activity is considered unobtrusive to the surrounding landowners and occupiers.

17. With regard to concerns raised about deliveries from vehicles, Mr Deidun advised that the Objector's arguments are unwarranted as there were mainly small vehicles and a large tray truck which usually reversed into the site. He claimed that this compares favourably with surrounding rural operations and, in particular, dairy farms. He claimed such vehicles from dairy farms would cause far greater disruption to local traffic movements than the traffic movements that occur to the subject site.

18. Mr Deidun also referred to the Rural zoning of the land and reminded the Tribunal that this was not a Rural Residential or Environmental Rural Zone. He advised that the Council had made a strategic decision in preparing the Baw Baw Planning Scheme to encourage productive agricultural activities, even on these small rural lots. He claimed this was a significant decision as it means that from a strategic planning perspective the decision has been made that the rural production of the land is to have more importance than residential amenity.

19. Ms Goddard raised various concerns about both the appearance of the proposed new structures, the impact of the proposed heating unit and the existing operations of this hydroponic tomato farm. Most of the arguments are best summed up by Mr Deidun in his submission and comprise the following:

1. Waste sump oil is presently burned on the site for the heating unit, and this is proposed to increase with the new hothouse. The burning of the waste sump oil produces a most horrid and foul odour. What impacts does this have on the environment, ozone layer and surrounding residents?

2. The proposed hothouse will be 47 metres from the objector's property, with ancillary structures at a closer distance. This is in close proximity.

3. Noise and activity from the site will increase.

4. The vehicles that enter the site create a dangerous situation.

5. Large vehicles are unable to safely enter the site, and thus are parked on the road reserve and perform dangerous traffic movements.

* Putrid - foul smell from existing burner, particularly on days of low wind when it gets cold.

* Lots in the neighbourhood are too small for agriculture production.

* When purchased in the area the activity was of low scale and did not cause a problem.

* The lawnmower throws up large rocks which causes damage to her property and horses.

* Had received insufficient assistance from the Council and the EPA on problems experienced.

* Had been treated with harassment and in a vindictive manner.

* Potential pollution from the burning of the waste sump oil.

20. Mr Earles explained that the property already contained the current greenhouse when the Applicant moved next door and complied with existing permit conditions pertaining to a rural allotment. He advised that not much has changed, apart from more environmentally appropriate management techniques, with a reduction in the use of fungicides and pesticides. He advised that he had also introduced new farm management practices including a water recycling plant, enabling saving of water, and reduction in fertilisers. He advised that for the expansion of a successful farm, the proposed greenhouse would need to be heated, using the same type of boiler that has been used for the last nine years in the existing greenhouse. He advised the boilers burn waste oil which in turn heat water that is pumped throughout the greenhouse. He advised these boilers are sought after throughout Australia and tabled a report on stack emission and technical data on an oil burner. He advised that these met EPA requirements.

21. Mr Earles also advised that the application had been referred to WorkCover Victoria which had given the green light for the proposal. He explained that with the current production of around two tonne of produce a week, which is expected to increase to about five tonne per week, that there would be use of a 12 tonne tray truck which arrives twice weekly. Mr Earles also advised that noise from the production is not expected to increase because the current irrigation plant services both greenhouses, and noises experienced now by the Applicant relate to the ring of the telephone and the radio which cannot be heard form the Applicant's house.

22. Mr Earles claimed that they are trying to conduct a business in a rural area. He claimed this was a farming area and whether one farms ducks or grows tomatoes, there will also be noise associated with the activity. He advised however that growing tomatoes hydroponically is less intrusive than growing field tomatoes because it requires no heavy machinery, cultivation or heavy fertiliser use but ironically if they were to grow field tomatoes they would not require a permit.

23. I consider the Responsible Authority's decision was essentially correct. Following discussion during the hearing the Responsible Authority and Mr Earles agreed that Condition 7 could be changed by replacing the requirement for a 1.8 metre high screen on the eastern side of the driveway with buffer planting on the western side of the existing driveway.

24. The intention behind the need for the buffer planting is to screen view of the new greenhouse from the Objector's property. This does not necessarily mean that all views must be completely obliterated, rather they should be filtered. Having regard to existing vegetation on the Objector's property and the subject land, I am satisfied that a planting strip of shrubs, and/or small trees, would suffice in complementing the existing landscape and providing a further break in view.

To provide for the sustainable use of land for Extensive animal husbandry (including dairying and grazing) and Crop raising (including Horticulture and Timber production).

* Protection and creation of an effective rural infrastructure and land resource.

* Improvement of existing agricultural techniques.

* Protection and enhancement of the bio-diversity of the area.

* Value adding to agricultural products at source.

* Promotion of economic development compatible with rural activities.

* Development of new sustainable rural enterprises.

26. It is noteworthy that the current use does not need a town planning permit and, importantly, it is actually a use encouraged by the zone.

27. On the other hand, the Applicant for Review/Objector's property is used for domestic purposes and the keeping of horses. While animal keeping is a Section 1 use (no permit required), a dwelling on a lot of two hectares is not encouraged in the zone.

28. At the end of the hearing I advised the parties that the application for review was not allowed and that the Responsible Authority's decision was varied insofar as a new Condition 7 would be inserted (with the consent of the Responsible Authority and the Permit Applicants). I also referred to two VCAT decisions, the first Lindsay Rogers v Swan Hill Rural City Council (P983/2002) where, at page 9, I said:

I consider it would be a poor planning outcome for a responsible authority to give greater precedence to a resident on a hobby farm over that of a Section 1 use which is consistent with the purposes of the zone and can also meet the requirements of the relevant overlay provisions applicable on the site.

29. In that case I also referred to Doig v Bass Coast Shire [2000] VCAT 1265 (31 May 2000). This decision quoted the following:

Mr Green explained in his submission that this matter came down to a "right to farm" issue, and the Applicant questioned rhetorically "if I can't have free range chickens on a rural zone property where can I?" The Tribunal notes the primary purpose of the "rural" zone is directed at farming and rural pursuits. It is not directed at residential activities. In fact dwellings on a lot less than 40 hectares require a planning permit and there are specific conditions limiting further subdivision of land on lots less than 40 hectares. Judging by the purpose and its provisions of the zone there is no inherent right to a dwelling on a lot less than 40 hectares in area. The Tribunal considers that the legitimate expectations of people wishing to pursue farm activities on rural zoned land should be clearly recognised by persons who reside in dwellings in or near rural zones. Whilst the Doig's may claim the proposal will result in a loss of amenity such expectations need to be considered in the light of the rural nature of the area. The Tribunal noted during the hearing that the land was not zoned for residential or rural residential purposes. It considers that noise, farm odours, the coming and going of trucks, tractors and related farm vehicles are a normal activity in a rural zone. Often these activities need to be conducted at various hours of the day and persons residing in such areas should not expect the same level of amenity as they would if they were in a conventional residential or rural residential zone.

30. During the hearing Mr Deidun advised the Tribunal that Baw Baw Shire Council had prepared pamphlets which it distributed to various people, including real estate agents, about `right to farm' issues. Ms Goddard was concerned that such information should be more readily available and expected the Council to do more to inform people about these issues. If Shires do provide such information they should be applauded and encouraged to keep people informed of this important issue, particularly where such communities have people seeking `lifestyle' changes in rural areas. However, that does not mean that the Responsible Authority should be held responsible for the unrealistic expectations of persons seeking lifestyle changes when their dreams or expectations are unrealised. The reality of living close to an operational agricultural use is that it can give rise to noise and odours but the viability of the use should not be prejudiced by the intrusion into the locality of people seeking a residential environment. It may suggest however, that responsible authorities need to be careful when considering small lot subdivisions in rural areas particularly when the subdivisions will allow dwellings to establish which have no relationship to the rural usage of the land.

31. Many of the complaints and concerns raised by Ms Goddard did not originate from this permit application and the Tribunal found it necessary on a number of occasions to explain to her the purpose of the Rural zone which unequivocally gives emphasis to crop raising, and this use was both in existence at the time she purchased her property and is a Section 1 use, ie no permit required.

32. Ms Goddard also raised concerns that the future glasshouse may be illuminated at night, however whether it was illuminated at night or not relates to the usage of the land. However the use does not need a permit so it is beyond the field of enquiry in this application for review.

33. Similarly, concerns about existing telephone noise and playing of music in the glasshouses relates to the current use, not the proposed use. As explained in the hearing, if there was any concern about excessive noise, it could be addressed through appropriate channels under the SEPP for which the Responsible Authority's officers could investigate and pursue if they found any real cause. In this regard I note Council officers have undertaken inspections and have not detected a problem.

34. With regard to matters raised by Ms Goddard about truck movements in Valley View Road including the backing into the subject driveway by large tray trucks, I note the Responsible Authority raised no concern about this practice. It considered the practice and usage of such trucks to be more favourable than a number of dairying and beef grazing production practices which are common to the area. Whilst there was evidence in the photos of truck tyre markings in the roadway, this does not constitute a danger nor damage to Ms Goddard's property. Similarly, potholes in Valley View Road, whilst understandable on a rural road, do not in themselves constitute an undesirable scenario nor necessarily result in a dangerous condition. After all, this is a rural road serving farms and other rural and residential land holdings, it is not a suburban street where the standard of construction can be of a much higher standard.

35. It seems that the Applicant for Review has unrealistic expectations of what the planning controls affecting this area are intended for, and she has unrealistic expectations about how her `residential amenity' should be protected. In this regard, the Tribunal concurs with Mr Deidun's summation of the situation where he stated:

Rural activities involve quite a number of possible `detriments', including the operation of machinery, often early in the morning, the use of various sprays and chemicals, and even sometimes the constant animal noises and associated smells. To afford protection to residential amenity in such areas would effectively restrict the efficient operation of a number of farms, particularly where they are located adjacent to smaller lots which are used purely for residential purposes. Due to past inappropriate subdivisions, these lots are dotted throughout the rural landscape. While the planning scheme recognises their presence, the rural zone intentionally gives them little right of residential amenity over the predominant use of the land for rural activity.

36. Accordingly the application for review is varied, insofar as Condition 7 is reworded to provide for a landscaping strip alongside the driveway. Other than that, I consider the Responsible Authority's decision should stand.

_____________________________P G O'LEARYMEMBER