Victorian Civil and Administrative Tribunal|2004-09-23|Before: Mr J, Ms J

The applicant has advised that 10 staff are required for the larger events. It is anticipated that the functions to occur on the property would include participation in Yarra Valley Winery events, charity events, weddings, general celebrations and corporate events.

The proposal also seeks permission for live entertainment, specifically sole instrumentalists, string quartet types and 3-4 person musical ensembles. The proposal does not seek permission for live entertainment in the form of rock bands and disco-type DJs. However, permission is sought for the use of amplified music for some events.

The existing wine tasting building, which is proposed to accommodate the function centre, features a large open area and bar at ground level (approximately 84 square metres) and a smaller mezzanine level (approximately 40 square metres). This building consists of a slat floor, large fireplace, cathedral style ceiling, large jarrah tables and lead light windows. Weather permitting, functions may also occur outside in the open courtyard area directly abutting the wine tasting building.

The catering of functions would include wines produced on the property and food prepared on-site or by external caterers. The food preparation area is located within the building immediately west of the wine tasting building, adjacent to the toilet facilities.

Council also notes that the applicant has sought to substitute amending plans which seeks permission for limited building and works in order to construct additional effluent facilities. It is proposed that an additional male toilet will be built adjacent to the existing public toilet facilities which will include two pans. To accommodate the additional toilet, in addition to the anticipated increased usage of toilet facilities, an additional 3200 litre sceptic tank is required to the west of the existing toilets. It is also noted that effluent will be appropriately treated and disposed of on-site via an absorption trench, approximately 34 metres in length.

Finally, to facilitate the increased traffic movements which will result from the proposed function centre, the proposal also seeks to formalise the existing passing bays along Manuka Road.

14 Mr Livingston also provide the following useful description of the site and its environs which, having inspected the locality, I find to be accurate and which I therefore adopt;

The subject site is situated approximately 1.5km north-west of the Panton Hill township (Refer to Appendix 1, Location Map).

Specifically, the subject site is located at the end of the formed section of Manuka road (eastern arm), approximately 1.2 kilometres from its intersection with Cherry Tree Road. The site is an irregular shaped parcel of land with a frontage of approximately 620 metres to Manuka Road along its northern and wester boundaries), and a total area of approximately 6.6 hectares (Refer to Appendix 2, Site Map).

The subject property is known as 'Panton Hill Winery'. Existing buildings accommodated on the property are located ion an elevated ridge-line, being the highest point of the land at approximately 135 metres to the Australian Height Datum (AHD). This ridgeline runs along the centre of the property in a north-south direction. A natural watercourse traverses the western portion of the site in a north-south direction. A dense band of native vegetation can be found on the western slope of the property, between the watercourse and the existing buildings. The remainder of the property features the vineyards, dams and a scattering of native vegetation.

The property currently contains an established vineyard in four distinct areas. The buildings associated with the winery are reminiscent of 'Tuscany' style architecture, and are situated approximately 100 metres south-west of the main entrance to the property off Manuka Road. The principal buildings include a two storey dwelling (which accommodates the proprietors of the winery), wine making/storage/facilities building (which includes public toilets), a reception/tasting building and a barrel storage building. The dwelling and other winery buildings are constructed from sandstone with grey colorbond roofing.

Access to the property is gained via a driveway from the eastern section of Manuka Road. Car parking is provided for up to 53 cars immediately adjacent to the winery buildings in two main car park areas. The main car park area is located between the dwelling and main winery buildings. A secondary parking area is situated immediately to the south of the barrel storage building. Overflow car parking is located north of the residence.

The subject site is currently used for the purpose of a winery, with permission for Cellar Door Sales. It is understood that planting of the vines occurred in 1975 and 1988, with approximately 3.5 hectares of the property devoted to this purpose. It is also understood that the first vintage was bottled in 1990 and the winery has operated since 1993, producing between 800 to 1000 cases of wine per year.

The site has the following relevant planning history:

* Planning Permit E92/490 was issued in December 1992 for a rural industry (winery).

* Planning Permit 595/2000/01P was issued in December 2001 for the granting of retrospective approval for buildings and works and use of the land as a winery. This approval permitted cellar door sales to the public (not exceeding 30 persons). Hours for cellar door sales permitted are between 11am to 5pm, increasing to between 11am and 9pm between 1 December and 26 January.

* Planning Permit 750/20023/01P was issued in May 2003 for buildings and works of the land for the purpose of an outbuilding.

* Planning Permit 750/2002/01P was also issued in May 2003 for cellar door sales to the public (not exceeding 45 persons).

Land in the locality is generally highly vegetated, undulating, with moderate slopes. While the subject site is located on a ridge, the land typically falls away from the main winery area.

Surrounding properties are similar in size to the subject site, typically containing a detached dwelling, and predominately used for rural residential purposes.

The formed section of Manuka Road can be characterised as being a relatively narrow dirt road with some vehicle blind spots. The average width of the carriageway is between 3 metres and 3.5 metres. Informal passing bays are currently provided along Manuka Road at numerous locations along its length, to facilitate two way traffic conflict.

There is significant roadside vegetation along Manuka Road including ground flora and watercourse runs parallel to the length of the road. Seven other properties obtain access off the constructed portion of Manuka road, and three properties gain access off the west section of this road. Many of the properties in the area are covered in dense, significant vegetation and together with the vegetation along the road, form part of Site 70 within the NEROC report (Refer to Appendix 3, Habitat Significance).

15 The review site is zoned Environmental Rural (Schedule 3) under the Nillumbik Planning Scheme. The purpose of the zone is;

To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

To give effect to the environmental outcome specified in the schedule to this zone.

To conserve and permanently maintain flora and fauna species, soil and water quality and areas of historic, archaeological and scientific interest and areas of natural scenic beauty or importance so that the viability of natural eco-systems and the natural and historic environment is enhanced.

To encourage development and the use of the land which is in accordance with sound management and land capability practices, and which takes into account the environmental sensitivity and the bio-diversity of the locality.

To ensure that subdivision promotes effective land management practices and infrastructure provision.

16 The Environmental Outcome for the zone specified in the Schedule to the zone is;

To ensure land use changes do not have an adverse impact on the landscape or strategic environmental values of the land.

17 A Function Centre is defined in the planning scheme as follows;

Land used, by arrangement, to cater for private functions, and in which food and drink may be served. It may include entertainment and dancing.

18 A Function Centre is an unspecified, section 2, permit required use in the zone.

19 Clause 35.02-6 requires that before deciding on an application to use land, in addition to the decision guidelines in Clause 65, the responsible authority must consider, as appropriate decision guidelines which are contained under the headings General Issues, Rural Issues, Environmental Issues and Design and Siting Issues.

20 An Environmental Significance Overlay (ESO1) affects the eastern section of the site together with a wide area surrounding the site, including the area through which Manuka Road which provides access to the site is located. A permit is required to construct a building and to construct or carry out works and to remove or lop vegetation, pursuant to the Overlay. The schedule to the overlay contains the following Statement of Environmental Significance;

Much of the Shire is heavily vegetated and supports a diverse range of native fauna and flora. Some species are listed under the Flora and Fauna Guarantee Act. There are specific sites occurring on both private and public land that have been identified as being of particular importance within the Sites of Faunal and Habitat Significance in North East Melbourne (Beardsell 1997). Identification, protection and enhancement of the environmentally significant sites and strengthening of connecting habitat links will assist in the maintenance of biodiversity within the Shire and surrounding areas.

21 I was presented with comprehensive descriptions of the State and Local Planning Policy Frameworks as they apply to this proposal in the submissions of the Council and objectors and the evidence of Mr Dietrich, and it is not necessary for me to repeat that material here. I will return to an assessment of the application against the applicable policy framework subsequently in this decision.

23 Clause 57 Metropolitan Green Wedge Land was inserted by Amendment No. VC23 on 19 May, 2004. The purpose of the Clause is to protect metropolitan green wedge land from uses which would diminish its agricultural, environmental, conservation, landscape, natural resources or recreation values. Under the provisions of this clause a function center is a permitted use provided that it is used in conjunction with a winery and no more than 150 patrons are present at any one time.

24 Amendment VC23 also introduced the following transitional arrangements for permit applications (Clause 57.02);

The requirements of the planning scheme as in force immediately before 19 May 2004, continue to apply to a permit application made before that date to the extent that, but for this clause, Clauses 35.04, 35.05, 35.06 or 57.01 would apply to such an application. This does not apply to a permit application to subdivide land.

25 The planning permit application was submitted before 19 May, 2004 and I am required therefore to consider the application under the requirements of the planning scheme in force prior to that date.

26 The parties and the witnesses at the hearing of the application for review relied on both written and oral submissions and a number of photographs, plans and other documents were tendered to the Tribunal. All witnesses were made available for cross examination.

27 I inspected the subject site and its locality after the completion of the hearing unaccompanied by the parties.

28 The principal issue requiring my consideration in this matter is to determine the suitability of the site for the intended use. Clause 31.01-2 of the planning scheme under the heading Making Decisions About Section 2 Uses outlines the approach to be adopted by responsible authorities and, on review, by this Tribunal, in exercising the discretion available under the planning scheme. The Clause states;

Because a use is in Section 2 does not imply that a permit should or will be granted. The responsible authority must decide whether the proposal will produce acceptable outcomes in terms of the State Planning Policy Framework, the Local Planning Policy Framework, the purpose and decision guidelines of the zone and any of the other decision guidelines in Clause 65.

29 I have outlined previously the provisions of the Environmental Rural zone and I think it is clear that the zone purposes and decision guidelines place a very strong emphasis on the protection of the landscape and environmental values of the land within the zone. Similarly the planning scheme provides for the exercise of discretion to permit a wide range of uses to locate within the zone. The range of permitted uses is perhaps surprisingly extensive and include uses as diverse as accommodation, agriculture, car wash, convenience restaurant and shop, medical center, place of assembly, and rural industry.

30 It is worth noting at this point, that this is not a residential zone. While dwellings are permitted uses in the zone subject to the grant of a permit, the decision guidelines of the zone require consideration of whether a dwelling is reasonably required for the operation of the environmental rural activity conducted on the land. I received many submission during the course of this hearing which focused on residential amenity issues but my consideration of these must be undertaken in the context that this is a rural zone in which non residential uses are permitted and rural activities encouraged (subject to land capability and environmental management).

31 In making a decision about the appropriateness of a use to a particular site, an assessment must be made of the site and of the proposed use and the decision must be informed by the applicable policy framework. A conclusion must be drawn as to whether a proposal produces acceptable outcomes which are consistent with those sought to be achieved by the applicable policy framework and the zone provisions. The forming of such a conclusion is often a difficult task because the planning scheme will inevitably contain a large amount of policy which will be to varying degrees relevant to the consideration of a particular application. Some policies will be directly relevant to the issue at hand while others maybe of only peripheral relevance, but these must still be considered. Similarly, some of the policies maybe seen to be contradictory in that, taken on their own, they seek to achieve outcomes which may appear difficult to rationalise with the outcomes sought to be achieved by other policies. Policies concerned with economic development outcomes contrasted with policies concerned with environmental outcomes are perhaps the most obvious examples of those policies which raise this potential for internal conflict within the planning scheme's policy framework.

32 This is a case in which significant weight was placed on specific policies by some parties in preference to, or in some cases, to the exclusion of other policies. The correct approach to the application of policy has been the subject of a number of decisions of this Tribunal in the years since the introduction of the policy based VPP planning schemes and the Tribunal has consistently held that the policy framework must be considered and applied in its entirety and where competing policies exist, a balancing exercise must be carried out to reach a reasoned conclusion.

33 The Policy Framework of the Nillumbik Planning Scheme provides what I consider to be a very clear direction for the exercise of discretion in this matter. Clause 21.02 provides an overview of the municipality and emphasizes the dichotomy in the shire's land use structure and in particular the distinction between its urban and rural areas and the "green wedge" role played by its non urban areas in providing a break between the northern and eastern metropolitan growth areas. Clause 21.03-3 provides an overview of the shire's environment, conservation and landscape values and Clause 21.03-4 focuses on the shire's economic characteristics, opportunities and constraints. Under the heading Tourism, the importance of the shire's natural environment and landscape values to the tourism industry is recognized. Under the heading Influences, issues which need to be managed to ensure that economic development objectives and environmental protection objectives are rationalized, are identified. These influences include increasing pressures on agricultural production as a result of industry restructure and consequent demand for land subdivision to maximize land sales, and the need for agricultural uses to adopt sustainable land management practices. With respect to tourism the potential for viable and ecologically sustainable economic development opportunities are identified and it is stated that these are presently underdeveloped and that "......agricultural based and environment activities such as wineries, nurseries, eco-tourism and host farms may provide opportunities for tourist activities if appropriately designed, located and managed to respect the environmental conservation and landscapes of rural areas and the existing road hierarchy (Tribunal's emphasis). It is also stated that;

Tourism, especially in non-urban areas, will need to recognise the level of infrastructure which is available.

34 Clause 21.03-5 Infrastructure identifies constraints to development posed by a road infrastructure in rural areas characterized by "....unsealed local roads (which) service traditional residential, agricultural or bush uses and would be unsuitable for new uses requiring significant increases in traffic movement". Under the heading Influences it is stated that;

Local roads service existing local uses. Proposals for new uses need to be considered with respect to the capacity and condition of local roads. The potential impact that new uses would have on traffic numbers and matters such as traffic congestion, dust and impacts on road surface (such as corrugation and pot-holes) should be addressed as appropriate.

35 Clause 21.04 provides a broad strategic vision for the municipality while more detailed strategies and objectives are established under clause 21.05. Clause 21.05-2 focuses on rural land use and the objectives promote sustainable rural land use, limits on the fragmentation of rural land, the separation of conflicting rural land uses, minimization of infrastructure service demands in rural areas and protection of rural landscape character. A number of strategies are identified under each objective but the key themes emphasise the desire to retain rural areas for rural uses, limit the number of dwellings and other sensitive uses locating in rural areas and relevantly "......Strongly discourage commercial and industrial type uses and developments in rural areas with limited vehicular access, due to unsealed roads, no-through roads or other constraints to road safety or efficiency".

36 Clause 21.05-3 Environment, Conservation and Landscape emphasizes sustainable land, catchment and resource management.

37 Clause 21.05-4 focuses on Economic development and includes objectives to facilitate sustainable economic development, the expansion of tourism activities, the retention of agricultural land for soil based agricultural production and the promotion of sustainable agricultural activities. With respect to tourism the following strategies are especially pertinent;

Facilitate low impact tourism development opportunities that build on the cultural and physical characteristics of the `green wedge'.

Encourage the establishment of tourism related uses in urban locations where there is safe and efficient access to main roads, and which would not be to the detriment of neighbouring and surrounding land uses and from the neighbourhood character and streetscape.

Encourage the establishment of tourism related uses in rural locations where there is direct access from a major road, and where such use and development is compatible with the environmental and landscape values of the site and surrounding area. Ensure that access is not reliant on unsuitable local roads and that the use will not adversely impact on neighbouring and surrounding land uses.

Ensure tourism use is of a scale and type which can be adequately catered for by available infrastructure services.

38 Clause 21.05-5 is concerned with the provision of infrastructure. The emphasis is on the efficient provision of infrastructure to areas designated for residential and low density residential development and the provision of safe and efficient road networks within the municipality. It is a strategy to;

Upgrade the local road network to provide all weather roads and reduce environmental impacts on downstream waterways, by sealing unmade local roads where appropriate, in an environmentally sensitive manner.

Discourage the introduction of uses in areas along local roads (especially unsealed, narrow and/or no-through roads), where uses would attract significant additional vehicular movements which would be inconsistent with existing vehicular traffic and the capacity of the road, and/or which would be to the unacceptable detriment of the condition of the road.

39 The above analysis demonstrates that the Council's policy framework does seek to achieve a balanced outcome with respect to the encouragement of employment generating activities, including tourism which builds on the municipality's environmental and landscape assets, the protection of rural land for agricultural purposes, the protection of environmental qualities, and the efficient provision of infrastructure. In broad and very simple terms this is to be achieved by limiting the intrusion of residential and other sensitive uses into rural areas and by encouraging commercial and tourism related uses to be located where their impacts can be absorbed without adversely affecting the character and ambience of existing rural areas. With respect to tourism related uses this means they should be located in urban areas or if in rural areas on sites where there is direct access from main roads. Access to such uses which are reliant on "unsuitable local roads" is specifically discouraged.

40 The outcomes sought to be achieved by this policy framework are very clear. The protection of this municipality's rural areas for both economic development and environmental protection reasons necessitates constraints being imposed on the intrusion of non rural uses. These uses include residential uses and, as an aside, I can only wonder at the circumstances which have allowed residential uses to locate in this locality in an Environmental Rural Zone. However, uses which are also discouraged include commercial and tourism related uses but in recognition of the desirability of encouraging tourism which builds on the municipality's environmental and landscape assets, guidance is provided as to the preferred location for these. It seems to me that access to a main road is a sensible starting point in terms of identifying suitable locations.

41 I acknowledge that the policy framework is intended only to inform the exercise of discretion and that it is not intended to be applied in a prescriptive manner. A refusal of this application solely on the basis that the site does not have direct access to a main road, would be an inappropriate application of policy and would be tantamount to applying policy as a set of prescriptive rules. As I have attempted to demonstrate above however, the policy framework is structured so that it addresses a wide range of issues and presents a clear, if not concise, view of the preferred future land use and development pattern of this municipality. The identification of main road locations as the preferred location for tourism related uses in rural areas constitutes only a part of the Council's broader, strategic approach to the management of the conflicting development pressures confronting the municipality.

42 The location of a function center at the end of an unsealed, 3.0 to 3.5 meter wide, 1.2 klm long, single lane, local rural road, in an area which is predominantly rural in character, is not an outcome which I consider to be consistent with the Council's policy framework and is in direct conflict with policies relating specifically to the protection of rural landscape character and the related policy concerning the management of infrastructure provision in rural areas.

43 I recognize that there is often a temptation by responsible authorities to make decisions on individual applications on the basis that the impacts of that one proposal are negligible and that the grant of a permit for one use could not conceivably be seen as compromising the overall integrity of the policy framework. This is of course a short sighted view and it is the incremental impact of a number of isolated decisions on individual applications which ultimately undermine the capacity of the planning scheme to achieve the outcomes it seeks to achieve.

44 In the context of this application, I was presented with submissions which demonstrated that tourism related uses such as function centers within this municipality are located predominantly, if not exclusively, on sites which have access to main roads. I was not presented with any examples of function centers located at the end of an unsealed, 1.2 klm long, 3.5 metre wide rural road. Whether this is a consequence of the effectiveness of the Council's policies, a function of other factors or a combination of both, is unclear but I think it demonstrates that the patterns of development and land use in this municipality are currently consistent with its preferred policy outcomes and I have not been persuaded that there exists sufficient justification to deviate from those preferred outcomes by directing the grant of a permit for this proposal.

45 It was Mr Dietrich's evidence and Mr Crawford's submission that the scale and operating characteristics of the proposed use are modest in nature and that the impacts associated with it in terms of adverse amenity effects, vegetation removal and change to the rural character, are small and that as such the grant of a permit is justified having regard to the planning scheme's encouragement for economic and tourism development in rural areas. It was Mr Dietrich's evidence that the modest scale of the use is reflected in the fact that it is intended to limit the number of functions to 25 per year with a maximum of 100 patrons (the Notice of Decision contains conditions limiting the number of functions to 15 per year and the number of patrons to 75).

46 Mr Crawford also relied on the evidence of Mr Natalizio in support of his submission that notwithstanding the status and condition of Manuka Road, the road is trafficable and the additional traffic volumes generated by the proposed use are capable of being accommodated on the road without the need for any significant upgrading.

47 It is certainly relevant to consider the intensity and frequency of the proposed use in determining its suitability to a particular site but I do not regard the scale and intensity of this use as being so modest that I ought to conclude that it is capable of being accommodated within the outcomes contemplated by the policy framework.

48 While I accept Mr Natalizio's evidence that the additional traffic volumes are capable being accommodated within the existing capacity of Manuka Road, subject to the provision of passing bays as recommended by him, I am nevertheless unable to conclude that the frequency, volumes and type of traffic generated by this use are consistent with this road's status as a local, narrow, unsealed rural road. Roads such as Manuka Road clearly form part of the rural character of this municipality's "green wedge" areas and, for a combination of environmental, amenity and infrastructure management reasons, the planning scheme's policies are specifically aimed at preserving the status of these roads by limiting the introduction of uses which rely upon them. I reiterate my earlier observations about the importance of avoiding short sighted decision making in order to ensure that the outcomes which are sought to be achieved by planning schemes are not undermined by a succession of isolated decisions. My earlier analysis of the policy framework demonstrates to my satisfaction that this proposal's reliance on access from Manuka Road is discouraged and I have not been persuaded that the characteristics of either this use or of Manuka Road are such that a permit ought to be granted.

49 The decision of the responsible authority in Application for Review No. P656/2004 is set aside and no permit shall issue.

50 It is not necessary for me to make orders with respect to Application for Review No P912/2004.

[1] Nillumbik Shire Council Minutes of Planning and Building Committee 17 September, 2003

[2] Nillumbik Shire Council Minutes of Planning and Building Committee 11 February, 2003

Environment Act 1987

Civil and Administrative Tribunal Act 1998

Green Wedge Protection Group Inc v Nillumbik SC [2004] VCAT 1916 (23 September 2004)

Green Wedge Protection Group Inc v Nillumbik SC [2004] VCAT 1916

At a glance

Court

Decision date

Before

Source

Judgment (77 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (1)

Green Wedge Protection Group Inc v Nillumbik SC [2004] VCAT 1916 (23 September 2004)