[2006] VCAT 511

1 The request to cancel planning permit 576/2004/14P issued on 21 December 2005 is refused.

1 Planning Permit No 576/2004/14P was issued by the Nillumbik Shire Council on 21 December 2005 for the resubdivision of two existing allotments and use of Lot 2 for a dwelling, in accordance with endorsed plans. The permit was issued as an outcome of the Tribunal's decision in application P2064/2005, Shahbyne Nominees Pty Ltd v Nillumbik Shire Council[1]. The present application is a request made pursuant to section 87 of the Planning and Environment Act 1987 to cancel this permit on the grounds that there was a material mistake in relation to the grant of the permit.

2 I find that there has been a material mistake in relation to the grant of the permit for the following reasons. Green Wedge Protection Group Inc and Friends of Nillumbik Inc were objectors to the planning permit application relating to this proposal when it was considered by the responsible authority. Due to administrative error, the permit applicants were not advised that there were any objectors and consequently failed to serve a copy of their application for review of the council's decision to refuse to grant a permit on these objectors. As a result, the objectors did not lodge statements of grounds in application P2064/2005 and were not parties to this application for review. The hearing of this application for review took place on 10 November 2005. At the conclusion, Member Fong gave an oral decision to set aside council's decision to refuse the application and to grant a permit. Her written reasons for making that decision were made on 16 November 2005.

3 As objectors, Green Wedge Protection Group Inc and Friends of Nillumbik Inc should have been served with a copy of application P2064/2005 and were entitled to be parties to that proceeding. The failure to serve them and their consequent failure to participate in the proceeding which led to the grant of the permit and its issue constituted a material mistake in relation to the grant of the permit.

4 The application in the present proceeding to cancel the permit was made by Green Wedge Protection Group Inc, which is a person who objected to the issue of the permit within the meaning of section 89(1) of the Act. At the commencement of the hearing, I joined Friends of Nillumbik Inc as a party to the proceeding pursuant to section 60 of the Victorian Civil and Administrative Tribunal Act 1998 because this group was also a person who objected to the issue of the permit.

5 I am satisfied that the other provisions of division 3 of part 4 of the Act have been met and that the only matter I need to determine is whether it would be just and fair in the circumstances to cancel the permit (see section 91(3)(c)). Essentially, this requires me to reconsider the merits of the proposal which was the subject of the proceeding in application P2064/2005. The question is whether the permit would have been granted or different conditions would have been included if the submissions of the applicant had been presented and taken into consideration at the hearing. I have decided that the outcome would not have been any different for the following reasons.

6 Green Wedge Protection Group and Friends of Nillumbik oppose the resubdivision as a matter of principle based on planning policy objectives relating to protection of the green wedge. One of their main grounds for opposing the subdivision is an assumption that this will enable an additional dwelling to be constructed. As a consequence, they say that the proposal is contrary to objectives in the MSS relating to Rural Land Use (clause 21.05-2) and the Small Lot Subdivision Policy (clause 22.02).

7 It was submitted by Friends of Nillumbik Inc that:

The intent of this re-subdivision application is to enable the possible future permissibility of an additional dwelling, which in the current configuration would not be possible as the existing house would become land-locked without access to Menzies Road. As such, this application fails the subdivision clauses of 35.06-3 and 57.01-2, which require that the effective land use does not involve an increase in the number of dwellings.

However, I disagree with the assumption that the subdivision will allow an additional dwelling to be constructed, i.e one that could not otherwise be permitted.

8 The site consists of two crown allotments with a combined area of approximately 55 hectares. CA15 is 20.23 hectares and has a long abuttal to Menzies Road. CA14 is 32.12 hectares. The Yarra River forms one of its title boundaries for a length of approximately 1.6 kilometres. It has no road abuttal and access is via a driveway across CA14. An existing dwelling and outbuildings associated with the agricultural use of the land are located near the river on CA14. The whole parcel of land is sed for agriculture, with irrigated cropping on the river flats, which extend across both CA14 and CA15, and general grazing elsewhere.

9 The effect of the subdivision will be that Lot 1 will have an area of 40 hectares comprising the irrigated areas, the existing residence and all the outbuildings housing the farming and pumping equipment. It will include the existing access driveway and will have a long frontage to both Menzies Road and the a river. Lot 2 will be the balance of the land with an area of 15.4 hectares. It will be an irregular shaped allotment having a narrow frontage to Menzies Road with a building envelope setback 30 metres from Menzies Road and will include the less productive, hilly section of the land along the northern boundary. It will also have a frontage to the Yarra River. Access to the rear portion of the land will be via a carriageway easement over the existing driveway now located on Lot 1.

10 Whilst the existing CA14 may be landlocked, CA15 is not. It has an abuttal to Menzies Road and I consider that it is highly likely, having regard to the provisions of the planning scheme and the physical characteristics of the land that a permit would be granted for a dwelling on this allotment. If CA14 was to be separately disposed of, an easement of carriageway would need to be created over CA15 to give access to the existing dwelling. I also consider that a permit for this would be likely to be granted.

11 Both Green Wedge Protection Group and Friends of Nillumbik would prefer that the land remain as a single tenement with no additional houses. They point to the single tenement planning controls which applied prior to the introduction of the new format Nillumbik Planning Scheme and contend that such controls are more effective in preventing the fragmentation of green wedge land. I do not disagree with this, and it may well be argued that removal of tenement controls was a retrograde step in this respect. However, the rural zones in the new format planning schemes operated to relax controls over subdivision and dwellings in rural zones and these are the controls that now exist. The provisions of the Rural Conservation Zone do not prohibit the grant of a permit on CA15. Taking into consideration the size of this allotment and the requirements of clause 35.06-2, I see no reason why a permit would not be granted for a dwelling. There is nothing in clause 35.06-2 that requires a lot to have a road frontage so long as it has a legal means of access and physical access is via an all-weather road.

12 Clause 35.06-3 provides that a permit is required to subdivide land and each lot must be at least 40 hectares. A permit may be granted to create smaller lots if:

•

The subdivision is the re-subdivision of existing lots, the number of lots is not increased, and the number of dwellings that the land could be used for does not increase. ...

13 In the present case, the subdivision is the re-subdivision of existing lots. There are two lots and this will not be increased. So far as the number of dwellings is concerned, dwelling is not an as-of-right use in the Rural Conservation Zone. A permit is required for any dwelling and there can only be one dwelling per lot. However, there is no minimum lot size for a dwelling.

14 Therefore, when clause 35.06-2 refers to "the number of dwellings that the land could be used for", it is referring to the potential number of dwellings that exist and for which a permit could be granted. This does not necessarily mean that a permit would be granted. Always, the grant of a permit for a dwelling or a subdivision is subject to the exercise of discretion. This particular provision is referring to the legal possibility of a permit being granted not to whether a permit would necessarily be granted in the particular circumstances.

15 That being the case, it cannot be said that this subdivision would enable an additional dwelling and therefore, it cannot be said that the subdivision is contrary to clause 35.06-3.

16 In deciding whether to grant a permit for subdivision of lots less than the minimum size specified in the zone it is necessary to have regard to the Small Lot Subdivision Policy in clause 22.02. The objectives of this policy are as follows:

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To protect the productive agricultural potential of land so as to maintain farmland as a long term resource.

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To maintain farm scale and avoid constraints on rural land use resulting from increasing development densities in rural areas.

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To provide a sustainable basis for consideration of proposals for small lot subdivision for an existing dwelling, as exceptional variations to the Rural Zone minimum subdivision area provisions.

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To protect the agricultural, landscape and environmental values of the Shire.

17 I agree with Member Fong's analysis of the way in which the subdivision responds to these objectives. I agree with her conclusion that the resubdivision is in the best interest of maintaining the viability of the farm. Whereas the existing lot boundary between CA14 and CA15 cuts across the river flats through the irrigation routes, and separates the farm support facilities from the productive part of the land, the new subdivision will consolidate the productive part of the farm and include all the agricultural infrastructure and house into one lot. The subdivision will serve to restructure a fragmented site and encourage the continuing use of Lot 1 for agricultural pursuits. This supports the objective of the Small Lot Subdivision Policy, as well as the MSS objective to promote sustainable agriculture found in clause 21.05-2 and the SPPF objective to protect productive farmland found in clause 17.05-1.

18 The policy contained in clause 22.02 must be applied in order to achieve the objectives. It is not intended to be applied irrespective of the objectives or in a proscriptive manner.

19 Clause 22.02 paragraph (b) says it is policy that the following guideline will be applied when considering a resubdivision (realignment) of existing lots:

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The resubdivision of existing lots reflect minor common boundary changes to reflect manmade features (such as fence lines) or natural characteristics of the land.

20 It was argued on behalf of the applicant that the resubdivision in the existing case could not be said to reflect minor common boundary changes, and consequently should not be permitted. However, whilst the subdivision may not reflect this particular guideline, in my view it reflects many of the other guidelines set out in the Small Lot Subdivision Policy, such as:

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Proposals for re-subdivision of lots demonstrate that new property boundaries are based on planning grounds including consideration of the land capability and the environmental characteristics of the site.

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Proposals for re-subdivision of lots demonstrate that the subdivision will result in net environmental and/or agricultural benefits for the site and surrounding area.

21 The subdivision will also reflect the following guidelines in clause 22.02 paragraph (c):

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Property boundaries have been determined with consideration to the land capability and the environmental characteristics of the site and surrounding area.

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The creation of lots that are smaller than the minimum lot size specified in the zone for the land will only be considered where it can be demonstrated that resulting lots maintain the productive agricultural potential of the land in accordance with land capability and would not prejudice the existing agricultural enterprises on adjoining properties.

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The creation of lots that are smaller than the minimum lot size specified in the zone for the land should not be detrimental to environmental and landscape values in the area, and the continuation of established rural activities in the area.

22 The boundaries of the new lots have been determined with consideration to the land capability and environmental characteristics of the site. As noted previously, by including the productive river flats and associated agricultural infrastructure and existing dwelling on the one lot, productive agricultural potential of the land will be maintained. No new dwelling will be constructed on the banks of the Yarra River, which might be detrimental to the environmental landscape values of the area. Rather, the building envelope on Lot 2 will be located close to Menzies Road, which will minimise tree removal and works for a new driveway, and will be adequate to cope with septic tank effluent disposal. In addition, a section 173 agreement is required to be registered on each title requiring implementation of a land management plan. This must include a pest plant and animal control strategy, and will require protection and enhancement of the riparian area of each lot. This will guarantee improved environmental management of the land on an ongoing basis, which is an outcome that would not be achieved without the subdivision. I consider this further demonstrates that the objectives of the Small Lot Subdivision Policy will be implemented to protect the agricultural, landscape and environmental values of the shire, and other similar objectives expressed elsewhere in the LPPF and SPPF.

23 I acknowledge that there have been other cases where the Tribunal has refused to grant a permit for the resubdivision of existing lots in the green wedge because it will be contrary to orderly and proper planning and would result in the fragmentation of land ownership and the consequent loss of productive agricultural land.[2] As the Tribunal said in Green Wedge Protection Group Inc v Nillumbik SC[3]:

[40] In light of the above [ie the provisions of clause 31.01-2], applications of this type should not be based on an expectation or an assumption that because there is discretion for a permit to be issued for the use and development of each lot for a dwelling, that it is a fait accompli that this will happen. Rather, in considering any application for a discretionary use, it will be necessary to demonstrate that the use accords with the notion of orderly planning. This needs to be demonstrated in terms of the outcome being consistent with the scheme's strategic frameworks and the purpose of the zone as well as the land's capability to support the use.

24 In the two cases I was referred to, the Tribunal found that the outcome of the proposed resubdivisions were not consistent with the scheme's strategic frameworks. However, in the present case, I agree with Member Fong that the outcome will be consistent with the scheme's strategic frameworks and the purpose of the zone, as well as the land's ability to support the use. In this respect, I consider the relevant purposes of the Rural Conservation Zone are:

To encourage development and use of land which is consistent with sustainable land management and land capability practices, and which takes into account the conservation values and environmental sensitivity of the locality.

To provide for agricultural use consistent with the conservation of environmental and landscape values of the area.

25 My conclusion is that it would not be just and fair in the circumstances to cancel the permit. I do not consider that the submissions put by the Green Wedge Protection Group or the Friends of Nillumbik change the appropriateness of the decision made by Member Fong to grant a permit in application P2064/2005. The reasons set out in the Tribunal's order dated 16 November 2005 indicated that the policy issues raised by the applicant were considered. I have re-examined those policy related issues and have reached a similar conclusion. As a result, the permit that was granted should not be cancelled or amended.

[1] [2005] VCAT 2411

[2] see Green Wedge Protection Group Inc v Nillumbik SC [2002] VCAT 1751, Green Wedge Protection Group Inc v Nillumbik SC [2003] VCAT 631

[3] [2003] VCAT 631