The use and development as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.

Victorian Civil and Administrative Tribunal|2020-03-12

For the reasons given above, the decision of the responsible authority is set aside. A permit is granted subject to conditions.

Although my order does not include the 'Notes' suggested by the Council, such advisory information may be included in the permit that the Council is directed to issue.

The use of the land for a dwelling in the Farming Zone - Schedule 1.
Buildings or works associated with a use in Section 2 of Clause 35.07-1.
The construction of a building and works on land in the Environmental Significance Overlay - Schedule 1.

The use and development as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.

Appropriate measures must be implemented throughout the construction stage of the development to rectify and/or minimise mud, crushed rock or other debris being carried onto public roads or footpaths from the subject land, to the satisfaction of the Responsible Authority.

Before an Occupancy Permit is issued for the dwelling hereby permitted, or by such later date as is approved by the Responsible Authority in writing, the following works must be completed in accordance with the endorsed plans and to the satisfaction of the Responsible Authority:

The existing vehicle crossing providing access to the land from Flynns Creek Road must be upgraded between the edge of the existing road pavement and the property boundary to comply with the vehicle crossing standards as set out in Latrobe City Council's Standard Drawings LCC 306 and LCC 212 including provision of an all-weather sealed surface from the edge of the existing road pavement for a distance of six (6) metres toward the property boundary, or an alternative treatment to the satisfaction of the Responsible Authority.
All stormwater discharging from the site, buildings, vehicle accessways and works must be discharged to a water tank, soak well or otherwise discharged so as not to cause erosion, flooding or nuisance to the subject or surrounding land to the satisfaction of the Responsible Authority.

The areas provided within the property for vehicle access to the permitted dwelling and associated buildings and works, must be constructed and surfaced with concrete, gravel, crushed rock or hot mix asphalt so as to prevent mud or other loose material from being carried onto the road.

Sewage, sullage and other liquid wastes to arise from the development shall be treated and retained on site by a septic tank system in accordance with the requirements of the Environment Protection Act 1970, the Guidelines for Environmental Management: Code of Practice - Onsite Wastewater Management 891.4 (2016) and the Responsible Authority.

Stormwater must be diverted away from effluent disposal fields to the satisfaction of the Responsible Authority.

All waste water and liquid is to be contained and treated on site by a septic tank system or equivalent. The system must be at least 60 metres (Primary Treatment) or 30 metres (Secondary Treatment) from any watercourse and/or dam on the subject or neighbouring properties, and must meet the Guidelines for Environmental Management: Code of Practice - Onsite Wastewater Management 891.4 (2016).

Prior to the commencement of buildings and works, an Application for a Permit to Install a septic tank system must be submitted and approved by the Responsible Authority prior to any installation.

Once building works have commenced they must be completed to the satisfaction of the Responsible Authority.

All buildings and works must be maintained in good order and appearance to the satisfaction of the Responsible Authority.

This permit as it relates to use will expire if the use does not commence within four (4) years after the issue date of this permit.

In accordance with section 69 of the Planning and Environment Act 1987, an application may be submitted to the responsible authority for an extension of the period referred to in this condition.

This permit will expire if one of the following circumstances applies:
- (a) The development is not started within two years of the issue date of this permit.
- (b) The development is not completed within four years of the issue date of this permit.

In accordance with section 69 of the Planning and Environment Act 1987, an application may be submitted to the responsible authority for an extension of the periods referred to in this condition.

[1] The submissions and evidence of the parties, any supporting exhibits given at the hearing and the statements of grounds filed have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.

[2] Relevant content of amendment C105, as adopted by the Council, was tabled by Council at the hearing. The amendment was gazetted on the 21 November 2019 and the approved content in relation to the Rural Land Use Strategy is consistent with the material submitted at the Tribunal hearing, in particular, the rural policies at Clauses 21 and 22 and Schedules 1 and 2 to the Farming Zone.

Environment Act 1987

Civil and Administrative Tribunal Act 1998

Grinstead-Jones v Latrobe CC [2020] VCAT 330 (12 March 2020)

In her submission for the Council, Ms Crawford drew my attention to three Tribunal decisions concerning proposals for a dwelling in the Farming Zone.
In Bailey v Moyne SC [2010] VCAT 771, Senior Member Bennett considered a proposal for a dwelling on a 28 hectare site used for beef cattle grazing in the farming Zone. In refusing the proposed dwelling, Senior Member Bennett notes at paragraph 4:
1. There is no doubt that the land is being used for productive agricultural purposes, but that has occurred even without a dwelling on the site. It is evident that many of the smaller lots within the area are being used productively without the necessity of a dwelling being located on each one. Construction of a dwelling immediately changes both the land value and the potential for the land to be eventually taken out of productive agricultural use. While I do not doubt that the current owner intends to continue with beef cattle production, there can be no guarantee that at some future time it will not be purchased as a lifestyle property.
In Andrews v Hepburn SC & Anor [2013] VCAT 408, Senior Member Potts considered a proposal for a dwelling on a site of 8.5 hectares in the Farming Zone. At paragraphs 18 and 19, Senior Member Potts observes:
1. Through the MSS, the Council recognises that there are opportunities to support diversification of agricultural activity in order to address the decline in traditional agricultural activity. It is acknowledged that such diversification will be through smaller scale agricultural enterprises supported by off-farm income which will none the less contribute economically to the region and achieve positive land management and land rehabilitation outcomes.
2. On this basis, diversification of agricultural land use and hence small agricultural enterprises can be supported by planning decision making. However in supporting such an outcome another key planning strategy is to not support dwellings on small lots unless they are associated with existing agricultural uses. There is therefore a clear position in policy to ensure bone fide agricultural activity is being undertaken on the land when a dwelling is also being proposed. (my emphasis).
In refusing the application, a key issue in Senior Member Potts' decision is the lack of a business plan. The issue is encapsulated at paragraph 39 as follows:
1. The commercial nature of the activities appears to be an aspiration rather than a clear and substantive agri-business plan. Indeed no systematic farm or agri-business plans have been placed before me to support the application. Indeed, Mr Andrews evidence about how many cattle he may graze on the property and how he will attend to the stock is vague and there is little detail by way of a farm business plan.
Finally, in Bourke-Finn v Ballarat CC & Anor [2013] VCAT 908, Senior Member Potts considered a proposal for a dwelling in the Farming Zone on a site of 2.5 hectares. In the description of the proposal, Senior Member Potts explains:

Grinstead-Jones v Latrobe CC [2020] VCAT 330

At a glance

Court

Decision date

Source

Judgment (20 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (2)

Grinstead-Jones v Latrobe CC [2020] VCAT 330 (12 March 2020)