MEDIUM NEUTRAL CITATION: [2002] VCAT 973

The Responsible Authority's decision is varied. A permit shall issue generally in accordance with the Notice of Decision and two new conditions shall be inserted.

9. Prior to commencement of the dwelling, the owner/applicant must table a planting plan showing dimensions of the area to be planted along and around the gully and such plan shall include a schedule of plant species to be used to the satisfaction of the Responsible Authority.

10. The planting referred to in Condition 9 must be undertaken within 6 months of completion of the dwelling and then maintained to the satisfaction of the Responsible Authority.

Ms R Mouy, Town Planner, represented the Responsible Authority

Ms E Hogan, Town Planner, represented the Applicant for Review. She called evidence from Mr I Aberdeen.

Mr J Atkins of Counsel, represented the Permit Applicant. He called evidence from Mr P Jewell, Town Planner and Mr Frank, Applicant and Dairy Farmer.

1. This is an Application for Review pursuant to Section 82 of the Planning and Environment Act 1987 against the decision of South Gippsland Shire to issue a Notice of Decision to Grant a Permit for the development and use of a dwelling and construction of a shed.

1. The decision to grant a permit has been made without fundamental information pertaining to the rural activity to be conducted on the land in accordance with the relevant sections of the State and Local Planning Policy Framework of the South Gippsland Planning Scheme and the decision guidelines of the Rural Zone and Clause 65.

2. Information which is fundamental to the decision whether to grant a permit have been purportedly reserved for consideration by the Responsible Authority after the grant of a permit to the exclusion of persons affected.

3. The proposal does not adequately address or make proper provision to protect the adjoining established horticultural enterprise and avoid a future conflict in land use.

4. The proposal fails to support a recent VCAT Review (No. 2001/26894) regarding water resource management in the general area.

3. It is proposed to erect a three bedroom dwelling of about 14.3 metres by 8.8 metres (with a verandah)on a rural property. A separate farm shed is also proposed about 15 metres in from the northern boundary of the site. The proposed dwelling will be single storey with its living areas and verandah oriented to the south. The dwelling would be set back about 360 metres east of the Koonwarra - Pound Creek Road.

4. The dwelling would be located about 73 metres from the northern property boundary.

5. The Tribunal was told there were two outbuildings proposed as part of the application. The first will adjoin the proposed dwelling whilst the second will be located about 250 metres from the western boundary. One outbuilding will be used in conjunction with the dwelling while the other will be used in association with agricultural activities taking place on the subject land.

6. The subject site is located as Lot 2, PS 426181, Koonwarra - Pound Creek Road, Pound Creek. The site is 24.18 hectares in area. It is irregular in shape and is located on the north eastern corner of Koonwarra - Pound Creek Road and Wisdoms Road. There are no buildings on the site.

7. The lot is undulating and features a natural gully through the middle of the site. It contains two dams and is currently used for cattle grazing.

8. Land to the north, east and south is also used for grazing purposes. Land to the west on the other side of Koonwarra - Pound Creek Road is used for intensive horticulture involving growing of herbs.

9. Land to the south, whilst being used for grazing purposes, has been subdivided into relatively small lots (ie. in the order of 20 to 30 hectares in size). One of these lots contains a dwelling, although the allotments are operated as one farm holding.

10. The subject site is zoned Rural under the South Gippsland Planning Scheme. There are no overlay controls

11. A permit is required pursuant to Clause 35.01-1 for use of a dwelling on a lot less than 40 hectares in area. Clause 35.01-3 requires a permit to construct a building or to carry out works associated with a Section 2 use, and to construct a building (shed) within 100 metres of a dwelling not in the same ownership. Therefore only that shed which is within 100 metres of the dwelling to the north of the subject site requires permission.

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

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.

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

"A lot may be used for one or more dwellings provided the following requirements are met:

* Access must be provided via an all-weather road and be of adequate dimension to the satisfaction of the responsible authority.

* The dwelling must be connected to a reticulated sewerage system or if not available, the waste water must be treated and retained on-site in accordance with the State Environment Protection Policy (Waters of Victoria) under the Environment Protection Act 1970.

* The dwelling must be connected to a reticulated potable water supply or have an alternative potable water supply with adequate storage for domestic use as well as for fire fighting purposes to the satisfaction of the responsible authority.

* The dwelling must be connected to a reticulated electricity supply or have an alternative energy source to the satisfaction of the responsible authority.

The Tribunal was advised that the proposed dwelling will meet these requirements.

14. Clause 35.01-6 refers to Decision Guidelines (in addition to Clause 65) and in particular:

* How the use or development relates to rural land use, rural diversification and natural resource management.

* Whether the dwelling is reasonably required for the operation of the rural activity connected on the land.

* Whether the site is suitable for the use or development and the compatibility of the proposal with adjoining and nearby farming an other land uses.

* Impact n proposed and existing rural infrastructure.

* The design, colours and materials to be used and the siting, including the provision of development and effluent envelopes for any buildings or works.

* The impact of the use or development on the existing and surrounding rural uses.

15. Other planning controls and policies of relevance in this application are included in the following clauses:

16. The Tribunal was told that Amendment C10 to the South Gippsland Planning Scheme had been exhibited. One of the parts of the amendment proposes reducing the threshold allotment size for a dwelling on a rural allotment from 40 hectares to 20 hectares in the Rural Zone.

17. The Tribunal advised the parties that it did not give that amendment great weight because the amendment has not been subject to independent review by an Independent Panel, nor has the Responsible Authority considered any report or made a decision concerning adoption of this amendment. It notes there are over 200 submissions to this amendment and the Tribunal was told there was at least one submission regarding the reduction to the threshold allotment size for dwellings.

18. At the review hearing all parties tabled and read from detailed written submissions. The Tribunal was provided with an aerial photograph of the subject site and nearby properties, plans and a management plan for the proposed site and the new dwelling. All witnesses were available for cross-examination. In addition the Tribunal undertook an inspection of the site following the review hearing.

19. Ms Mouy for the Responsible Authority, argued that the footprint of the proposed building and associated outbuilding totalled 190.6 square metres which when considered in the relation to the 24.8 hectare lot, is by no means a significant loss.

20. Ms Mouy also argued that whilst the proposed soil quality was moderate to high, the site was not really suitable for crop raising because the site features a gully which runs from the east of the lot to the west which is constraint which would make it largely unsuitable for crop raising. She argued that the animal husbandry is the most suitable use for the lot, even if the lot is not of a size to generate an income on its own. Ms Mouy argued that the proposal was consistent with the Council's Municipal Strategic Statement which required that a range of housing opportunities should be provided "in areas where development will not ... result in a significant loss of high quality agricultural land."

21. Ms Mouy also argued that the Council found merit in the proposal to erect a dwelling on a lot of this size as reflected in Amendment C10 which proposes to reduce the minimum lot size for which the use of a dwelling does not require a permit to 20 hectares. She also argued that is was unlikely that there will be any visual detriment caused to adjoining property owners given that the proposed dwelling is small in size, has been well setback from the boundaries and will be constructed out of subdued materials and colours. She argued this was consistent with the proposed Local Rural Policy.

22. Ms Hogan submitted that the construction of a dwelling on the proposed land is not necessary to conduct a rural activity or cattle grazing on the land. She claimed the development of the dwelling on this size allotment is not sustainable and has the potential to change the future land use in the immediate area to a lifestyle property or rural living. She drew a distinction between the proposed dwelling and her client's property which is supported within the Planning Scheme through policy and zoning provisions.

23. Ms Hogan argued that the proposed use on an allotment less than 40 hectares will imply that existing subdivision patterns in the area can achieve the same outcomes. She claimed that while a great deal of scrutiny is required for intensive forms of agricultural, due to off-site effects, very little scrutiny appears to apply to dwellings on lots less than 40 hectares. She claimed the only requirement for approval appears to be a site plan and some elevation drawings.

24. Ms Hogan argued the approval of the proposed dwelling will set a precedent for future development of those allotments located on the sough side of Wisdoms Road. She claimed this is a real concern to the objector as the proliferation of housing and associated impacts will educe the isolation Freshzest (her client's company which produces herbs) currently enjoys to ensure it fulfils its requirement to supply "safe" fresh herb products from the Pound Creek facility.

25. Ms Hogan also raised concern about the issue of water resources in the catchment. She claimed with the increased potential for dwellings on the smaller holdings on the south side of Wisdoms Road will come the expectation for domestic and stock water supply. She claimed the cumulative effect will again impact on the catchment that meets at the Freshzest property boundary, and that if all the allotments were developed (that is the allotments to the south of the subject site) within the immediate area and each had one dam, "as-of-right" up to 3ML, the potential exists for 60ML of water entitlements. She claimed most holdings may require at least two dams similar to the application at hand, and therefore place greater impact on the water catchment.

26. Ms Hogan argued that unless the Shire is provided with sufficient information, as required under the Decision Guidelines of the Rural Zone, there are no checks and balances and impacts are not considered. She claimed this is a very different scenario in the Rural Living Zone where prior to its release to the market, scrutiny is required under the terms of Ministerial Direction No. 6. She claimed this type of scrutiny does not occur in the Rural Zone, where possibly the majority of permits for dwellings are being issued. She claimed these incremental rural housing decisions must be taken seriously to protect the significant economic benefits of agriculture in the area and avoid the cumulative effect that can occur on the natural resources, such as water.

27. Ms Hogan also argued that the Council Officer did not give any consideration to the potential impacts of the proposed dwelling on adjoining properties and no information was submitted to satisfy Clause 35.01-6. She also claimed that the Officer relied on the South Gippsland Rural Strategy, which is not an incorporated document or a referred document within the Planning Scheme.

28. Ms Hogan also referred to a former State Amendment S31. She claimed the policy basis of the Amendment has the same fundamental principles which apply to the current Rural Zone, in particular the description of High Quality Agricultural Land which has been directly transferred to Clause 72 of the VPP's.

29. Ms Hogan referred to provisions for subdivision, even for bona fide farming purposes and claimed there was a future expectation that development can occur.

30. Ms Hogan called Mr Ian Aberdeen, Agricultural Scientist, whose evidence was:

* The property is an agricultural resource in the Rural Zone of the South Gippsland Shire, suit to the dairy, beef and horticultural industries which the Shire seeks to promote.

* The erection of a dwelling on this property is not necessary to allow it to be used for grazing cattle.

* The most likely use of the proposed dwelling is for rural residential/living purposes.

* There is a distinct possibility that further development of the subject land for hobbies, may substantially reduce or remove cattle grazing as the land-use on this property.

31. Mr Atkins on behalf of the permit applicant, advised that the existing use of the land is cattle grazing and that use will continue. He advised that the owners, Mr and Mrs Frank, both come from farming families, and until recently they had always resided on farms. He advised that Mr Frank had prepared an agricultural management plan for the proposed development of the property for grazing which is attached to these submissions. He advised that no permit is required to graze cattle on the site or to carry out pasture improvements and fence paddocks to better achieve more efficient grazing practices and improve carrying capacity. He advised to implement improvements referred to in the agricultural plan Mr and Mrs Frank will need to live on the farm. He advised Mrs Frank has been involved in farming with her husband on two dairy farms, and previously on family owned farms during her childhood. He advised she will assist her husband in the management of the farm, and in implementing the improvements referred to in the agricultural plan.

32. Mr Atkins advised that while a small area of the property will be removed from the cattle grazing area by the construction of the dwelling and proposed sheds, the actual carrying capacity of the property will be increased by pasture improvement and more efficient rotational grazing practices.

33. Mr Atkins referred to evidence from Mr Peter Jewell, Town Planner, whose summary was:

"In my opinion, the proposal is a reasonable redevelopment which is suited to the location. In summary, I consider the development:

* accords with the relevant provisions of the South Gippsland Planning Scheme;

* will not prejudice the use of the land for rural purposes;

* will not impact on adjacent use or development; and

* has no unreasonable amenity impacts on neighbours, or the area generally.

I consider the form, height and scale of the development as appropriate given the site setting and having regard to:

* the size of the site and the opportunities presented with regard to the site conditions, the conditions and use of adjacent properties.

In summary, I believe the development as indicated on the plans is worthy of a planning permit."

34. Mr Jewell stated at page 11 of his evidence statement:

"As stated above, the constriction of a single dwelling on the property will not compromise the overall use of the premises for rural activities. I envisage that the property will continue to be used for grazing purposes. Indeed the occupation of the site will probably lead to an enhancement of the rural potential of the site. This is by way of on site supervision, better maintenance and attention to the various activities that arise with rural activities. By this I include animal husbandry, weed control and improved pastures.

It follows that there will be no loss of productive agricultural farm land or the 'agricultural base' of the area. For reasons described, I believe there is every reason to believe that the occupation of the site by Mr & Mrs Frank will lead to an enhancement of the productive capabilities of the site. Whilst the size of the property is well less than that required to maintain a reasonable farm income, it could be used with other properties by or contract employment on other properties such as to be part of a sustainable income. Many rural occupiers derive their income from several different sources or dispersed properties to make ends meet. The traditional style of all activities on one family property appear to be on the decline and these changes mirror similar household income patterns within urban areas."

35. With reference to possible conflicts between the proposed dwelling and existing surrounding uses, Mr Jewell stated:

"In relation to "existing uses of the surrounding land" I again see no conflict. The dwelling is well removed from the appellant's property (some 360m). It is difficult to conceive of any domestic activities undertaken at the dwelling that would impact upon the somewhat distant herb farm. I note that the herb growing areas are enclosed in igloo structures. Likewise I believe there is no impact on the adjacent properties which appear to be used for grazing purposes."

36. With regard to concern about impact on the water catchment, Mr Jewell advised:

"The position of the dwelling will not impact on the water catchment or overland flow through the property. The capability of the land for farming purposes will similarly not be impacted upon. 1 understand the rainfall for this locality is in the order of 970mm (approximately 38 inches). This is quite high compared to many locations within the state. Given this quantity of rainfall and the fairly minimal building area, I expect no impact on drainage or overland flows.

37. With respect to the issue of whether the dwelling was consistent with the rural zoning, Mr Jewell stated:

The question of whether the dwelling is reasonably required for the operation of the rural activity on the land can be answered in two parts. Firstly, by considering what occurs on adjacent and nearby properties. I understand that there are many similarly sized properties within the locality which equate to the dwelling density proposed for the subject site. The land in the surrounding area is overwhelming rural. The distribution of dwellings does not appear to compromise this activity.

It is worth noting that the proposal does not involve the subdivision of any land. Accordingly, issues of 'breaking up' of productive farm 'units' is not applicable.

The second component of the 'reasonable' criteria is whether the proposal will in fact limit the rural use of the land. I n my opinion the answer is not in any meaningful way. For reasons given above I believe the contrary is the case, the construction of a dwelling has the very real prospect of increasing the yield and productive use of the property.

I acknowledge that the development is not absolutely necessary for the land to be used for rural activities however I believe the planning scheme does not suggest such a narrow interpretation that this is a matter by which a proposal can fail in all cases. Rather I believe the zoning purpose and that of the relevant planning policies, suggest weight be given to several criteria the value of which will depend upon the circumstances of each case. Relevant considerations might be the issue of whether the development will enhance or detract from the rural use of the land. The association between the development and land use and the practical realities of rural activities within a certain locality.

I note that the development could occur without the need for a planning permit if the property was 40 hectares rather than the current 24 hectares. I am not an expert in viable farm sizes but my understanding is that a property of 40 hectares would not sustain a household, in this location, on the basis of grazing or dairying. I understand the minimal holding in this regard is more like 160 hectares (ie. 400 acres) for grazing.

Given these figures it suggests that the nexus between an 'as of right' dwelling (ie. 40 hectares) and self sufficiency in terms of rural enterprises is not tied to the standards prescribed in the planning scheme. This further suggests that the 'reasonable' suggestion within Clause 35.01-6 should take into account a broad range of factors. Ultimately the question posed by the control is: will the dwelling assist in productive farming activities not can the farming enterprise be undertaken without the dwelling?"

38. Mr Atkins also called Mr Greg Frank, the part owner of the land to explain his experience and proposed farm management plan. Mr Frank explained how he intended to undertake reseeding and weed eradication, introduce new fencing to control rotational use of the farm, and introduce new planting along the watercourse of the site. At the conclusion of the hearing the Tribunal requested further detail of this planting. The correspondence provided by Mr and Mrs Frank explained the planting area will be 420 metres long and 5 metres wide, representing an area of 0.21 hectares.

39. I consider that the Responsible Authority's decision was essentially correct. I have required further details on the planting area, ie. notation on the Farm Management Plan and specific detail about species to be used. I consider the planting will complement the existing farm and the dwelling.

40. I acknowledge the concerns raised by objectors about the potential for this site to change its use from "rural to a "rural residential" holding. However I am satisfied by the evidence of Mr Jewell and Mr Frank that the site will not be conducted nor will it appear to be conducted as a rural residential land holding or hobby farm.

41. Whilst it is acknowledged that the 24 hectare site would not pose as a viable economic unit in itself, that is, a unit which would sustain a farm family, I note the site, whether it contained a dwelling or otherwise, would not achieve that objective for cattle or dairy farming. However the main test of whether the dwelling is appropriate should be assessed on the basis of its contribution to achieving the purposes of the rural zoning.

42. I also note the site at 24 hectares (or 60 acres) whilst not being of a size to be "economically viable" is really too large to be called a rural residential or hobby farm. Whilst I acknowledge Mr Aberdeen's evidence that the site is not economically viable, I note his evidence that the site could still be seen to be technically viable. From by observations it gives the appearance of a rural land holding consistent with most other rural holdings in the locality. I note also there is nothing to stop Mr and Mrs Frank from purchasing or leasing more rural land nearby if and when circumstances arise, thereby enhancing their current land holding.

43. Having the viewed the site and considered all the submissions, I am satisfied that the proposed dwelling will complement the purposes of the Rural Zone in this instance because

* the site will continue to operate as a bona fide farm

* the Franks are farmers and wish to undertake works to upgrade the farm and supplement their own incomes

* the measures outlined by Mr Frank in his evidence and the detail contained within the Farm Management Plan, together with the proposed planting of the gully

* will encourage improvement of existing agricultural techniques and a more integrated approach to land management.

44. I agree with Mr Jewell's submission of the central issue in this case which essentially require an assessment of how the dwelling will impact on the integrity of this rural area. I am satisfied on the evidence supplied and on my own observations of the locality, that the dwelling will appear as an adjunct to this rural land holding and will assist the owners in the management of this farm because they will be able to better supervise/manage their farm on site.

45. I acknowledge the concerns raised by Ms Hogan about this application being seen as the "thin edge of the wedge" and acknowledge that some landowners who already own land which has been subdivided into 20 or 30 hectare sites could see this as an opportunity to sell land at a relatively inflated value on the basis that each lot can contain a dwelling. I note however that those lots to the south of the subject site were subdivided some 25 years ago and yet those sites still remain in a large farm holding. Whilst there is some sympathy for the concerns raised, there was no evidence produced that that scenario will in fact occur. On the other hand the evidence of Mr Frank together with his Farm Management Plan and his experience in farming, satisfies me that such scenario, whilst possible, is unlikely in this situation.

46. During the hearing I questioned the parties about whether the dwelling had been designed for better solar protection and energy efficient. I note this is not a matter normally considered within the purposes of the Rural Zone, but I suggest the applicant may benefit from the provision of north-facing eaves and elimination or reduction in west-facing windows to reduce heating/cooling costs. I have not made this a condition on permit but suggest this to assist in a more sustainable house design practices.

47. For the abovementioned reasons the Application for Review is varied. Two new conditions shall be inserted principally to address planting of vegetation in and around the gully. I am satisfied that the proposal is consistent and that the Responsible Authority's decision was essentially correct.