Victorian Civil and Administrative Tribunal|2000-05-31

Hobbs A v Macedon Ranges SC [2000] VCAT 1119 (31 May 2000)

Application under Section 77 of the Planning and Environment Act 1987 (the Act) to review a decision to refuse a permit.

The order of the Tribunal is that the decision of the Responsible Authority is affirmed. No permit is granted

Ms Carol Young, Town Planner, appeared on behalf of the Responsible Authority, Macedon Ranges Shire Council.

Mr Derrick Western, Respondent/Objector, appeared on his own behalf.

Ms Sally Macindoe, Solicitor, appeared on behalf of the Respondent Water Authorities. Ms Macindoe called Mr John Glossop, Town Planner, Dr Nicholas O'Connor, Environmental Scientist, Mr Ray Phillips, Agricultural Scientist, as witnesses in support of her submissions.

Mr Christopher Wren, Barrister appeared on behalf of Mr Alan Hobbs, the permit applicant and applicant for review. Mr Wren called Dr Robert Van der Graaff, Soil Scientist, Mr Lindsay Jones, Agricultural Scientist, Mr Pro Mitchell, Civil Engineer, Mr Samuel Paton, Agricultural Economist, and Mr Chris Dance, Landscape Architect, as witnesses in support of his submissions. Mr Wren also called Mr Malcolm Jack, Town Planner, as one of his witnesses.

1. This is an application to review the decision of the Responsible Authority to refuse permission for a 33 lot subdivision of Bullengarook Park, a substantial rural property on the Bacchus Marsh-Gisborne Road adjacent to the southern edge of the municipal boundary. The Responsible Authority refused permission for the subdivision, in accordance with the provisions of the Planning and Environment Act, given that the water authorities, who are referral authorities under the scheme, opposed the grant of the permit. The Responsible Authority otherwise supported the proposal. The parties and the witnesses in the appeal made both written and verbal submissions and a number of photographs, plans and other documents were tendered to the Tribunal.

1. These reasons are divided into two parts the first being Background Information, and the second being Discussion. Background information is primarily a series of extracts from submissions, the planning schemes both existing and proposed, and other relevant policies. The discussion is a discussion of the Tribunal's reasons for its decision.

1. The Bacchus Marsh-Gisborne Road from Mt Bullengarook Southlands extends along an elevated ridge with spectacular views both to east and west. The ridge is basically an ancient larva flow from Mt Bullengarook which filled an ancient valley is now elevated as a result of the erosion of the softer material to either side over a very long period of time. The following extract from Mr Dance's submission, describes the site and locality in some detail:

"Occupying a total land area of approximately 512 hectares, 'Bullengarook Park' is a property of regional importance and is located approximately half way between the townships of Bacchus Marsh and Gisborne on the Bacchus Marsh - Gisborne Road (see Context Plan). Subject to detailed investigation, a portion of this land is proposed to be subdivided into approximately 33 allotments - 2 primary lots and 31 secondary lots.

As evidenced in the Context Plan, the subject land generally comprises a plateau contained between Mount Bullengarook, approximately 2 kilometres to the north, the heavily wooded Pyrites Creek catchment to the east and south, and the Goodman Creek catchment to the west. Both of these catchments are within the Wombat State Forest and feed into Merrimu Reservoir - the Pyrites Creek directly, and the Goodman Creek indirectly via a tunnel under Bacchus Marsh - Gisborne Road.

The following observations should be noted in relation to the site's context:

* The stunning views available to motorists using the Bacchus Marsh - Gisborne Road, including 1800 views across the subject land and Wombat State Forest.

* Enclosure and definition of the subject land by way of the surrounding natural drainage systems and associated escarpments.

* The dramatic south-descending spur on which the Bacchus Marsh - Gisborne Road is located, allowing for extraordinary views from this corridor across to the south and west.

* The mainly cleared pasture land occurring on the flat land about the main road.

* The relatively short (and equal) distance to Gisborne (approximately 14km) and Bacchus Marsh (approximately 13 km), and in turn the Calder and Western Highways respectively. The site is also relatively close to Melbourne, being only 45 minutes away off peak."

1. This proposed rural residential subdivision has been prepared in considerable detail, and is supported by an array of expert reports. All of this material was the subject of evidence before the Tribunal. The following extract from Mr Malcolm Jack's submission describes the proposed subdivision:

The Application for Planning Permit seeks to subdivide the 512ha of "Bullengarook Park" within the Shire of Macedon Ranges into a Primary Lot, split into two by the Bacchus MarshGisbome Road and 31 other Secondary Lots. (See Proposed Plan of Subdivision at Attachment 4). The design of the subdivision incorporates the following features:

* The sensitive incorporation of existing features including mature trees, dams and water-courses.

* Recognition of the historic features of---the property, including the historic homestead of "Bullengarook Park", the site of Matson's 1840s homestead, and the sites of Goodman's Hut and Tilley's Hut.

* The specification of a building envelope for each lot in the western precinct.

* The retention of all waste water on the property, supported by septic tanks, so that nutrients and effluent will not leave the curtilage of any dwelling in the development.

* Electricity will be fully reticulated and connections to each lot will be placed underground.

* The subdivision roads will conform to VicRoads and Country Fire Authority standards.

* A planting and landscape schedule will be prepared in conjunction with Council after approval of the plan of subdivisions.

* Management and maintenance of the estate will be supported by way of an agreement under Section 173 of the Planning and Environment Act, providing amongst other things for a body corporate to manage common property on the west side and a body corporate to manage common property on the east side of the Bacchus Marsh-Gisborne Road.

The subdivision may occur in stages, the detail of which will be discussed with the Responsible Authority.

Site management will be overseen by the Hobbs family, living on site in the "Bullengarook Park" homestead.

The proposed subdivision is shown on the Subdivision Plan attached to this report and in the report by Chris Dance Land Design. In the western precinct, to the west of the Bacchus Marsh-Gisborne Road, the primary lot (Lot 1) comprises 112.76 ha, with the remaining eight lots average 1.0ha in size. The land to be placed in common ownership would total 7.252 ha.

Development on the eastern side of Bacchus Marsh-Gisborne Road would support 24 allotments (one primary lot and 23 secondary lots). The primary lot in this eastern area comprises approximately 336ha and the secondary lots range in size from 1.2ha to 4.8ha. The average lot size of the secondary lots is 1.6ha.

The following table sets out sizes of lots (lots 1 and 33 form the primary lots).

The remainder of the 512 ha is taken up with proposed roadways etc. (See Proposed Plan of Subdivision.)

The proposed subdivision conforms to the area requirements of the planning provisions:

The minimum area required for subdivision is greater than 450ha ("Bullengarook Park" -512 ha in Macedon Ranges Shire).

The number of lots does not exceed 33 lots: one Primary Lot and up to 32 Secondary Lots. (The Primary Lot is effectively split by the Bacchus Marsh-Gisborne Road).

The area of each Lot is at least 1.0 ha. The frontage of each Lot is at least 20 metres.

The basis for the sizes of the Primary Lot and Secondary Lots is given in the reports accompanying the Application by Chris Dance Land Design "Site and Subdivision Planning", Sam Paton and Associates Pty. Ltd "Agricultural, Economic and Land Capability Assessment", Soil Solutions Pty Ltd "Land Capability and Water Supply Investigations", and P T Tomkinson & Associates Pty Ltd "Engineering Issues". From the point of view of environmental enhancement, the size of the Secondary Lots is less important than the siting of the building envelopes, effective effluent disposal and appropriate landscape treatment.

The areas shown as common property will be managed by bodies corporate. An easement over that part of lot 1 adjacent to Goodman's Creek will provide access to the creek by owners of the other lots on the west side (lots 2 to 9)."

1. The Macedon Ranges Planning Scheme is an old format planning scheme and the subject land falls within a Rural Zone under the provisions of chapter 2 of the scheme. Clause 4 of Section 14 of the scheme, the zone provisions, provides that a permit may be granted for a primary/secondary lot subdivision permitted by Clause 4.4 of the zone. The purposes of the zone are:

To maintain the land in sustainable, broad hectare, rural use.

To ensure that land use and development is appropriate to the area and maintains the natural resource, amenity and environmental values of the non urban areas.

To maintain and enhance the landscape character of the non urban areas and encourage both the retention of existing vegetation and revegetation.

To provide limited opportunities for well planned, sustainable small lot subdivision compatible with the above objectives.

To provide opportunities for uses compatible with, and ancillary to, the primary purpose of the zone."

6. Clause 2 of Section 14, sets out performance criteria with which rural subdivision use and development must comply. Clause 2 is a lengthy clause, and the performance criteria which we consider to be most relevant are set out below:

"* Primary, broad hectare, rural resource uses to predominate.

* Primary lots to occupy the best agricultural land and to be sustainable and manageable as at least a commercial, part time farm.

* Secondary lots to occupy good agricultural land only when this is not required for the viability of the larger farm and to be sustainable and manageable as farmlets or rural residential lots.

* Development associated with all uses to be dispersed or in small clusters and well set back from main or secondary roads.

* The site to be physically suitable for the proposed use. The responsible authority to be satisfied that the proposed use and associated development will not increase any environmental risk.

* Subdivision layouts to be responsible to the character of the area, the topography, existing vegetation and physical constraints and opportunities.

* Buildings and works not to be visually obtrusive, to blend with the landscape and to be screened, where appropriate, by natural topographic features or planting, when exposed to the public view.

* The sites, environs and viewsheds of notable buildings, works, objects and sites to be protected from development and associated activity which may have a detrimental effect on their appearance and function.

* Before deciding on an application to use or subdivide land, or the approval of a development plan or an environmental management plan, the responsible authority must also consider its "Environmental Management Guidelines" for the non urban areas - Incorporated Document No. 5.

* The responsible authority may also consider - Shire of Gisborne Non Urban Zones Review Background Report 1994 - Incorporated Document No. 6."

7. Under the proposed VPP based planning scheme, the subject land will be included within a Rural Zone. No overlays are proposed for the land although there will be various vegetation protection, and wildlife corridor overlays affecting nearby road reserves. The purposes of the VPP Rural Zone are:

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). To encourage:

* 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."

8. The zone provisions relating to the Rural Zone include a comprehensive set of decision guidelines at Clause 35.01-6. The decision guidelines which seem to be of most relevance to us are set out below:

Before deciding on an application to use or subdivide land, construct a building or construct or carry out works, in addition to the decision guidelines in Clause 65, the responsible authority must consider, as appropriate:

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

* Any Catchment and Land Protection Strategy and policies applying to the land.

* The capability of the land to accommodate the proposed use or development, addressing site quality attributes including soil type, soil fertility, soil structure, soil permeability, aspect, contour and drainage patterns.

* 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 conducted on the land.

* The maintenance of farm production and the impact on the rural economy.

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

* The farm size and the productive capacity of the site to sustain the rural enterprise and whether the use or development will have an adverse impact on surrounding land uses.

* The need to prepare an integrated land management plan.

* The requirements of any existing or proposed rural industry.

* An assessment of the likely environmental impact on the natural physical features and resources of the area and in particular any impact caused by the proposal on soil and water quality and by the emission of noise, dust and odours.

* The impact of the use or development on the flora, fauna and landscape features of the locality.

* The impact on the character and appearance of the area or features of architectural, historic or scientific significance or of natural scenic beauty or importance.

* The location of any building or works with respect to the natural environment, major roads, vistas and water features and the measures to be undertaken to minimise any adverse impacts."

9. In 1999 there were a number of applications for review (No 1998/34846 and others) involving the Baw Baw Shire, Melbourne Water, and four separate applicants. The proposals were all for dwellings or subdivision and dwellings within the catchment of the Tarago Reservoir. The presiding member in this application for review was the Tribunal in these Baw Baw cases.

10. The Tribunal in the Baw Baw cases decided that three of the four cases raised issues of policy that were of State significance, and sought a submission from the Minister for Planning prior to making recommendations to the governing Council in respect of the applications for review. By letter dated May 1999 the Minister for planning made a submission in response to the Tribunal's request and that letter included Interim Guidelines to facilitate the decision of the Tribunal. The submission from the Minister, and the Minister's interim guidelines are set out below:

"Further to my letter to you of 21 October 1998 in response to your letter of 24 September 1998 requesting that I make a submission under Section 41(4)(a) of the Planning Appeals Act 1980, to the Tribunal hearing the above Applications for Review, I have examined the issues relating to this matter and I am pleased to provide the following comments.

The approval of the Baw Baw Planning Scheme and the revocation of the Buln Buln Planning Scheme were both gazetted on 17 December 1998. As a consequence, all the applications for review will now have to be decided upon on the basis of the provisions of the Baw Baw Planning Scheme rather than those of the Buln Buln Planning Scheme.

The Tarago Reservoir is currently used as a source of potable water for Neerim South and occasionally for other areas. Although this is only a relatively small scale operation, it nevertheless remains important that appropriate measures are taken to adequately protect the quality of water entering, and stored in, the Tarago Reservoir. It is also understood that there could be longer term interest in using the reservoir for the regular supply of potable water to significantly larger population areas. Planning for the catchment area should ensure that the option of greater future use of the reservoir for potable water supplies is protected. The importance of catchment protection is outlined in Section 15.01 of the new Victoria Planning Provision's State Planning Policy Framework. A copy of the relevant section is attached.

The catchment area of the Tarago Reservoir is an "open catchment". It is appropriate that a reasonable range of low impact uses, which have the potential to be consistent with the protection of water quality, should be able to occur within the catchment area. Nevertheless, many specific development proposals should be careful evaluated to assess their suitability for establishment in the catchment area. In addition, approvals for some uses and development may need to be subject to specific conditions to ensure that they do not contribute to any deterioration of water quality within the catchment.

For the reasons that are outlined above, I do not consider that all new development proposals in the Tarago Catchment can be dismissed out of hand. Rather, an appropriate set of principles is require which can guide decision making on specific applications. Many of the issues applying in the Tarago Reservoir catchment will also apply in other water supply catchment areas in the state. As a result I have proposed that a thorough review of the issues be undertaken through a process which involve representatives of the relevant interests and agencies. This process will take some months to complete. In the meantime, while this project is being undertaken, I am proposing a set of Interim Guidelines to guide decision making for open, potable water storage catchment areas. A copy of the Interim Guidelines is attached.

I hope that the Victorian Civil and Administrative Tribunal Act panel will be able to use the interim Guidelines to facilitate decision making on the specific Applications for Review."

"The following Interim Guidelines have been prepared to help planning authorities with their decision making relating to planning permit applications in open, potable water storage catchments until such time as a Code of Practice has been approved by the Minister for Planning and Local Government.

Approval for any planning application shall be conditional on meeting all of the following conditions which may be relevant:

* No more than one permanent dwelling may be established on any lot, unless the density of dwellings will be less than one dwelling per 40ha.

* New dwellings must have a minimum site area of 40 ha, unless it can be demonstrated that no precedent could be established which could contribute to a dwelling density of more than one dwelling to 40 ha in the whole catchment area.

* All dwellings shall be connected to a sewerage system, or a septic tank or some other effluent disposal system accredited by the EPA.

* Effluent disposal systems must be installed at least 300 metres from any water course or water storage, unless approval is granted by both the EPA and relevant water supply authority.

* All effluent disposal systems are to comply with the requirements of the EPA eg. Septic tanks are to comply with the EPA's Code of Practice - Septic Tanks (1996).

* Local laws, or Section 173 Agreements, shall be used to require approval for new septic tanks to be dependent upon the applicant being required to: pay for the cost of an annual inspection of the septic tank, by an appropriately qualified person authorised by the planning authority; manage the septic tank to the satisfaction of the planning authority; and maintain the septic tank in accordance with any specifications arising from the annual inspections.

* Septic tanks will be desludged at least once every three years.

* All streamside reserves areas, and any other area within 30 metres of any water course or water storage, shall be fenced off to prevent soil disturbance and the intrusion of domestic animals and vehicles.

If considered relevant by the planning authority, other matters about which it may be appropriate for conditions to be specified and/or Section 173 agreements to be made may include:

Siting of buildings and works, including setbacks from water courses and water catchments

11. We are of the opinion that the penultimate paragraph of the Minister's letter makes it clear that it was his intention that the interim guidelines be a guide to decision making for proposals within open portable water catchments generally, and not solely the Tarago catchment. The thorough review referred to in the Minister's letter has not at this stage resulted in any new policy framework to replace the interim guidelines. The Tribunal in the Baw Baw cases discussed the effect of the interim guidelines as follows:

It appears to me that the Minister's submission and guidelines in effect acknowledge that the Tarago Catchment is in part an open catchment and therefore it is reasonable to expect that there will be a range of low impact uses within the catchment, and that in relation to dwellings, the density of dwelling should be in the order of 1 dwelling for every 40 hectares. In addition to this when new uses are proposed it is considered that these new guidelines established by the Minister would need to be considered in the broader context of orderly planning within the locality having regard to the zone provisions, and relevant aspects of the Planning Policy Framework. I will deal with each of the remaining applications below.

12. A decision in this application for review has been made extremely difficult because of the primary/secondary lot subdivision provisions of the old format Macedon Ranges Planning Scheme. Our difficulty is that this form of development of rural land would in the normal course be regarded as unacceptable in the absence of such provisions.

13. This approach to the control of rural subdivision, that is the primary/secondary lot approach is apparently more than 20 years old. The theoretical "right" to subdivide apparently bestowed on land by these provisions is described as "unused subdivisional potential". This "right" been carefully preserved in the scheme through time even surviving a review of rural zones in the early 1990s. The general inconsistency of this approach with current thinking is perhaps exemplified by Mr Glossop's discussion of the final report of the advisory panel into the VPP based planning schemes. (The relevant extract from Mr Glossop's submission is attachment 1 to this decision.) On the basis of his analysis of this report Mr Glossop concluded:

Given this, it is my evidence to the Tribunal that the application should be refused because:

* Small lot subdivision in rural areas for purely residential purposes is antithetical to notions of orderly and proper planning.

* Small lot residential subdivisions in rural areas ultimately jeopardise the continued use of the land for rural purposes. Given this, the proposal is contrary to the purpose of the statewide Rural Zone, the State Planning Policy Framework.

* Any use, development or activity that jeopardises the continued use of this land for broad hectare rural purposes will undermine the effective management of the land and would be contrary to principles of proper catchment management.

* If approved, the application would see the establishment of a small settlement, approximately the size of Toolern Vale (in the Shire of Melton). It is my opinion that the subject land is not and in all probability cannot be provided with the range of physical and social infrastructure that a residential community of this size requires.

* There is no strategic basis at either local, regional, or state level for the creation of isolated residential communities in the midst of a rural area.

* Consequently, the proposal appears to be considerably at odds with Ministerial Direction No.6 - Rural Residential Development and Clauses 21 and 22 of the adopted new format planning scheme.

14. We have ultimately come to the conclusion that the provisions of the Planning Scheme merely provide a discretion for the subdivision proposed. While these existing provisions of the planning scheme may have created an expectation in the minds of the affected land owners about their subdivisional rights, they do not imply the presumption that a permit will or should be granted. The discretion which exists as a consequence of these provisions must be exercised having regard to both the performance criteria set out in the scheme itself, and the policy basis which is inherent in the Victorian Planning Provisions. We will now discuss various aspects of the proposal which arise from these considerations and our conclusions in relation to them.

15. The Gisborne-Bacchus Marsh Road is a very scenic road. In particular, from Bullengarook to Bacchus Marsh there are quite dramatic views to both east and west with narrow bands of undulating grazing land on either side of the road falling away steeply into deeply incised wooded creek valleys beyond. It is our observation that there is quite a lot of rural residential development on either side of the road between Mt Bullengarook and Bacchus Marsh. Most of this development is very intrusive into what is a very valuable rural landscape.

16. The house sites for the 9 small lots located to the west of the road have been sited close to the top of the escarpment flowing down to Goodman Creek, and therefore, if the houses are fairly low rise these particular dwellings should not be unreasonably intrusive from the view perspective of a traveller on the road.

17. The remaining 23 small house lots extend in a double row of lots on relatively flat land immediately to the east of the Bacchus Marsh Gisborne Road. These lots will be partially screened by existing roadside vegetation, and Mr Dance proposes to extend and reinforce this landscape screen. It is our view that the traveller on the road will nevertheless be aware of the relatively intense residential development which is proposed as a consequence of this subdivision. The ultimate result will be a very dramatic change to what is currently a rural landscape. It is considered that this would be a very unfortunate change to a rural landscape which has considerable value.

18. Another consequence of the proposed subdivision is that once it is fully developed, there will exist a small township comprising some 32 quite closely settled households. It will be a township without any of the infrastructure one would normally associate with small rural townships, there will be no shop, there will be no hall, there will be no sports ground, and there will be no CFA unit. What is being created is a small community that has none of its own infrastructure, entirely reliant on the infrastructure available at either Gisborne or Bacchus Marsh, both some 15 kilometres distant, and depending on their own private transport to give them access to these facilities. We find it difficult to see how this can be consistent with even the most basic conceptions of orderly planning.

19. There was a considerable volume of evidence in relation to the issues of agricultural production and economics. There were a number of conflicting opinions in relation to how the land might best be subdivided to protect its future use for effective rural purposes. It seems to us that in many respects these are intractable arguments. There are three observations which can be made in particular about this proposal, but which perhaps apply more generally, which explain why the general policy approach is to oppose fragmentation of the type proposed in this case. These factors are:

* The land taken up by the small lots and the associated roads and catchment drains and the like will be taken out of productive rural use by this proposal, never to be returned to such use.

* The lots on the eastern side of the Bacchus Marsh Gisborn Road in particular occupy a significant proportion of what is the better quality land in the context of the existing farm.

* The idea that the sale of the small lots provides capital for investment to enhance the productive capacity of the balance of the land is flawed. There is no real basis for this assumption that capital gained in this way would be used for this purpose or even should be used for that purpose. The land owner might decide to sell all the lots including the primary lot, or the owner might decide that re-investing the profits from the sale of the secondary lots into the balance of the land is not the best use of the capital gained by this method.

20. It is our conclusion in this regard that from the perspective of agricultural production and economics, the effect of the proposed subdivision is that a significant area of the site, which could be productive, will be taken out of rural production.

21. The Country Fire Authority offered no objection to the proposed subdivision. Nevertheless, we have some reservations in relation to the 9 small lots to the west of the Bacchus Marsh Gisborne Road. The house sites on these lots have been located quite close to the east of the escarpment of the Goodman Creek This choice of location is important because houses on these lots will otherwise be a very intrusive element in this dramatic landscape. However, we are concerned that there will be dwellings located on the edge of the steep west and north-west facing slopes, and this is hardly satisfactory from a fire safety perspective.

22. In the Australian context water generally and palatable water more particularly is a very valuable resource. One of planning's most important roles is to protect resources so that they can be most effectively utilised for the benefit of the community at large.

23. The unresolvable debate between Dr O'Connor and Dr Van der Graaff demonstrates how difficult it is to establish with any sort of certainty the likely impact of the future use of this land arising from the proposed subdivision will have on the quality of water in the Merrimu catchment. Dr Van der Graaff submits that the lots are sufficiently large, the soil types sufficiently appropriate, and the lots are sufficiently distant from water courses, for the Tribunal to be satisfied that there is a negligible in the risk of contamination. Moreover, the civil engineers propose a system of catchment drains and ponds to intercept and filter all surface runoff whether or not it is contaminated in some way or other. On the other hand the approach adopted by the Minister's interim policy, is much more conservative, While it accepts that land within open portable water catchments will be used, and have reasonable expectation to be used for purposes consistent with the zone, the policy nevertheless focuses on limiting the extent to which land within such catchments are used for residential purposes.

24. It is our view that having regard to the importance of the resource, the conservative approach of the interim guidelines is the most appropriate approach. It is not really a matter of being sure that in some way the proposed septic tank system is functioning adequately, in a more general sense the subdivision will result in a significant increase in human activity within the catchment area and this must lead to an increase in risk. The proposed increase in activity is not really associated with the continued rural use of the land in accordance with the purposes of the zone and therefore it seems difficult to justify the additional risk involved, however slight it may be. Ms Macindoe in cross-examination made a considerable reference to the "Shire of Gisborne's Non Urban Zones Review Background Report 1994", an incorporated document in the planning scheme. We believe that it is interesting to note that there is an underlying concern about the operation of the primary/secondary lot subdivision system within water catchments albeit that this concern was not reflected in the subsequent planning scheme amendments.

25. It is our conclusion that notwithstanding the thoroughness of the preparation of this proposal for subdivision, we find it very difficult to justify on the basis of the considerations which would normally apply to rural residential subdivision. The only factors in favour of the proposal, are the provisions of Incorporate Document No. 8, and the primary/secondary subdivision provisions of the scheme. On the basis of this conclusion we are concerned that perhaps these provisions are inappropriate, at least in the context of a water catchment.

Extract from the submission of Mr. John Glossop, Town planner.

1.1 Final Report - New Format Planning Schemes (April 1999)

Before embarking upon a detailed assessment of the planning controls and issues that affect the review site, 1 believe that it is important to discuss contemporary approaches to rural land use planning and catchment protection in the State.

The recent planning reform process has offered a unique opportunity to develop a consistent and strategic approach to the management of these two issues. This is in contrast to previous approaches to treatment of these issues, which has in many cases been determined by a political desire to placate certain landowners at the expense of proper planning principles and methodologies.

Debate on these two issues has been spurred on by the preparation and release of the Final Report - New Format Planning Schemes (April 1999) by Planning Panels Victoria.

Section 4 of this report deals exclusively with planning in rural areas, whilst Section 5 explores the issues surrounding catchment management. The report has been prepared by Panel members who have sat on new format planning scheme panels. In this respect the report is unique in that it provides the planning community with a State-wide perspective on the future of rural land use planning and catchment protection policy across the entire State.

The report notes that the most frequently used basis to support the rezoning

of rural land to a residential or residential based zone is that it is "no longer

economically viable to farm" or that the proposed lots sizes no longer

represent an economically viable farming unit (1999: 25).

The report had little time for such contentions, pointing out that:

* Subdivision size will rarely reflect any particular concept of an economically viable farming unit;

* Economic viability is not a matter that a planning scheme can influence;

* Viability should not be used as a justification for either rezoning or subdivision;

* None of the purposes of the Rural Zone refer to viability;

* Viability will always be a product of the size of total land holdings, markets, prices, place to place and person to person; and

* There is no such thing as an economically viable farming unit (1999:2526) (my emphasis).

Agricultural land can still be used productively and can make a contribution to the overall economy of the State, even though returns from it may be supplemented through off-farm income in order to sustain the landowner (1999:26).

The report notes that while the 5PP17 requires councils to consider the loss of high quality agricultural land only, the focus should be shifted towards il productive agricultural land" (1999:26). The report notes that productive agricultural land is not always high quality, but may be close to markets, infrastructure (such as irrigation) or have particular qualities that makes it attractive to a certain class of production.

The greatest threat to agriculture is to take productive land out of production by converting it to residential use (1999:27).

At Section 5, the report deals in detail with the issue of proper catchment management. The report notes that good catchment management practices are especially important in open catchments, where a range of land uses and activities are possible. The report recognises that the protection of open catchments requires decision makers to adopt a consistent approach to the issue over a long period of time. At page 29, the report states that:

No doubt in Sydney there was no one single development or land management practice that led to the contamination of its water. More likely, it was the incremental creep of many minor decisions, omissions and oversights that led to the current problem. It is the cumulative impact Of individually insignificant developments and activities that must always be considered and guarded against. Two key sources of pollution in this respect are septic tanks and farming practices.

In summary the preferred approach of the Planning Panels Victoria to the management of potable water catchments is as follows:

* Include proclaimed water catchments in the Environmental Rural Zone due the Zone's greater control over land use when compared to the Rural Zone (p.48); 1

* In the longer term the Department of Infrastructure should develop a State-wide proclaimed water catchment overlay, that could control land use as well as development (p.50).

* Water authorities should develop a consistent approach to the assessment of certain classes of application (p.50).

* The water industry and other interested stakeholders should investigate the development of a model local law to deal with the management of septic tanks (p.40).

It is my opinion that the issues raised and dealt with by the various new format planning schemes, in combination with the Minister's Interim Guidelines are emblematic of the greater importance being attached to the protection of water resources from inappropriate development. In this climate, both the existing and proposed planning controls of the Macedon Ranges Shire seem anachronistic and unjustifiable.

Given this, it is my evidence to the Tribunal that the application should be refused because:

* Small lot subdivision in rural areas for purely residential purposes is antithetical to notions of orderly and proper planning.

* There is no strategic basis at either local, regional, or state level for the creation of isolated residential communities in the midst of a rural area.

* Consequently, the proposal appears to be considerably at odds with Ministerial Direction No.6 - Rural Residential Development and Clauses 21 and 22 of the adopted new format planning scheme.

Hobbs A v Macedon Ranges SC [2000] VCAT 1119

At a glance

Court

Decision date

Source

Judgment (163 paragraphs)

Hobbs A v Macedon Ranges SC [2000] VCAT 1119 (31 May 2000)

Parties

Legislation Cited (1)