1. Subdivision was still not commenced because of the current drought causing a shortage of irrigation water supply for allocation throughout the Mildura district. The most severe restrictions commenced in the financial year 1 July 2007 to 30 June 2008. The percentage of water allocations has been as follows:

1. The consequence was that farmers had to purchase water allocations, which places an economic constraint on them. For example, if the farmer is allocated 43%, he has to purchase 57% of his requirement at a cost of $550.00 per megalitre. Based on the current allocation of 35%, the farmers will need to purchase 74.75 megalitres to produce a crop from the subject land, at a cost of $41,112.50. Their priorities have been to buy water rather than engage land surveyors and pay the cost of subdivision including service authorities' fees.

1. The land is zoned Farming. Clause 35.07-3 desires each lot to be at least ten hectares pursuant to the schedule to the Farming zone (as it is within a gazetted irrigation district). Similar to Primarano, subdivision into lots of less than 10 ha is prohibited but differing from Primarano, the exception is not the excision of an existing dwelling but where the subdivision is the re-subdivision of existing lots and the number of lots is not increased.
2. The zone mandates a section 173 agreement on each lot created, ensuring each lot may not be further subdivided so as to create a smaller lot for an existing dwelling.
3. When this subdivision permit was originally granted in 2004 under the then Rural zone, it was not mandatory to impose such a section 173 agreement on the permit. But condition 2 of the subject permit requires a section 173 agreement in any event. Its wording is different to clause 35.07-3 in that it prohibits further subdivision so as to increase the number of lots, but is silent as to the presence of an existing dwelling on either of the lots.
4. Pursuant to section 2 of clause 35.07-1 (table of uses) a dwelling on a lot less than ten hectares in size (which is the case here) is discretionary and should meet the decision guidelines for dwellings under clause 35.07-6.
5. No overlays apply to the land.

1. Clause 22.06 applies to all land within the Farming Zone (FZ) and is the current agricultural land policy even though replacement Am C30 is awaiting consideration by the Minister for Planning.
2. This policy recognises that:
   1. Mildura Rural City is nationally and internationally significant in terms of its horticultural output; and
   2. Important in this regard is the protection of agricultural land from urban encroachment including the small lot subdivision of horticultural properties.
3. It is policy that dwellings not directly associated with the use of the land for agriculture or horticulture are strongly discouraged.
4. It is interesting that an exception seems to be made in the case of subdivision to create a lot for an existing dwelling where, inter alia, the following principles should be applied:
   1. the minimum size of the lot prior to subdivision should be at least 10 ha;
   2. no further subdivision should be allowed from the parent lot.
5. However, the dwelling existing on the proposed 0.4 ha lot was demolished a while ago and this exception no longer benefits the permit holder.

1. A replacement policy mooted for clause 22.06 appears more stringent, requiring its association for the improvement of agricultural production but still excepting excisions of an existing dwelling if the remnant agglomeration of land enhances agricultural production.
2. Boundary realignments including multiple lot realignments will generally be discouraged unless they involve adjustments to boundaries that enhance agricultural production.
3. The parties and the witnesses in the appeal made both written and verbal submissions, a number of plans, photographs and other documents were tendered to me and remain on the Tribunal's file.

1. Ashley, J in Kantor summarises principles to be applied in cases dealing with extending planning permits. I will deal with them individually or together:
   1. Whether there has been a change of planning policy.
   2. Whether the landowner is seeking to warehouse the permit.
   3. Any intervening circumstances which bear upon grant or refusal of the extension request.
   4. The lapse of time between the Permit and the request.
   5. Whether the time limit imposed was adequate.
   6. The economic burden imposed on the landowner by the permit.
   7. The probability of a permit issuing should a fresh application be made.

1. Assessment under the following headings would cover the relevant matters in this case.

1. In Mapkams[3] Senior Member Horsfall accepted that the unforeseen circumstances of unprecedented water shortages for irrigation allocation and the need to purchase water allocations were an intervening circumstance justifying the extension of a subdivision permit.
2. Senior Member Horsfall considered that the depletion of the permit holder's resources in order to buy a water allocation was a reasonable explanation for the economic constraint of paying for surveying fees, council certification and Titles Office fees and referral authorities' fees.
3. I make no further comment on this factor, as my decision turns on other reasons.

1. Had the first extension been for two years (the original commencement limit) rather than twelve months, this would only be the applicants' second extension request rather than their third. In Mapkams, Senior Member Horsfall considered that council should not be unduly strict in considering first requests for extensions of time:

Many things can occur between the grant of a permit and commencement of work, and many difficulties can arise, such as delays in preparing the working drawings and endorsed plans, financing difficulties, sales of a property with the permit, difficulties in finding consultants, builders and tradesmen to commence work and so on. The Tribunal must have regard to the practical realities of life and take a reasonably balanced view of the circumstances.

1. I make no further comment on this factor, as my decision turns on other reasons.

Would a fresh permit be issued under the present planning controls?

1. This is the key consideration in this case.
2. On my reading of the current very strongly worded zone and cl. 22.06 provisions, I see only clear discouragement for creation of a vacant lot on which no agricultural activity can be sustained. I do not foresee a fresh permit clearly eventuating.
3. Mr Costa explained that under clause 35.07-1, if this subdivision proceeds, a dwelling is an an-of right use on the remnant agricultural lot of 14.158 ha as planning permission is not required because the land size is greater than 10ha.
4. I was told that the policy of the councillors is to permit a dwelling on a separate lot, so a second dwelling permit would be obtained for the small 0.4 ha lot, resulting in two dwellings.
5. Mr Costa therefore submits that if I disallow the permit extension, and the councillors' policy is to permit a dwelling on each of the two existing lots comprising 6.255 ha and 7.016 ha, two new dwellings will be generated anyway, making no difference in fact.
6. That will be a matter for council's planning officers and then council when the two fresh planning applications are made to Mildura RCC. It is not a matter upon which I can speculate and is not a Kantor extension principle. Nor does planning policy support it without more.

1. I distinguish Primarano[4] because current planning controls make an exception for excision of a lot on which a dwelling exists, when agglomeration of the remnant land will enhance agricultural production.
2. I also distinguish Primarano in which planning officers said a fresh permit would be granted whereas in this case they only said it may[5] be granted, and at the hearing said it would not be granted. Of course, one may always keep applying for planning permission.
3. I acknowledge that the 14 ha lot will be good to farm, but that is already the case with the four lots, which are planted in combination.
4. I follow Mapkams where despite intervening economic constraints justifying an extension, Senior Member Horsfall refused it because of a change in planning policy; saying a permit should not be granted if a fresh permit application was to be made[6].
5. I distinguish Waddleton[7] where the only result of the subdivision was to include a driveway presently on lot 2 onto lot 1 for access; the subdivision not resulting in any of the results discouraged by the Farming Zone. There was no increase in the potential for an additional dwelling to be located on a new small vacant allotment and no land was removed from agricultural production.

1. Warehousing permits is not the ideal, as explained in 12 Fitzroy Street St Kilda Pty Ltd[8].

The purpose of limiting the life of permits is so that they will not survive unacted upon until they are revived after they have become inappropriate due to changes in circumstances. Such changes might be changes in the nature of the land and locality so that the proposal is no longer appropriate. The other sorts of changes referred to in the authorities is where planning policies have changed or planning scheme provisions have changed so that the proposal has become undesirable or contrary to current policies or, indeed, prohibited.

1. I acknowledge that condition 2 of the permit already imposes a s.173 Agreement sought by the current Farming Zone and I accept there are sufficient economic reasons for making this extension application.
2. But, applying the principles of Kantor, given:
   1. the strong lack of encouragement in the decision guidelines for the creation of lots for dwellings not associated with agricultural production under clause 35.07-6 of the new Farming Zone;
   2. the strong lack of encouragement under clause 22.06's agricultural land policy; and
   3. lack of encouragement by planning officers;

I am unable to justify an extension of permit although it would only be for the second extension if two years had been granted each time instead of twelve months.

[1] Primarano v Mildura Rural City Council P2896/2008

[2] Kantor v Murrindindi Shire Council (1997) 18 AATR 285.

[3] Mapkams Pty Ltd v Mildura Rural City Council [2008] VCAT 2609

[4] Primarano v Mildura Rural City Council P2896/2008

[5] In the Planning and Environment List Practice Note No. 2 material

[6] Mapkams PL v Mildura Rural City Council [2008] VCAT 2609 at para 50.

[7] Waddleton v Mildura Rural City Council [2008] VCAT 2624

[8] 12 Fitzroy Street St Kilda Pty Ltd v Port Phillip City Council 3 VPR 103 at paragraph 22.