Ms Nicole K Reynolds, town planning consultant, Crowther and Sadler Pty Ltd.

Mr Bill Williams, statutory planning officer, East Gippsland Shire Council.

1. Roger Jacques seeks a review of East Gippsland Shire Council's decision to refuse planning permit no. 123/2006/P for a two lot subdivision of land at 200 Bengworden Road in Bairnsdale.
2. The Council refused the application on the following grounds:
   • The proposal is contrary to both the planning scheme policies and the purposes of the Rural Zone;
   • The proposed subdivision will in the long term be detrimental to the agricultural productivity of the prevailing productive Rural land use;
   • The subdivision will increase the residential presence in the area creating an expectation of a level of amenity beyond that able to be provided;
   • Approval for this proposal would create a precedent for future subdivision and development in rural areas which would lead to the loss of productive agricultural land; and
   • Other land is zoned and available for the purpose of providing rural living opportunities throughout the Shire.
3. Roger Jacques' grounds for opposing the Council's decision are, in summary:
   • The planning scheme allows applications for smaller lots.
   • The state and local planning policies do not prohibit the subdivision of rural land.
   • Other small lots have been allowed within our immediate vicinity.
   • Rural zoning presents real hindrances and obstacles to progress.
   • The rural zoning should be changed to allow more small lot 'rural lifestyle' (rural residential subdivision).
   • There is not an economic irrigation water supply for diverse small area intense agriculture.
   • All infrastructure is immediately available on the Bengworden Road frontage.
   • Other developing rural residential subdivisions do not contain all the basic amenities available in this vicinity.
   • Percolation tests are very satisfactory
   • Due to our age the current lot size is too hard to maintain and to manage.

1. It is proposed to subdivide an existing 12.6 hectare lot into two lots comprising 3.9 hectares. Lot 1 will have a frontage of 168 metres to Bengworden Road and the balance of the land will be created to form lot 2. That lot will be an inverse 'L' shape area of about 8.7 hectares with a frontage of 134 metres to Bengworden Road.

1. The subject site is located about two kilometres south of the Princes Highway about 8 kilometres south-west of Bairnsdale. The lot forms part of a rural living enclave which has established over time with about twenty lots ranging in size from 2.2 hectares to about 18 hectares, most of which contain separate dwellings. Bengworden Road is a main road travelling south from Princes Highway to the township of Bengworden. This section of road also serves as an alternative access to Paynesville and provides access to the Bairnsdale aerodrome.
2. The land in the locality is generally flat to slightly undulating. It comprises large and small rural land holdings including rural/rural residential lifestyle lots. The area is substantially cleared of native vegetation. This clearance occurred in the early part of the twentieth century and is characterised as a substantially modified rural landscape.

1. At the time the responsible authority considered the application and at the time of the review hearing, the subject site was zoned Rural under the East Gippsland Planning Scheme.
2. On 2 August 2007 the East Gippsland Planning Scheme was amended[1] and rezoned all land zoned "Rural" in the municipality to a "Farming Zone" and all land zoned "Environmental Rural" to a "Rural Conservation Zone". The relevant provisions are now found at Clause 35.07 of the Planning Scheme. Whilst subdivision is still discretionary, there are different zone purposes, provisions and decision guidelines which must be considered at the time the Tribunal makes its decision. This principle is articulated in Ungar v City of Malvern[2].
3. The purpose of the Farming Zone is:

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

To encourage the retention of productive agricultural land.

To ensure that non-agricultural uses, particularly dwellings, do not adversely affect the use of land for agriculture.

To encourage use and development of land based on comprehensive and sustainable land management practices and infrastructure provision.

To protect and enhance natural resources and the biodiversity of the area.

1. A permit is required for the subdivision of land in the zone. Although the minimum lot size in the zone is 40 hectares, under the provision of Clause 35.07-3, a permit can be granted to create smaller lots if:
   • The subdivision is to create a lot for an existing dwelling. The subdivision must be a two lot subdivision. An agreement under Section 173 of the Act must be entered into with the owner of each lot created which ensures that the land may not be further subdivided so as to create a smaller lot for an existing dwelling. The agreement must be registered on title.
2. Relevant decision guidelines are at Clause 35.07-6. These require consideration of a range of general, agricultural, dwelling, environment and design and siting issues.
3. Other decision guidelines are at Clause 65. These require consideration to be given to a range of matters including planning policy, the purpose of the zone and orderly planning. The guidelines at Clause 65.02 are specific to subdivision and require consideration to be give to matters such as the suitability of the land for subdivision, existing and future development of the site and nearby land; the effect of the subdivision on other land and the need for further lots; the subdivision pattern as well as the area and dimensions of each lot.
4. In addition to Clause 65 there are various State and Local Planning Policies of relevance:
   • Clause 17.05 Agriculture;
   • Clause 21.05-4 Rural land use;
   • Clause 22.08 Small lot subdivisions in rural zones;
   • Clause 22.07 Dwellings in rural areas.

1. At the review hearing both Mr Williams and Ms Reynolds tabled and read from detailed written submissions. I was provided with photos of the subject site and locality, a map showing recent subdivision along Bengworden Road, particularly between Princes Highway and Humphreys Road, and other Tribunal decisions. I advised the parties I had viewed the subject site prior to the review hearing.
2. During the hearing the parties discussed the impending introduction of the Farm Zone, although the actual date of its introduction was unknown.

Balancing benefits and disadvantages of the subdivision

1. Clause 11 of the planning scheme calls on responsible authorities and therefore the Tribunal to endeavour to integrate the range of policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit and sustainable development.
2. There are some matters pertaining to this application that favour subdivision. It is possible to consider the subdivision because it meets specific criteria in Clause 35.07, including the fact that the land is serviced and has access to a sealed road. Probably the strongest factor in its favour is the presence of other small 'lifestyle' type rural living allotments, often with dwellings on them or vacant land in anticipation of future dwelling accommodation. It is acknowledged that this subdivision does not result in the loss of existing farmland rather it will produce a further 'lifestyle" dwelling lot in a rural area.
3. Ms Reynolds tabled a subdivision plan showing various lots and houses south of the Princes Highway that have been created in the past twenty years to demonstrate that the proposed subdivision for a further dwelling lot would not be out of character with this area.
4. The plan tabled by Ms Reynolds shows that in a two kilometre stretch of Bengworden Road in the midst of a rural area 23 lots, all under 20 hectares in area, have been excised off larger rural holdings. The net result is that in excess of some 140 hectares of land has effectively been removed from farm production of one kind or another and in its place rural living or lifestyle housing lots, which seem to have little relationship to farm production.
5. The allotments and related dwellings are quite attractive and most appear to be well maintained and generally complementary in appearance to the larger rural land holdings abutting them. However there has been no strategic planning for this outcome, rather it has occurred in an ad hoc manner at the expense of the rural land resource.
6. The ad-hoc approach to subdivision and rural housing excision in this area is a clear example where previous planning controls, allowing subdivision for lifestyle lots, have been administered to create a de facto rural living enclave some eight kilometres west of Bairnsdale. This enclave has no direct access to any town infrastructure including shops, banks, medical or community services, the housing lots make no contribution to town infrastructure, and residents must rely solely on motor vehicle transport for access to any town services. Individually a decision to excise a house lot may have seemed sound at the time but the collective result is the loss of rural land and ultimately it presents as a poor planning outcome. This is not to suggest that any one individual person or authority has deliberately undermined the rural land resource but it is clearly an example of ad-hoc and inappropriate subdivision.
7. Whilst I acknowledge that one further dwelling lot is a relatively minor increment to that which has occurred in recent times along Bengworden Road, the plan of the subdivisions tabled best illustrates the impact of unplanned subdivision. It also seems a good illustration of why the State Government has introduced greater planning controls, through such measures as the Farming Zone, to curtail unplanned "lifestyle" subdivision in rural areas which lead to an undermining of the purposes of the Farming Zone.

1. State Planning Policy provides support for the protection of productive agricultural land. In this regard, the objective at Clause 17.05-1 of the scheme is:

To ensure that the State's agricultural base is protected from the unplanned loss of productive agricultural land due to permanent changes of land use and to enable protection of productive farmland which is of strategic significance in the local or regional context.

1. To achieve this objective, Clause 17.05-2 goes on to say:

Subdivision of productive agricultural land should not detract from the long-term productive capacity of the land.

In considering a proposal to subdivide or develop agricultural land, the following factors must be considered:

• The desirability and impacts of removing the land from primary production, given its agricultural productivity.
• The impacts of the proposed subdivision or development on the continuation of primary production on adjacent land, with particular regard to land values and to the viability of infrastructure for such production.
• The compatibility between the proposed or likely development and the existing uses of the surrounding land.
• Assessment of the land capability.

1. Whilst it is acknowledged that the site itself provides some visual compatibility with the nearby farming land, the proposed subdivision provides the opportunity to remove land that could be used for agricultural production if combined with an adjoining farm holding or used in association with another farm holding. It will provide the opportunity for a further rural residential landholding, raising expectations of any future land purchaser of a "right" to build a dwelling in the midst of this rural area contrary to the purpose of the Farm Zone. In reality it will artificially inflate the value of the faming land so that its prime value is that of a dwelling rather than a farm holding.

1. Clause 22.07 - Dwellings in Rural Areas Policy, states that:
   • Rural production is the basis of the economy of much of the East Gippsland Shire and farming land is a finite resource. It should be protected and preserved for rural production and generally not developed or subdivided for housing for persons not engaged in the rural or other productive use of the land.
2. I acknowledge that this land is not in rural production now but, if anything, the proposal further alienates the possibility of the remaining 8.7 hectares of land being used for a legitimate farming purpose. I acknowledge that there may not be water rights available to sustain a viable agricultural entity on a parcel of 8.7 hectares, but that is not the issue in this matter. Rather it is the introduction of a use that is expressly discouraged and that makes no contribution to the Farming Zone, other than to artificially inflate the value of the land and make its availability for farm purposes virtually untenable.
3. Furthermore, whilst current landowners, people who are ex-farmers, have been able to maintain the land, part of their own argument for this application is that it is becoming too large for them to actively maintain. The difficulty I have with this argument is that this approach seems to rely on an expectation that if a landowner claims the land is unmanageable it should be allowed to subdivide the land for further "lifestyle" lots, irrespective of the long-term outcome. This expectation is not consistent with the purposes, decision guidelines or planning policies in the East Gippsland Planning Scheme.

1. I note in the Grounds of Review lodged by Mr Jacques there were various statements to support the subdivision including:
   • The State and Local Planning Policies do not prohibit the subdivision of rural land.

• Rural zoning presents real hindrances and obstacles to progress.

• The rural zoning should be changed to allow more small lots "rural lifestyle" (rural residential) subdivision.

• Due to our age the current lot size is too hard to maintain and manage.

1. I acknowledge Ms Reynolds did not refer to some of the grounds rather she addressed legitimate planning issues. However I consider it is necessary to comment on, and in some way dispel, unrealistic expectations nominated in the grounds of review and to explain why they are not commensurate with the intent and purposes of the State and Local Planning Policy Framework or the provisions of the Planning Scheme.

1. Town planning is concerned with the use of land and not with the identity of the particular person. Similarly there is no specific provision in the East Gippsland Planning scheme to consider the personal circumstances of an applicant. Only on rare occasions are permits personal, for example brothels[3].

1. The introductory sentence in Clause 65-Decision Guidelines states:

Because a permit can be granted it does not imply that a permit should or will be granted.

1. The responsible authority must decide whether the proposal will produce acceptable outcomes in terms of the decision guidelines in this clause. Referring to Clause 65.02, matters which need to be examined include:
   • The suitability of the land for subdivision.
   • The availability of subdivided land in the locality, and the need for creation of further lots.
   • The existing use and possible future development of the land and nearby land.
2. Having regard to these matters and in particular the purposes of the Farm Zone and local planning policy, there seems to be no positive aspect of this subdivision which would advance the purposes of the Farm Zone, nor could it be supported by the local planning policies such as Clause 22.07.

To ensure that non-agricultural uses, particularly dwellings, do not adversely affect the use of land for agriculture.

1. This subdivision is to create another lifestyle lot in an area not intended for primarily rural living purposes. It will have no relationship with the rural activities conducted on adjoining and nearby farmland. There has been no demonstrated planning benefit in favour of the purposes of the Farming Zone, and if anything, the only argument is that the zoning is incorrect.

1. The Tribunal's role is to determine whether the responsible authority's decision was correct having regard to matters contained in Section 60 of the Planning and Environment Act, Clause 65.02 and the purposes and provisions of the zone. It is not the Tribunals role to assess the merits or otherwise of the zoning of the land. If the applicant wishes to seek a rezoning of the land and vary the council's policies then he should make an application to the planning authority, with appropriate strategic planning justification for it. However, a contention of inappropriate zoning is not justification for an ad hoc planning decision that contributes to the undermining of the purposes of the Farm Zone and Council policies.

1. There is no evidence that the refusal of this subdivision hinders progress. I acknowledge that it may hinder the individual expectations of the applicant, but that is not a reason to allow this application.

1. The responsible authority's decision was sound when it refused the application under the rural zoning provisions. The change to the Farming Zone serves to reinforce the responsible authority's decision as being correct. Accordingly the decision is affirmed and it is directed that no permit issue for subdivision.

[1] Amendment C57 to the East Gippsland Planning Scheme

[2] Unger v City of Malvern [1979] VicRp 25; (1979) VR 259

[3] See Lintan Bistro v City of South Melbourne (1985) 18 APA 212