The applicant says Council's approval of the re-subdivision would have occurred knowing the likely intention to use the site for a dwelling. The applicant says the consideration of subdivision of land including re-subdivision would not occur in isolation of what the likely future use of lots would be as it is a relevant matter under the decision guidelines in Clause 65.02. The applicant says it would be naïve of Council to consider that the site was a productive agricultural lot.
I note the Council delegate report on the re-subdivision application took the view that it would not compromise the agricultural use of either lot as the larger lot would remain available for agricultural production and the smaller lot, being the site, would be increased in size improving its potential for agricultural use.
I note that no reference was made to any potential use of the site, at that time, for a dwelling. In my view, despite the existence of the site as a small lot, there was no suggestion it could not be used for some form of agricultural use. It included, at that time, an agricultural building located on the western boundary that allowed the remainder of the land to be available for agricultural use.
Mr Walton says Mr Kenny seeks to remain in the area given his strong family connections and with the existing shed on the site, and that he has and continues to provide services to support agricultural activities in the area.
Mr Walton sought to demonstrate the applicant's assistance and farming services to adjoining farming properties to the east and south through letters of support from adjoining and nearby landholders. Mr Walton submits no concern has been raised about detrimental impacts of the proposal on the ongoing operation of neighbouring farms and says this is reinforced by no objections being received from notification of the permit application.
Council says the combination of the GWZ1 and planning policy relating to the Green Wedge has a clear theme of protection. It says the proposal fails to appropriately respond to or advance policy in relation to the preservation, protection or enhancement of the Green Wedge, and results in a rural residential use which is to be discouraged.
Council says the proposal is for rural residential use with no intention of conducting agricultural production on the site and does not result in land used for agricultural or primary production.[11]
I note the planning scheme recognises the pressures that can occur on the Cardinia Western Port Green Wedge and rural hinterland areas.[12] The 'Cardinia Shire Strategic Framework Plan' under Clause 21.01-5 provides an overview of land in the municipality and identifies locations where specific land use outcomes will be supported and promoted. The site is located within the 'General Agriculture' area and, although situated outside of the recognised Cardinia horticultural area further south, is within an area identified under the 'Land Capability for Agriculture' plan under Clause 21.04-2 - 'Agriculture' as having 'Good Agriculture Significance'.
The applicant says the emphasis of policy in the planning scheme is on productive agricultural land of strategic significance, high quality soils and highly productive agricultural land. The applicant says that under the 'Map 1: Cardinia Green Wedge Precincts' in Clause 22.05 - 'Western Port Green Wedge Policy', the site is in 'Precinct 3 - The Railway Precinct'. This precinct provides a transition between urban townships and Green Wedge land. It is a precinct that is outside of Precinct 1 and the Cardinia Horticultural area, which are recognised for high-quality agricultural land and is what the applicant describes as a more general agricultural area largely used for grazing purposes.
The applicant says land within 2.5 kilometres of the site is predominantly used for grazing purposes and includes two broiler chicken farms and the Pakenham Racecourse.
The applicant says the capacity of the site for a productive agricultural use is limited given its small size and would not be described as productive agricultural land.
The applicant says the proposal is an acceptable outcome because the small size of the site makes it difficult to use for productive agriculture. The applicant says that because the site is a small lot that already exists, its use for rural residential purposes would not lead to further fragmentation or loss of agricultural land in the area or conflict with existing or future large scale farming operations.
The applicant says the proposed dwelling will not be at odds with built form in the area and satisfies the requirements for the use of a dwelling under the provisions of the GWZ1 with regards to siting and access, wastewater management, water, and energy supply.
Council disagrees and says the site is in an area identified as good agricultural significance with good quality soils. It is located on the border with land identified in the planning scheme for horticultural and soil-based food production.
Council concedes that whilst the size of the site reduces its potential for broadacre farming, the site would otherwise remain capable of accommodating smaller-scale or niche agricultural activity more in-line with the intent of the Green Wedge area.
Council says the centralised positioning of the dwelling and its wastewater management system makes it clear that any form of agricultural use of the land will not be possible. This makes the proposal clearly a rural residential use and development which it says is at odds with policy directions of the planning scheme for the Cardinia Western Port Green Wedge.
The applicant referred to other examples of where dwellings on small lots or small lot house excisions elsewhere in the Cardinia Western Port Green Wedge have been approved to demonstrate that the proposal has similar merits for approval. Approvals for similar forms of use and development elsewhere may not be appropriate as a precedent, nor are they necessarily examples of orderly planning outcomes. My focus is on determining this matter based on its own merits and how the proposal responds to the planning scheme and its physical and policy contexts.
I find the GWZ1 and the policy framework, as it relates to both the Green Wedge and agriculture has a recurring theme of protecting and enhancing the values of these areas. Green Wedge areas are highly regarded for agriculture. Agriculture is an as of right use in the GWZ1. The policy identifies the site within a good agricultural significance area, despite not being located within Precinct 1 or an area recognised in the planning scheme for high quality agriculture or horticultural production.
I noticed during my inspection land in the broader area used for dairying purposes and land also ploughed in readiness for some cropping. It is correct to say the area has a farming character with a scattering of dwellings mainly associated with agricultural activity.
I agree with the commentary of Member Gaschk in Muley Investments Pty Ltd v Cardinia SC[2023] VCAT 1268 ('Muley Investments') where he says:
Council's submission highlighted that the review site has an agricultural significance designation as 'good' expressed in clause 21.04. I note this is the second highest rating expressed within the four tier rating shown in the Land Capability for Agriculture map under clause 21.04-2. No contrary agricultural evidence was put to me that established the specific soil and agricultural capacity of the review site did not rate as 'good.'
The applicant sought to rely on the fact the review site is not located in Precinct 1, where high quality agricultural land has been identified. However, I have not been persuaded by this submission. Particularly given the review site is identified in the second highest 'significant agricultural rating' expressed in clause 21.04-2. I take this to support council's view that the review site retains 'good' potential for ongoing agricultural production. In the absence of any contrary and tested evidence I have placed weight on this in my findings.
Policy settings that apply to the GWZ1 clearly dictate that Green Wedge soils, including their importance to ongoing agricultural production as a 'finite resource,' should take primacy in future land use planning within green wedge areas. I agree.
It is also relevant, that any proposed transition of non-agricultural land uses into Green Wedge land around townships, as is proposed here, should be carefully managed to ensure ongoing encroachment of inappropriate uses is avoided and agricultural protection continues in these GWZ1 areas.
I accept Muley Investments deals with a different land use proposal however, the principles remain valid for this case. The site is in a good agricultural significance area, and it is a productive area for agriculture evident from my inspection and is a 'finite resource' within this Green Wedge area.
I also find that policy support for residential use and development of land in the Green Wedge and in these areas of good agricultural significance is either silent or at best, tempered.
The purposes of the GWZ1 do not extend to encouraging the use and development of land for a dwelling, or for rural residential or rural living purposes.
Clause 11.01-1R - 'Green Wedges - Metropolitan Melbourne' seeks to protect the Green Wedges from inappropriate development, which is supported by strategies seeking consolidation of new residential development in existing settlements and where Green Wedge values are protected.
Clause 14.01-1S - 'Agriculture' seeks to avoid the permanent removal of productive agricultural land via changes to land use and has the intent of preventing urban activities within rural areas. This is reinforced by the strategy to consider the compatibility between the proposed use and the existing use of surrounding land. The use of the site for a dwelling within a rural setting with no connection with agricultural production establishes a potential for land use conflict between the dwelling and surrounding agricultural activity. This is also reiterated in policy under Clause 21.04-2 - 'Agriculture' and in Clause 22.05.
Despite the assertions from the applicant that the site is too small for productive agriculture, I consider such arguments to be more related to viability rather than productivity. Viable agricultural production is not the issue. The more relevant issue in this case is whether the site can be used for a productive agricultural purpose. The soils are of reasonable quality and with access to water, they can be used productively for agricultural purposes.
The proposal is not supported by any proposal to conduct agricultural production on the site, or by a land management plan or similar that can demonstrate how the proposal would be consistent with sustainable land management practices. These shortcomings expose the proposal as a non-rural use that fails to support the future directions and preferred land uses identified for areas that fall within Precinct 3 under Clause 22.05.
I also find that despite the assertions that the applicant will assist and support neighbouring agricultural activity, the proposal for a dwelling represents a permanent change in land use. As a result, it risks not only changing the ability of the site to be used for agricultural production, but also, risks conflict with, or reduction of, the capacity for future agricultural activity on adjoining or nearby land. Once the dwelling is constructed its use as such will remain in place for many years and risks producing long term issues on continued agricultural production on surrounding land. A dwelling comes with expectations for amenity protection and in an area where agricultural production is supported under the GWZ1, creates an expectation that is unrealistic to protect given the working nature of agriculture in the area.
I note the proposition for the use of a section 173 Agreement to alert future owners of the presence of farming activities in attempts to dull amenity expectations. However, what real effect they have may be limited.
I also do not consider that the dwelling is needed to allow the applicant to assist the owners of neighbouring properties. My understanding from Mr Walton is that this activity currently occurs with the applicant residing in Nar Nar Goon, which is over 3 kilometres from the site.
I accept that the small lot exists and was originally created over 20 years ago with an expectation that it would eventually be used for some residential purposes. The small lot created under the then planning controls was most likely considered as an acceptable outcome. However, things have changed with both the planning scheme and its aspirations through both the introduction of the GWZ1 and the current policy framework which makes the proposal for residential use in a farming setting, now something that is discouraged.
In my view, the proposal would undermine and erode the agricultural values of the Cardinia Western Port Green Wedge and does not achieve an acceptable outcome for the agricultural area of Nar Nar Goon.
[2]
The site is affected by the Land Subject to Inundation Overlay ('LSIO'). The LSIO generally identifies flood prone land and seeks to ensure that development does not aggravate flood impacts, reduce floodplain health, or be a flood risk to life, health, and safety. A permit requirement is triggered for development under Clause 44.04-2 and requires referral to the relevant floodplain management authority.
The permit application was referred to Melbourne Water as the determining referral authority.[13] Melbourne Water offered no objection to the proposal subject to conditions relating to finished level of the fill pad and finished floor level of the dwelling, permeability of fencing and driveway construction requirements.
The dwelling is proposed to be constructed on a fill pad with a proposed floor level of 18.25 metres Australian Height Datum ('AHD') which will be 600mm above the applicable flood level for the site.
Council did not take issue with the proposal on flooding grounds.
I accept the responses of both Council and Melbourne Water and find flood risk is acceptable.
The applicant says pursuant to Section 115B of the VCAT Act, it seeks an order for Council to reimburse the applicant the application fees being a total of $1,324.50 including:
$934.90 for the application for review; and
$389.60 for the hearing day fee.
Importantly however there are qualifications in the presumption that the Council will reimburse the applicant the whole of any fees paid in the proceeding.
Section 115CA(3) states that the presumption does not apply if the Council satisfies the Tribunal that there was reasonable justification for the Council to fail to grant the permit within the prescribed time. The Tribunal is to have regard to the following three matters:
the nature and complexity of the permit application; and
the conduct of the application in relation to the permit application; and
any other matter beyond the reasonable control of the responsible authority.
Accordingly, I provided an opportunity for submissions in writing to be lodged with the Tribunal concerning the request.[14]
[4]
Council lodged a written submission advising that the permit application was lodged on 3 October 2022 but that a request for further information was not made within the prescribed period until 21 November 2022. Council says that, at the time, it advised the applicant that it had initial concerns regarding the proposed land use and siting.
In response, the applicant sought extensions of time to provide further information on three occasions on 26 December 2022, 24 February 2023, and 3 May 2023, all of which were granted by Council.
Further information was provided on 30 May 2023 however, Council says the applicant did not provide a response to Council's initial concerns.
On 28 June 2023 the permit application was referred to Melbourne Water.
On 27 June 2023, Council progressed the permit application to public notice again reiterating to the applicant that it remained concerned with the proposal.
On 29 June 2023 a meeting between the Council and the applicant was held to discuss the proposal. Council says that at this meeting it understood that the permit application would be amended by the applicant to address concerns.
The Melbourne Water referral response was received by Council on 27 July 2023.
Council advised that no further communication was received, and the review application was lodged on 4 September 2023.
Council says that the proposal for a dwelling in the GWZ1 is not a straightforward type of permit application. It says there were issues around land use conflict that required consideration within the context of a Green Wedge area.
Following the meeting on 29 June 2023, Council, says that in good faith it did not progress the permit application as it was awaiting an amendment to the permit application. A communication from the applicant that never came.
Council accepts that it failed to grant the permit before the application was made before the Tribunal but says it did not do so willingly because it acted in a consultative manner in an attempt to resolve key concerns.
Accordingly, Council says it believes the Tribunal should not make an order for reimbursement of fees.
In response, the applicant lodged a submission saying that Council was not diligent in requesting further information which was not made within the prescribed time.
The applicant disputes the claim by Council that it intended to lodge an amendment to the permit application, saying that at the meeting on 29 June 2023, Council's position was that 'the application would be recommended for refusal in no uncertain terms'. The applicant considered that, based on this response, any amended plans would be futile and would require readvertising given the advertising commenced on 27 June 2023.
In relation to any other matters beyond the reasonable control of Council, the applicant says there are none as acknowledged by Council. Council's claim that the permit application was received and assessed by Council during a period of high demand and significant backlog, is irrelevant as it is Council's responsibility to properly resource its planning functions and manage its planning applications.
The applicant says the review application was lodged on the basis that it was clearly expected that the permit application would be refused with an unknown timeframe and noting that Council did not determine its position on the permit application until 4 December 2023.
[5]
I find that, although Council acknowledges that it failed to determine the permit application within time, it did not set out to do so willingly.
It took a consultative approach expecting an amendment to the permit application and in an effort to resolve the issues it had with the proposal.
In this case, there does not appear to be any clear communication between the parties as to whether the permit application would be amended or otherwise, which in my view has led to the delay in proceeding to determine the permit application.
Accordingly, I find there was reasonable justification for the Council to fail to grant the permit within the prescribed time and, as a consequence, I refuse to make any order as to reimbursement of fees.
[6]
For the reasons given above, the decision of the responsible authority is affirmed. No permit is granted.
[2] The submissions of the parties, any supporting exhibits given at the hearing, and the statements of grounds filed; have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.
[9]
[4] See for example, Knox City Council v Tulcany Pty Ltd[2004] VSC 375 [13] and following the findings of Van Egmond v City of Knox, Bassett & Ors as cited in Tulcany with reference to (1985) 3 PABR 249 [250].
[10]
[7] Mr Walton advised that it was approved around 1995 under the previous Pakenham Planning Scheme and comprised Lot 1 - 10.90 hectares, Lot 2 - 1.477 hectares, Lot 3 - 1 hectare and Lot 4 - 27.25 hectares.
[11]
[9] Refer to Clauses 11.01-1R, 14.01-1R and 22.05-1.
[11] Referenced by Clauses 14.01-1S, 14.01-1R and 21.04-1.
[14]
[13] Melbourne Water are not a party as the applicant accepted their conditions and they did not lodge a statement of grounds or indicate that they wished to attend the hearing.