1

The review site is a vacant land parcel and forms part of a larger 3.04 hectare holding associated with the Tatra Restaurant. A restaurant opened on the land in 1948. Planning permits have issued since 1977 for various proposals including a chapel and bed & breakfast facilities for four visitors within the restaurant building. The subject land fronts The Grove, a cul de sac. It is to the rear of the restaurant complex fronting Mount Dandenong Tourist Road. Surrounding properties are developed for rural living on lots estimated by the Council to vary from 2,000 to 8,000 square metres.

2

On 12 June 2003, Permit YR-2002/683/1 ("the Permit") was issued by the Shire of Yarra Ranges allowing "tourist accommodation" on the land at No. 1395-1397 Mount Dandenong Tourist Road. The permit application was assessed by the Council on the basis of it being defined as "group accommodation" being for 10 units plus a manager's unit. The Permit was subject to conditions including:

•

amending plans being submitted for endorsement prior to the commencement of the development [no plans have been endorsed].

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the facility being "operated in association with the Tatra restaurant".

•

the permitted development commencing within two years of the date of the Permit and being completed within two years of the date of commencement.

3

When the Permit was granted, the subject land was zoned Rural Living with a Significant Landscape Overlay (Schedule 9) and Erosion Management Overlay pursuant to the Yarra Ranges Planning Scheme[1]. The land was affected by specific site provisions at Clause 52.03. Clause 53 operated.

4

The site specific provision appears to derive from a proposal allowed by Amendment L91 to the Lilydale Planning Scheme that was gazetted in October 1998. Clause 52.03 now references a document dated April 2005 that was tendered with my leave subsequent to the Hearing. In May 2004, being outside the urban growth boundary, the land was rezoned Green Wedge A Schedule 1 with the same Overlays applying as well as a Wildfire Management Overlay. Clause 53 remains relevant in addition to Clauses 11, 12, 14, 15, 21, 22.02 (Rural Living Areas), 22.06 (Tourism), 57 and 65. Clause 22.02 is relevant because the provisions of Clause 57.03 state that:

Any reference in this planning scheme to a Rural Living Zone or a schedule to a Rural Living Zone as it applies to land outside an Urban Growth Boundary is deemed to be a reference to a Green Wedge A Zone or a schedule to a Green Wedge A Zone.

5

Both parties addressed the principles set out in Kantor[2]. These are the principles that are usually considered in relation to an application to extend the time for a permit. They are often summarised in the following way:

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Whether there has been a change of planning policy.

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Whether the land owner is seeking to warehouse the permit.

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Any intervening circumstances which bear upon grant or refusal of the extension request.

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The lapse of time between the Permit and the request.

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Whether the time limit imposed was adequate.

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The economic burden imposed on the land owner by the permit.

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The probability of a permit issuing should a fresh application be made.

6

In Kantor, His Honour Ashley J found that a reason or material must be advanced in support of an extension request. Mr Cicero submitted that the Applicant entered into a contract to purchase the land in June 2005 and has commenced the upgrading of the Tatra restaurant at substantial cost. His client's decision to purchase the subject land was influenced by the Permit that would enable those attending the restaurant (which he said has shifted focus to functions) to stay overnight.

7

Mr Cicero submitted that his client had sought to keep the Permit alive, such as by the engagement of consultants and preparation of plans, and his client has no intention of warehousing the permit. Moreover, this is the first request to extend the time of the Permit which is necessary as his client did not have sufficient time to act on the Permit which expired on 12 June 2005 given he only commenced negotiations to purchase the site in 2003. Mr Cicero said that the area of the subject site can be "properly described as an urban environment in a semi-rural context" and, in accordance with the purpose of Clause 57, the group accommodation units would be associated with the existing urban activity on the land, being the restaurant. He submitted that there has been no change in policy, only in relation to zoning, and no material change relating to the land which remains vacant.

8

In response, Ms Wicks focussed on the change in the zoning of the land the results in group accommodation in association with the restaurant now being prohibited. She also submitted that the form of the proposed development is too urban in style and unlikely to be supported on that ground. Ms Wicks submitted that although there has been ample time to activate the permit, the Applicant does not appear to have taken steps to advance works and tasks required prior to construction.

9

I have considered the all written and oral submissions and next I set out the reasons for my decision to allow the Applicant's request to extend the time of Permit YR-2002/83/1. In so doing, I address the principles in Kantor and consider whether it would be in the interests of natural justice to extend the Permit.

Material Change in Planning Policy Relevant to the Proposal

10

It is agreed between the Applicant and Council that:

•

since the Permit was issued the land has been rezoned to Green Wedge A Schedule 1;

•

that the use allowed by the Permit, tourist accommodation, would be defined as "group accommodation".

•

unless the group accommodation is used in conjunction with agriculture, outdoor recreation facility, rural industry or winery, it is prohibited.

11

On these bases, the tourist accommodation allowed by the Permit would now be prohibited because it is defined as group accommodation and is associated with a restaurant.

12

This is a significant factor in considering the Applicant's request. However, it is not where an assessment should stop as the applicable policies and site context are very relevant in this case.

13

The proposal was assessed by Council in 2003 and, based on the officer's report[3], was found to be acceptable in terms of the applicable zone, Overlays and Scheme policies. Based on Clause 53, and despite the change in the land's zoning, the current policies apply as if the land was in a Rural Living Zone, there being no distinction in the rural living local policy between land inside or outside the Urban Growth Boundary. The policy basis at Clause 22.02 identifies different roles served by rural living areas in the Shire including as a buffer between urban areas and rural land.

14

I have reviewed the details of the applicable policies currently found in the Scheme. When compared with the references in officer's report dating from 2003 there are some differences in wording.

15

On my reading the policies as they exist today, the emphasis of Clause 22.02 is on maintaining low density single dwelling development without commercial intrusion in rural living areas.

16

It is policy at Clause 22.02 that (inter alia) visitor accommodation (other than for six people or less) not be established in Rural Living Areas except if it accords with the local planning policy for tourism at Clause 22.06. The 10 units plus manager's residence would be assessed under the following part of the policy at Clause 22.06:

The preferred location for facilities providing overnight accommodation for more than six visitors are sites:

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Within established townships which can provide convenient access to a range of retail, community and other support services.

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Where the facility can be accommodated without causing any adverse effects on the character and amenity of adjoining and nearby areas.

•

That would not contribute to a concentration of similar land use activities that would alter the established character of the surrounding area or detract from its residential amenity.

Visitor accommodation proposals for more than six people may be considered on sites within a Rural Zone, Rural Living Zone or Environmental Rural Zone if the proposal will:

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Be associated with a restaurant, other tourist facility or agricultural activity established on the same land.

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Be located to avoid potential conflict with normal farming operations on adjoining or other nearby properties.

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Be on a site that is connected to reticulated sewerage or is large enough to enable all wastewater to be adequately treated and retained within the boundaries of the lot.

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Be on a site that is at least two hectares or otherwise large enough to provide effective visual screening and buffering of the proposed use from adjoining land and maintain the overall character of the area.

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Not contribute to a concentration of similar land use activities that would alter the established character of the surrounding area or detract from its amenity.

•

Facilities providing overnight accommodation for more than 30 visitors not be established on sites within the Mt Dandenong Main Ridge Area.

17

The Scheme prefers sites that are not in rural living areas but enables consideration to be given to rural living and other locations based on specified criteria. The proposal would meet the specified criteria as it is associated with a restaurant on a land holding of over 3 hectares and provides overnight accommodation for 30 visitors or less. It would not conflict with agricultural operations and servicing requirements can be met.

18

The officer's report from 2003 states that the proposal "does not fall into the character of a preferred tourist development or major tourist development being between 6 and 50 guests and on a site of less than 2ha". Clause 22.06-3 describes major tourist facilities as providing "leisure or recreation facilities which occupy a site of more than 2 hectares or which provide for more than 50 visitors at any one time". As the primary function of the land is as a restaurant, I doubt this policy is directed Tatra, even though the proposed tourist accommodation would be part of the restaurant's operation. If a contrary position is arguable, then the following policy would apply:

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In established townships on sites which can provide convenient access to a full range of retail, community and other support services.

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In rural areas on sites where the proposed facility will be associated with an agricultural activity being carried out on the land.

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On sites where the facility can be accommodated without causing any adverse effect on the character and amenity of adjoining and nearby areas.

•

On sites that are connected to reticulated sewerage or are large enough to enable all wastewater to be adequately treated and retained within the boundaries of the lot.

Major tourist facilities only be established in a Rural Zone, Environmental Rural Zone or Rural Living Zone if the use will:

•

Be located to avoid potential conflict with normal farming operations on adjoining or other nearby properties.

•

Be on a site that is at least two hectares or otherwise large enough to provide effective visual screening and buffering of the proposed use from adjoining land and maintain the overall character of the area.

•

Not contribute to a concentration of similar land use activities that would alter the established character of the surrounding area or detract from its amenity.

•

Have direct access to a sealed road or a formed gravel road which is capable of accommodating anticipated traffic levels without causing any adverse effect on local residential amenity.

19

On either assessment, that is as visitor accommodation or under the banner of a major tourist facility, although the review site would not enjoy "automatic" support, the following particular circumstances and factors would lend support to the proposal - the long-standing presence of the restaurant, the size of the land, the main and sealed road frontages and the direct link between the proposed accommodation units and the restaurant.

20

It is important to consider the physical context of the site. The land is not in an agricultural setting. It is surrounded by rural living properties and there is no potential for detrimental impacts on agricultural operations. The proposal would complement the activity on the subject land in a manner that is contemplated by local policy. Having said that, the proposal would add to the urbanisation of the site and arguably be of a scale, in terms of the intensity of the development, that might be said to be incompatible with a non-urban or low density residential character.

21

In conclusion, this case faces the unusual situation that, despite the approved use being prohibited under the Green Wedge Zone, when tested against the local policies that apply there is a degree of policy support in its favour. That is, the proposal does not produce a contrary outcome when applying these tests when mindful of the site's physical context.

I take the term warehousing to apply to a situation where someone obtains a planning permit, or perhaps a number of planning permits, but without intending to act on them, or at least with no intention of acting on them in the foreseeable future. The existence of a planning permit for a particular development can enhance the value of land. [4]...

I think it is clear that warehousing is not demonstrated by a mere passage of time, or the passage of a considerable amount of time from the granting of a permit, without the commencement of development. The passage of a lot of time, without anything happening on site, is consistent with warehousing, and may be indicative of it, but the mere passage of time is not sufficient itself. [5]

23

While the previous owner of the site may have sought to warehouse the approval it appears that the Applicant has an interest in acting on the Permit. Having said that, I accept to an extent the Council's submission that there is no compelling evidence that the Applicant will act on the Permit and does not seem to have advanced some aspects of the Permit that could be pursued. Instead the focus appears to have been on renovations to upgrade the restaurant but that may not be unreasonable when there was no guarantee that of an extension of time for the commencement of the Permit.

Intervening Circumstances Bearing on the Grant of Refusal of the Extension

24

There main intervening circumstance, aside from a change in the zoning, is the sale of the land to the Applicant.

25

As I have said, there may have previously been said to be a warehousing of the approval whereas I was told that the current owner intends to proceed with the Permit. Plans were submitted to the Council. The current owner has commenced works to upgrade the restaurant and this was said by Mr Cicero to be indicative of a commitment to proceed with the project.

26

Reference was also made by the parties to verbal advice given to the Applicant by Council officers that the extension of time would be granted. Related to this is that the officer's report on the request was dated 10 August 2005 but a refusal was only issued on 23 March 2006. I record that Ms Wicks stated that any advice was given in absence of a full assessment of the request but the intervening time between the report and a decision being notified to the Applicant is unexplained.

27

The Permit should not be extended on a continuing basis when the applicable Scheme provisions have changed substantially so as to affect the prospect grant of the permit if an application was made today. It is some eight years since the proposal was first advanced via Amendment L91 but a Permit only issued in 2003. The Applicant has only quite recently become involved.

28

The time limit included on the Permit was reasonable for the preparation of plans and then construction. The time has become inadequate because the previous owner did not act upon the Permit and the Applicant became involved close to the expiry date for the Permit.

Economic Burden imposed on the Land Owner by the Permit

29

Mr Cicero emphasised that there would be a considerable loss to the Applicant and that a significant financial commitment and investment has been made in relation to Tatra. While that may be the case, this is not a situation where a development is part complete or has commenced.

Probability of a Permit Issuing should a Fresh Application be made

30

It is common ground between the parties that there would be no discretion available to enable a permit to issue should a fresh application be made for the same tourist accommodation development. Group accommodation associated with a restaurant is prohibited under the current Zone provisions. Thus there is no prospect of a permit issuing.

31

It follows from the above findings that the request to extend the time of the Permit satisfies several of the Kantor tests and these are factors lending weight to the request. However, there are also a number of matters which do not give the request support.

32

In favour, in part, are that this is the first request to extent the time of the 2003 Permit and the land is under new ownership. My reservations are twofold. First, is that the change in the zoning control affecting the land that is a very significant matter. Despite that rezoning, I am faced with the unusual situation that the proposal receives some support when tested against the applicable policy framework set out in the Scheme. Thus, it cannot be said that the outcome if the Permit was acted upon would be poor in planning terms. Second is that I have some doubt about the intent of the Applicant to act on the Permit rather than to just keep the Permit alive.

33

On balance I have decided that it would be fair to grant the extension requested and extend the Permit for a limited period. This is for a 12 month period. The onus is on the Applicant to act on the Permit.

For the above reasons, I will set aside the decision made by the Responsible Authority and grant an extension of time for Permit YR-2002/683/1.

[1] Amendment L91 was gazetted on 8 October 1998.

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

[3] Application Assessment and Delegate Report dated 12 June 2003.

[4] Genser v Yarra City Council [2004] VCAT 2640.

[5] Genser v Yarra City Council [2004] VCAT 2640.