respondent. The responsible authority's decision is affirmed. No permit shall issue for use and development of a dwelling in Permit Application No. PP08/4185.
Key principles
A planning permit for a dwelling on land in the Farming Zone must be refused where the applicant fails to demonstrate that the dwelling is reasonably required for, or genuinely...
Personal circumstances, historical existence of a dwelling on the site many years earlier, or administrative matters such as council valuation do not by themselves outweigh the...
Interim planning instruments or exhibited amendments (Amendment C24) that have not reached a seriously entertained planning proposal stage attract no weight in determining a...
Issues before the court
Whether a planning permit should be granted for the use and development of a dwelling on a 21.6 hectare property within the Farming Zone.
Whether the prior existence of a house on the property or administrative issues (council valuation, delay) justify granting a permit despite policy...
What weight to give to Amendment C24 (exhibited interim policy) and other planning documents.
Plain English Summary
Lehmann sought permission to build a house on a 21.6 hectare farming property. Indigo Shire Council refused because the applicants did not show the house was needed for agricultural activity and the proposal was inconsistent with Farming Zone purposes and local policy. VCAT inspected the site and found the applicants had not overcome the central policy objection that dwellings should not be established on farming land unless genuinely connected to farming. The Tribunal affirmed the refusal; administrative difficulties and the fact a house had stood decades earlier did not justify granting the permit.
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Deep Dive
1,713 words · generated 04/07/2026
What happened
Victor and Phyllis Lehmann applied for a planning permit (PP08-4185) to use and develop a dwelling on a 21.6 hectare farming property at 1948 Beechworth Road, Chiltern, located in the Indigo Shire. The Indigo Shire Council refused the permit on multiple grounds: the proposal was inconsistent with State and Local planning policy; it did not satisfy the purposes of the Farming Zone (notably that the dwelling be tied to genuine agricultural activity and not contribute to a proliferation of dwellings); it risked setting an undesirable precedent and would undermine orderly planning (Reasons [1]). The applicants sought review in the Victorian Civil and Administrative Tribunal (VCAT). Member Peter O'Leary inspected the site, heard submissions on 10 March 2009 and issued reasons on 24 March 2009 affirming the Council's refusal and directing that no permit issue.
Cited legislation
No linked legislation citations have been extracted yet.
Key factual features:
Land area: approximately 21.6 hectares, Farming Zone (less than 40 ha in area) (Purpose Sought).
The property formerly contained a farmhouse which burned down in the late 1970s; there are remnant sheds and farm infrastructure on site (Locality [2]).
Applicants provided only rudimentary plans: a proposed building envelope and relationship with farm buildings, but no detailed justification that the dwelling was required for agricultural activity (Purpose Sought; Basis for Decision [2]-[3]).
The surrounding area is conventional farmland, with holdings ranging from 25 ha to 191 ha and dwellings generally associated with agricultural activity (Locality [3]; Purpose of the Farming Zone [4]).
VCAT's outcome: the Tribunal concluded that the applicants failed to demonstrate the dwelling was necessary or genuinely associated with agricultural use, that granting a permit would conflict with the Farming Zone purposes and relevant policies, and that the applicants' personal circumstances and administrative concerns did not justify departing from policy. The Council's decision was affirmed and no permit was issued.
Why the court decided this way
The Tribunal's reasoning turns on statutory purpose and policy consistency.
Primary legal rule applied
The Farming Zone's purposes include providing for use of land for agriculture and ensuring that non-agricultural uses, particularly dwellings, do not adversely affect agricultural use (see Purpose of the Farming Zone [1]). Clause 35.07-5 specifically requires assessment of whether a dwelling is reasonably required for the operation of agricultural activity and whether the dwelling will adversely affect nearby agricultural uses (Planning Controls and Policies [6]).
Application of that rule to facts
The applicants offered no evidence that the proposed dwelling would be associated with genuine intensive agriculture or that it was reasonably required for farm operations on the land or in the locality (Purpose of the Farming Zone [1]; Basis for Decision [1]-[4]).
The site’s historic dwelling had been destroyed some 30 years earlier; there was no evidence of an existing use right. The Tribunal treated the historical existence of a house as insufficient to establish a present entitlement or agricultural necessity (Two wrongs don't make a right [1]).
The Tribunal observed general policy reasons for protecting agricultural land from opportunistic dwellings: conflict between household and farm uses (pets, machinery noise, spray or dust), artificial inflation of rural land values that impedes farm consolidation, and the need for consistent policy application to achieve net community benefit (Purpose of the Farming Zone [2]-[4]; Two wrongs don't make a right).
Weight of other material
An exhibited amendment (Amendment C24) was referred to by the Council as an interim protective measure, but the Tribunal gave it no weight because it had not progressed to a seriously entertained planning proposal stage (Amendment C24 discussion).
Administrative matters raised by the applicants (valuation discrepancies, delays, fee payment) were treated as separate administrative issues; the Tribunal explicitly held they did not justify the grant of a planning permit (Two wrongs don't make a right [1]; A refund).
Conclusion
The lack of evidence that the dwelling would be required for agricultural purposes, combined with the clear statutory and policy direction to discourage dwellings that are unrelated to farming in the Farming Zone, led the Tribunal to affirm the Council’s refusal.
Before and after state of the law
Before (context)
The statutory and policy framework in Victoria, at the time of this decision, had moved towards a clear emphasis on protecting agricultural land from non-agricultural encroachment and conflicts. The Farming Zone was being used across Victoria to implement that policy aim (Purpose of the Farming Zone [2]).
This case's contribution
Lehmann v Indigo SC is a straightforward application of those policy principles: it reinforces that approval of dwellings in Farming Zones requires demonstrable agricultural necessity or a genuine connection to rural production. The Tribunal applied established VCAT reasoning on the limited weight to be given to personal circumstances and historical expectations (citing Gippsland Coastal Board and Spedding) and reiterated that permitting opportunistic dwellings risks inflating land values and undermining the agricultural resource base (Two wrongs don't make a right).
After (practical effect)
Practitioners should read Lehmann as confirmation that:
Mere historic existence of a house on a site, particularly when the house was destroyed decades ago, will not alone justify a permit.
Council valuations or administrative error do not found a planning entitlement.
Where exhibited amendments have not reached a mature stage, they carry no weight.
Lehmann does not alter statutory law; it is an application of policy which strengthens the evidentiary expectations on applicants seeking dwellings in Farming Zones.
Key passages with plain-English translation
"One of the purposes of the Farming Zone is to ensure that non-agricultural uses, particularly dwellings, do not adversely affect the use of land for agriculture." (Purpose of the Farming Zone [1])
Plain English: The zone exists primarily to protect farming. Houses that are not needed for farming should not be allowed if they harm farming activities.
"Whether the dwelling is reasonably required for the operation of the agricultural activity conducted on the land." (Planning Controls and Policies [6])
Plain English: A central test is whether the farmhouse is genuinely needed for farming tasks on that property.
"I too find that the particular facts do not warrant a departure from the strong policy position that plainly discourages a dwelling on the review site." (Two wrongs don't make a right [1], referencing policy and prior cases)
Plain English: Even if the applicants have sympathetic personal reasons, the Tribunal will not ignore the clear policy against allowing a dwelling here.
"The planning fee is for the processing of the application not for the granting of the permit." (A refund)
Plain English: Paying a fee to apply does not buy a right to a permit; a refund of fees is an administrative matter and unrelated to the planning merits.
What fact patterns trigger this precedent
This decision is directly applicable where:
An applicant seeks approval for a dwelling on land within the Farming Zone, particularly on smaller holdings (here 21.6 ha) where policy discourages dwellings unless connected to farming (see Planning Controls and Policies [6]).
The applicant cannot supply evidence that the dwelling will be required for the ordinary operation of agriculture, or that it will support intensive or genuine farming activity (Purpose of the Farming Zone [1]).
The site previously contained a house which no longer exists, especially where the use has lapsed for many years and there is no proof of an existing right to continue a dwelling (Two wrongs don't make a right [1]).
Applicants rely on non-planning arguments such as administrative valuation errors, delay, or personal hardship as the primary basis for a permit application (Two wrongs don't make a right [1]).
In those circumstances Lehmann signals that tribunals will generally refuse permits unless the applicant produces convincing agricultural justification or other planning-based grounds to depart from policy.
How later courts have treated it
This judgment itself cites and applies prior Tribunal decisions (Gippsland Coastal Board and Spedding) to frame how personal circumstances weigh against policy. The Lehmann decision endorses that approach and applies it to its facts. The immediate decision record does not list subsequent decisions that have treated Lehmann. Practitioners should therefore use Lehmann primarily as persuasive Tribunal-level authority confirming established VCAT lines on Farming Zone applications rather than as a High Court or Court of Appeal precedent. Users needing post-2009 citation history should search VCAT and Victorian appellate decisions for citation chains; that material is not contained within this judgment.
Still-open questions
Several practical evidentiary and doctrinal questions remain for parties and practitioners in similar cases:
What specific evidence will satisfy the Tribunal that a dwelling is "reasonably required" for agricultural operations? Lehmann stresses the absence of that evidence but gives limited guidance on the precise standard or types of material (e.g., operational plans, enterprise schedules, labour needs, seasonal presence needs).
How should tribunals balance marginal farming uses on smaller lots where some agricultural activity exists but the economic viability is marginal? Lehmann notes potential marginality ("the placement of a dwelling on 21 hectares in this location, in itself may not be completely harmful") but does not supply a quantitative or qualitative threshold for acceptability (Purpose of the Farming Zone [4]).
How much weight should be given to site-specific constraints or environmental risk (e.g., proximity to creeks) when siting alternatives are constrained? Lehmann mentions setbacks and proximity to Black Dog Creek as limiting options, but this was not determinative given the primary policy failure.
What is the evidentiary value of historical permissions that have lapsed long ago? Lehmann treated the long lapse as fatal in the absence of current use rights, but cases with more recent lapsed permissions or a history of recurrent authorisations may fall differently (contrast to Spedding which involved expired permits).
How will interim exhibited amendments be treated in future? Lehmann gives no weight to Amendment C24 because it was not seriously entertained. The threshold for when an exhibited amendment acquires weight remains a recurrent planning question.
Conclusion: Lehmann v Indigo SC is a clear re-affirmation at VCAT level that planning policy protecting farmland is applied strictly. For applicants seeking dwellings in Farming Zones the important practical lesson is to prepare robust agricultural justification material and not rely on personal circumstances or administrative histories to carry the decision.
Judgment (39 paragraphs)
[1]
Lehmann v Indigo SC [2009] VCAT 470 (24 March 2009)
[2]
Use and development of a dwelling, Farming Zone, Local Planning Policy
Cl. 22.02-2 - Land use, development and subdivision
[9]
Farmland containing sheds, water tank and related outbuildings
[10]
This is application by Victor J and Phyllis Lehmann against Indigo Shire Council's decision to refuse a planning permit for use and development of a dwelling at 1948 Beechworth Road in Chiltern. The Council's refuse the application on the following grounds:
The proposal is inconsistent with the State and Local Planning Policy Framework;
The proposal is inconsistent with the purposes of the Farming Zone (Clause 35.07), and in particular:
[11]
The development and use is not associated with any genuine intensive agriculture and/or rural production;
2. The development of the subject land is not compatible with the purpose of the Farming Zone and will contribute to an increase in the concentration of dwellings in this locality;
[12]
The proposal will not necessarily facilitate agricultural use of land;
[13]
It cannot be demonstrated that the proposal is not solely for the purposes of providing for a future dwelling for rural living purposes only.
3. The proposal if approved would set an undesirable precedent in the area leading to an increase in concentration of dwellings in this locality and the fragmentation of rural land.
4. The proposal is contrary to the provisions of Clause 65.01 of the Indigo Planning Scheme and in particular the orderly planning of the area.
The applicants' grounds for review have been summarised as follows:
There was previously a house on the property
The Council valued the site as a house
The Council should not taken our money if they were not going to issue a permit
Discrepancies in valuations of the site led to delays which compounded problems with selling the property
[14]
It is proposed to use and develop a farm site of 21.6 ha for a dwelling. There are no detailed plans provided of the dwelling, rather there are outlines of a building envelope together with its relationship with other buildings on the farm holding.
[15]
The subject site is located on the north eastern side of the Beechworth-Chiltern - Beechworth Road about 3km south of the Chiltern township where Black Dog Creek and Deep Creek merge and ultimately meet Beechworth - Chiltern Road. The land comprises four titles which are contiguous except for CA9 Section F Parish of Chiltern which is dissected by the Beechworth - Chiltern Road. This property is an irregular shaped with the frontage to Beechworth - Chiltern Road forming the southern boundary and Black Dog Creek forming the northern boundary.
he subject site is slightly undulating and clear of extensive tree cover except along the creek and road boundaries. There are five sheds and a large water tank located close to the Beechworth - Chiltern Road. These facilities formed part of the farm holding which included the dwelling but subsequently burnt down in the late 1070's and has not been used as a dwelling since.
Surrounding land is mostly agricultural serving sheep and cattle grazing. There are houses on properties to the northwest, west and southwest of the subject site. Generally speaking farmland in the area ranges in size from 25ha to 191ha.
[16]
The subject site and all surrounding properties are located in a Farming Zone. The relevant purposes of this 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 use of land for agriculture.
To encourage that non-agricultural uses, particularly dwellings, do not adversely affect the use of land for agriculture.
There are various State and local planning policies of relevance in this matter[1]. Most of the policies relating to agriculture both in the State and Local section have emphasis on protecting agricultural land and comprehensive and integrated management of resources. The Shire itself has specific aims to encourage protection of landscape and heritage features and when viewed with the farming land underpin Council's emphasis on agriculture and tourism that takes advantage of the Shire's natural and built resources.
In Municipal Strategic Statement[2] the Council seeks, amongst other things to ensure that the use and development of rural land is both compatible and complementary to agricultural activities, encourages new farming enterprises and specifically directs rural living and hobby farming developments into established and/or fragmented areas around Allans and Osborne Flat, Wooragee, Fighting Gully and Barnawartha. There is no policy directive supporting dwellings, which have no relationship with farmland, in this section of Chiltern.
In addition, the Council specifically inserted Clause 22.01-2 - Rural dwelling-Sting and design guidelines which seek, amongst other things:
To ensure that dwellings in rural areas are compatible with:
the environmental characteristics of the area; and
existing and surrounding agricultural land uses.
To ensure the character and visual quality of rural landscapes is not prejudiced by inappropriate development.
To encourage the identification of site opportunities and constraints so as to maximise development opportunities.
Clause 22.02-2 - Land use, development and subdivision in rural areas seeks, amongst other things:
[17]
At the review hearing both parties tabled from detailed written submissions and made oral commentary. I advised the parties I had viewed the site prior to the review hearing which assisted me to understand both is layout and context.
[18]
Usually in a case involving use and development of dwelling in a Farming Zone the issues are separated into examination of the appropriateness of the use and then an assessment of the development, including siting and design issues. However this case principally turns on the appropriateness of the use, when viewed with purposes of the Farming Zone and State and Local planning policy.
In this case there was little information to satisfy me that there had been detailed siting considerations of the dwelling structure other than rudimentary consultation in the identification of an alternative dwelling site. This is understandable because the responsible authority's decision is primarily focused on the inappropriateness of this site in terms of the purposes of the Farming Zone and Local Planning Policy framework.
During the hearing I sought clarification of various proposed locations of the dwelling and it became evident that the details of the siting, whilst otherwise important, was only necessary if Mr and Mrs Lehmann could overcome other significant barriers derived from the purposes of the zone and State and Local planning policies.
This is in some ways an unusual case in that the site previously contained a farmhouse and there is still remnant sheds and farm infrastructure on the site. On the other hand there are physical constrains such as the set backs and proximity to the nearby Black Dog Creek that make its relocation tenuous. Whilst it may have been an original preference of Mr Lehmann to place the dwelling close to some of the remnant farm sheds, the house would have been located relatively close to the Beechworth- Chiltern Road and far too close to the nearby Black Dog Creek having regard to the provisions of Clause 35.07-4. The alternative location is to be preferred if the dwelling is to be erected on this site at all.
[19]
One of the purposes of the Farming Zone is to ensure that non-agricultural uses, particularly dwellings, do not adversely affect the use of land for agriculture. Mr Lehmann provided no information about how the dwelling use would with any other farming purpose either on the land or in the locality. He was unable to advance any reason to suggest why a dwelling should be placed on this farming land, other than there had been one there many years before.
In recent years Planning Schemes and Policies relating to rural areas have been refined to unambiguously discourage dwellings from establishing in farming areas, particularly if they have no relationship with farmland in response to conflicts in use of land in Farming areas and to protect the rural resource base. This culminated in the introduction throughout Victoria of the Farming Zone.
In common terms the provisions and policies were introduced to avoid conflicts between land uses. The usual illustration of a farm conflict is householders introducing domestic pets which can then escape and threaten livestock or where a farmer may use noisy machinery, or spray or run live stock in close proximity to a dwelling or plough a paddock and cause dust and disturbance to the occupants of the dwelling. Other conflict arises when a landowner may sell off small farming lots for a house or rural residential lot at residential land prices. This exercise artificially inflates the value of the land and places pressure on other farm holdings to follow. It also undermines the opportunity for a nearby farmer to purchase farming land and expand existing farm holdings at farm values.
From my observation of the locality the area is relatively conventional farmland. Most dwellings are associated with, or appear to be associated with their surrounding farmland. The placement of a dwelling on 21 hectares in this location, in it self may not be completely harmful, particularly if it is connected to another rural activity, but as presented here there is no relationship proposed with the surrounding area. Instead it just appears an opportunistic attempt maximize the value of the land at the expense of the surrounding agricultural resource. I am concerned that to allow this dwelling use in this rural area will assist to artificially inflate the rural land value and therefore place undue pressure on the ability of farmers to purchase or lease farm land, at farm land prices.
[20]
Clause 22.02-2 of the Indigo Planning Scheme seeks to achieve a balanced approach to the use, development and subdivision of land in the Farming Zone. The Clause contains some relevant objectives including, ensuring that development and changes to the use of land do not prejudice the continued operation of agricultural activities or the productive capacity of the land. Mr Lehmann made no reference to how that proposed dwelling used would advance this objective.
[21]
This local policy is mainly focused on subdivision of land, it is clear that the responsible authority is seeking to protect its rural economy by placing minimum lot sizes for houses and discouraging houses on remnant small farm lots because they could undermine the relative cost of farming land in favour of land used for dwelling only purposes. Reliance on this policy is not a reason to reject this application, however it is an indicator of the concern the responsible authority holds about this farming issue.
[22]
Mr Theron made reference to Amendment C24, and whilst the Council is, similarly seeking to protect, as an interim measure for its farming land infrastructure through this amendment, the Amendment itself has not reached the stage of a seriously entertained planning proposal and therefore I have given it no weight.
[23]
I acknowledge that Mr and Mrs Lehmann have experienced difficulty in proper identification and valuation of their property, but that is an issue between them and the Council administration. However is not a reason to justify the grant of a town planning permit for a dwelling. The original dwelling was destroyed by fire almost 30 years ago. There is no evidence of an existing use right for a dwelling.
I also consider it relevant to refer to recent Tribunal cases which examined similar issues and found:
[24]
Are there factors that override the proposal's non-compliance with the Zone and policy so as to justify the issue of a permit? I am not persuaded to conclude there are. One factor might be the fact that the land is not in a rural use today. Another might be the Peels' expectations with respect to the land given the lot size. My views on these two factors follow.
[25]
I have already stated that I do not consider the land is useless for some rural purpose and thus I do not believe its current use is a factor that carries over-riding weight. The Peels' expectations are understandable, particularly when the land has been rated by the Council as residential. But this also does not outweigh the fact that the outcome of this permit application, if approved, would undermine the unambiguous aims of policy with respect to farming areas; policy that has been tightened over time albeit that has been controversial in its application and implementation in many communities.
[26]
The approach to be taken with respect to personal considerations is explained in Gippsland Coastal Board[3] where the Tribunal said:
[27]
It can seem harsh to discount personal circumstances, but the role of decision makers in planning is clearly set out in clause 11.01 of the State Planning Policy Framework...
[28]
To achieve net community benefit, there will be occasions when the interests of individuals must take second place to the broad interests of the community as a whole.
[29]
...it is imperative that planning decision makers are guided by relevant policy. It is not appropriate to exempt individual decision from the application of policy because it is only through the consistent application of policy that objectives leading to net community benefit and sustainable development will be achieved.
[30]
That principle was applied by the Tribunal in Spedding[4] where a permit was not granted for a dwelling on a 7.3 hectare lot in Tatura. In that case, there were many small holdings in the area and permits had issued for a dwelling on the subject land in 1999 and 2002 (both had expired). There was also a lot to the north of the subject land that was of a similar size with a dwelling. The subject land had been used for irrigated crop raising and there was a rotary dairy and access track close by. Senior Member Liston said[5]:
[31]
The history of this land makes this decision which, on the face of it should be straightforward, a difficult decision....A decision to uphold the decision of the council will undoubtedly cause considerable hardship.
[32]
These cases are never black and white, the impacts of each new dwelling is [sic] often marginal, there are usually examples of similar circumstances nearby, and in this case there is the history of permissions affecting the subject land. Nevertheless, I am of the view that the planning policy framework does not favour the establishment of new dwellings in circumstances such as this, and that the particular facts of the case do not support a departure from this policy position.
[33]
I too find that the particular facts do not warrant a departure from the strong policy position that plainly discourages a dwelling on the review site.
[34]
At the end of the hearing Mr Lehmann spoke rhetorically of what would he do with the land now. The answer lies in a proper examination of the purposes of the Farming Zone where the land is been zoned for farming, a permit for dwelling use only is not consistent with the purposes or the zone and the State and Local planning policies.
[35]
Whilst there is no justification for it, the Council officer offered to refund part or all of the application fee on the basis of Council's lack of support for this application. This is a remarkable concession by the responsible authority but nonetheless it did not have to do this. The planning fee is for the processing of the application not for the granting of the permit.
[36]
For the abovementioned reasons the responsible authority's decision is affirmed. It is directed that no permit issue in respect to Permit Application No. PP08/4185.
The responsible authority's decision is affirmed. No permit shall issue for use and development of a dwelling in Permit Application No. PP08/4185.
To ensure that development and changes to the use of land do not prejudice the continued operation of agricultural industries or the productive capacity of the land.
Clause 35.07-5 is the relevant provision to assess development and it identifies General issues, Agricultural issues, Dwelling issues and Design and siting issues. Some of the Dwelling issues include an assessment of:
Whether the dwelling is reasonably required for the operation of the agricultural activity conducted on the land.
Whether the dwelling will adversely affect the operation and expansion of adjoining and nearby agricultural uses.
The potential for the proposal to lead to a concentration or proliferation of dwellings in the area and the impact of this on the use of the land for agriculture.
There are also general matters contained within Clause 65.
The Council has exhibited Amendment C24 to the Indigo Planning Scheme that proposes to introduce a new policy concerning lots smaller than 40 hectares as an interim measure until a rural land use strategy is completed and implemented.
Mr Lehmann referred to a recent subdivision opposite his property, but that created a 40 hectares lot in accordance with the zone provisions and local planning policy. It does not necessarily assist Mr Lehmann's case for a dwelling use.