Little v Cardinia SC [2022] VCAT 477

Little v Cardinia SC [2022] VCAT 477 | Case summary | Zoe

[37]

Approval is sought for the use and development of the land for Rural Industry and a Caretakers Dwelling.

These uses are in association with proposed industrial hemp growing on the subject site. A description of each component is described below:

Associated soil-based enterprise

The applicant has advised that the basis of this enterprise is industrial hemp growing on the subject site. This crop is grown externally and will occupy approximately 77% of the site (6.25 hectares) having regard to the proposed buildings under this application and approved dam under Planning Permit T200241.

The applicant has advised that it is expected that 2-3 crops will be harvested per year. In terms of volume, this equates to 15 tonne of product per hectare (15 x 6.3 = 94.5 tonnes per crop cycle).

Included in the application documents is an Authority for Low THC-Cannabis issued by the Department of Jobs, Precincts and Regions dated 29th February 2019. This approval has a 3 year expiry (the assumption is made there are opportunities for renewal).

In addition to industrial hemp, the applicant is also proposing passionfruit and avocado tree planting however this is considered supplementary and not a primary consideration with respect to the soil-based enterprise.

The applicant has provided details on the feasibility and viability of this enterprise as well as a Farm Management Plan which will be discussed in further detail in the assessment section.

Note: The use of the land for crop raising is as of right pursuant to Clause 37.01-1 (SUZ1). The Cardinia Planning Scheme does not specify the type of crop which can or should be grown therefore the chosen product (industrial hemp) is not a planning consideration.

Rural Industry

The Rural Industry component will be carried out in a proposed building setback 16 metres from the eastern boundary and 70.5 metres from the front title boundary. The building has a ground floor area of 495sqm and has a maximum height of 5.7 metres above natural ground level.

The floor layout comprises a fibre processing area, decorticator zone, hempcrete mixer and dry storage area.

Note: Additional storage areas are also provided and form part of a mezzanine level in this building which whist within the ground floor footprint, this equates to more than 500sqm in total area - a condition of approval will require amended plans to reduce the total floor area to no more than 500sqm.

Once the hemp is harvested, it is to be broken down to 3 main products: hurd, fibre and leaf. This involves a Decorticator which breaks down the primary produce. The building will also be used for the processing of the hemp hurd to form a building material known as Hempcrete Panels which is non-combustible. This involves the mixture of hemp hurd, lime and water and compressing the mixture. The fibre component of the hemp will be on-sold in its raw form which can be utilised for textiles and other products.

Hours of operations are Monday to Saturday: 8:00am - 4:00pm. A maximum of three (3) employees is required. The applicant has also stated that training associated with the building product will be carried out however Council considers this an ancillary component to the enterprise, and as such does not trigger planning approval in its own right having regard to the scale.

[99]

22 In summary then, based on our analysis of the situation described above, we are unconvinced that the activities occurring on the review site:

Are consistent with the purposes of the SUZ1 zone. For example, bearing in mind the threadbare information provided to us regarding the actual net after tax income being generated by the ventures taking place on the review site, we are struggling to see that what has been occurring can be described as "sustainable farming activities". This negative uncertainty about whether or not "genuine farming activities" are occurring on the review site is exacerbated by the fact that the SUZ1 purposes expressly reinforce that this is high quality agricultural land ie a valuable agricultural resource which should be appropriately utilised in terms of its potential. We also see a stark tension between what we regard as the "rural-residential lifestyle" nature of Mr Tyler and Ms Goodall's use of the review site vis-à-vis one of the express purposes of the SUZ1 being "To protect the area from the encroachment of urban and rural residential type development".

Are consistent with the decision guidelines on Clause 6 of the Schedule to the SUZ1. In particular, we have major unresolved doubts whether it can legitimately be said that the range of farming activities being carried out by Mr Tyler and Ms Goodall on the review site require full time supervision by way of a new dwelling being built on the subject land. Rather, we see a strong and straightforward case that (excluding horse agistment) the type of farming activities taking place could readily be done by someone living in an established residential area who commutes to the review site, and that the choice of Mr Tyler and Ms Goodall to wish to live on-site is more a "rural-residential lifestyle" decision. Whilst we acknowledge the situation is more complicated with the horse agistment, we would see it as "the tail wagging the dog" to allow the new dwelling on the strength of this aspect alone, bearing in mind the fairly modest and financially uncertain nature of this agistment activity.

[131]

18. To be primary produce, something must be the product of primary production. In relation to wheat, a growing crop might be referred to as wheat, but it is wheat in the form of wheat grain that would normally be regarded as the primary produce. A crop of wheat ready for harvest would be, or perhaps more accurately become, primary produce when a harvester runs through the paddock taking the heads off the wheat stalks and then mechanically performing the functions previously achieved by threshing and winnowing to get rid of the husks and retain the separated wheat grains. Those grains, whether bagged or in bulk bins, are the agricultural produce.

19. If the wheat is then milled into flour, the flour is not primary produce. It is the produce of secondary, rather than primary production. If the flour is then baked into bread or cakes, that too has lost its characteristic of being primary produce. Again, it is the product of secondary manufacturing.

20. Similarly, logs are the product of timber production, but they lose their status as agricultural produce when they are taken to a saw mill and processed into sawn timber. That processing might involve various steps, in addition to actual sawing. There may be trimming, de-barking, seasoning or kiln drying, sorting and so on; as well as actual sawing. Nevertheless, it is the raw material, namely logs, that is primary produce. The sawn timber, being the product of secondary production, or secondary industry for that matter, is not primary produce but secondary. If such sawn timber is then turned into other products, whether the next stage can be regarded as "building materials" or not, it is still well past the stage where it was agricultural produce. Wooden toys or furniture are not primary produce, and neither is the sawn timber from which they might be made. The products of a joinery, such as window frames, benches and cupboards, might be regarded as still being building materials, but they are the product of secondary processing, and so is the timber from which they are made. Processed (sawn) wood can still be referred to as "timber", but it has ceased to be agricultural produce, whether it is destined to be used for constructing buildings, boat building, toy production, joinery, coffin making, furniture making or anything else.

At a glance

Court

Decision date

Source

Judgment (158 paragraphs)

Little v Cardinia SC [2022] VCAT 477 (2 May 2022)

Parties

Legislation Cited (1)