• Is the proposal consistent with planning policy?
• Does the proposal as a whole justify the use of the land for a dwelling?
• Are there any other reasons, such as odour impacts (including the strategic protection of existing broiler farms), why the application for a dwelling should be refused?

1. Following from this, we have considered whether a section 173 agreement should be required to give effect to the Farm Development and Property Plan and to provide for responsible land management and certain acknowledgements about the setting.
2. We also make comment below about the need to progress the Farm Development and Property Plan to a state where it is capable of effective implementation via the section 173 agreement.

1. Inherently, we consider that it is reasonable for applicants to 'think outside the square' to propose new agricultural (including horticultural) models to respond to the challenges presented by small (high value) rural sites such as this.
2. We were informed that the nursery operation at the proposed scale would require around twelve truck loads of potting mix per annum. There would also be other vehicle movements, often trucks, delivering and removing materials and plant stock. A plant nursery is also a relatively intensive user of water, as are most intensive production-based land uses. Given this, we are of the view that a wholesale nursery business is best placed in a non-urban setting.
3. We find that the proposal has a high level of consistency with the purposes of the zone and a high number of the decision guidelines. It also has a light 'development' footprint.
4. We find the proposed wholesale plant nursery extremely well suited in terms of use/function and appearance in this Green Wedge setting which is principally dominated by agricultural activities.
5. On the evidence, the use appears to us to be sustainable in terms of the demand on space and resources and the opportunities for long term operation. Similarly, it appears to have practical viability in terms of sound financial potential, even if additional outlays are factored in beyond those documented in the draft Farm Development Plan.
6. We are unable to support the responsible authority's second ground of refusal, that the proposal would remove productive land from agricultural use. We find this ground misconceived.
7. Clearly, the vineyard proposal comprises 'traditional' agriculture and takes advantage of the suitability of soil conditions and general weather patterns.
8. Although the plant nursery proposal does not expressly draw on in-ground resources other than water, it is essentially an above-ground intensive agricultural operation. Relevantly, it would not negatively affect the condition of the land beneath its operations since water and nutrients would be collected for reuse and/or processing.[5]

Is the need for (or desirability of) a dwelling on site adequately justified?

1. Having regard to the layering of policy in the state and local sections of the planning scheme, the key issue is the need to preserve the integrity of the Green Wedge Zone and to prevent it from becoming a defacto rural residential zone.[6]
2. The responsible authority and objectors submitted that, although providing added convenience to the applicants, the use of the land for a dwelling was not reasonably required for the proposed horticultural uses of the land.
3. We are conscious of the point made by Mr Mackenzie that all lot owners of small properties within the Coolart Rising estate are "just waiting for one dwelling proposal to get up". It is clearly important, as reinforced by our reasons in the Miglioranza case, that the area not be permitted to convert in an ad hoc way to a rural residential area. This would erode the current suite of policy controls in the planning scheme given the zoning as it stands.
4. Notwithstanding this, we consider that there is still legitimate scope for lots in the Coolart Rising estate to be used for a primary purpose consistent with the provisions of the Green Wedge Zone, supported by a dwelling on the same land. In that zone, a dwelling is a use for which a permit may be granted. Each case will turn on its facts.
5. In principle, in this case, we regard the plant nursery proposal in particular as a legitimate primary land use proposal rather than an "agricultural add on to a dwelling" to use the terminology espoused by Mr Mackenzie. We are further satisfied that this use generates dependency on a dwelling on the same land.
6. We were impressed by Mrs Lyons' evidence in which she demonstrated a strong knowledge of key facets of the nursery industry based on personal experience. She explained that routine duties include careful and persistent hands-on management of conditions in the greenhouse including watering regimes, temperature, humidity and ventilation. This demand continues until sunset and the burden increases in summer periods in particular.
7. Mr Lyons also appears to us to have the capacity to develop the land with its component uses in the manner proposed, having used such skills in nursery work for over two years in addition to his general building skills.
8. On the basis of the information presented to us, we accept that a dwelling is appropriate on the site to support the proposed nursery operation. We do not accept the same impetus applies to the grape-growing function of the vineyard operation. But the two are not separate proposals. The relevant overlap is the proposed source of live material for the propagation of vinestock as part of the specialised business model.
9. While one could potentially argue that the enterprises could function without full time on site presence, it is clear to us that management under this scenario would be substantially more difficult. In addition, the chances of 'misadventure' to large numbers of plant stock would be considerably increased in such circumstances.
10. Our findings about the integral link between the plant nursery and the dwelling depend largely on the detailed operating model for a wholesale nursery involving propagation of large numbers of plants which require particular care.[7] This is why it is significant that a Farm Development and Management Plan reflecting this business model is tied to the land via a section 173 agreement.
11. There were no real issues raised in relation to the design of the dwelling and we find that it is well suited to its context. Whilst we acknowledge that the building footprint is reasonably large as pointed out by the responsible authority, we are confident that it does not inherently prevent the land from being used meaningfully for agricultural pursuits. A similar observation can be made of the extent of land taken up by the existing tree-lined accessway.
12. The parties accepted that the proposal was consistent with the provisions of the Environmental Significance Overlay (Schedule 4). We concur.

1. The key issue relating to local broiler farms is odour generation. The Mornington Peninsula has a long history of broiler production. The industry has experienced increasing pressure over recent decades from conflicting (or potentially conflicting) land uses as development has occurred on the Peninsula. The development of the 2001 and the revised 2009 Broiler Industry Codes of Practice have taken account of these pressures and sought to provide a framework to address them.
2. The 2009 Code contains refined buffer distances for the interface between broiler farms and sensitive uses. We were informed by Dr Bellair that while the buffers remain a relatively crude tool, they are based on background scientific information and, in the absence of more precise data derived from specific application sites[8], they are the most appropriate decision making tool. We accept this opinion.
3. Dr Bellair was of the opinion that reference to the actual complaints history is more relevant than reliance on odour modelling (eg AusPlume) since regional data inputted into such a model does not provide a meaningful representation of likely odour for the site in question. We were informed that the number of complaints registered with the EPA and the council associated with local broiler farms has diminished substantially over the past 5 years. This is likely to be at least in part due to improved technology and operating practises used at these broiler farms, such that they are operating within their permit conditions.
4. An unusual situation[9] occurs at the broiler farm at 173 Coolart Road, which has multiple broiler production sheds. One of the sheds is some 280 metres from the proposed dwelling with the four others in excess of 540 metres from it. Dr Bellair, supported by the EPA, has calculated buffers as if the outlying shed (as opposed to the cluster of sheds) formed its own 'farm'. Notwithstanding submissions to the contrary by Mr Proctor, we support this approach as entirely reasonable whilst meeting the objectives of the Code.
5. The practical implication of this approach is that if concentric odour buffer rings are drawn around the larger group of sheds (containing a large number of birds) and also the single shed (containing a much smaller number of birds), in effect considering them to be two separate entities, a 'bump' occurs on the side of the larger ring in which the single shed is located.
6. Taking this approach, the buffer distance from the broiler farm partially extends onto the eastern end of the review lot. Notably, the buffer distance does not extend to the western end of the review lot where the dwelling is proposed.

40 Mr Mackenzie emphasised that new residents are likely to generate a higher risk of complaint compared with existing residents who are farmers themselves or who have been living in the area for some time.[10]

1. Having considered the submissions of the parties and the testing of Dr Bellair's evidence in this case, we are not persuaded to depart from the findings we expressed in relation to odour in the Miglioranza case. That is, we consider that it would not be appropriate to refuse the permit on the basis of odour impacts on the dwelling, or the potential impact on broiler farms from residential use in the context of permitting a broader agricultural operation on the land.
2. Our finding does not negate any potential benefit by the council undertaking a survey with respect to odour to assist its management of this area as recommended by the EPA.

1. We were not provided with a water budget for either the wholesale nursery or the vineyard components of the proposal. We consider that this needs to be addressed in the Farm Development and Management Plan and address this issue below.
2. The review site is connected to town water for domestic purposes. We were advised that the primary water source for the commercial enterprise will be that derived from the six 25,000 litre water tanks collecting runoff, which can be supplemented with imported water if required. We were also informed that there may be potential to install a bore under licence from Southern Rural Water, but we were not provided with any information on local groundwater depth, quality, likely flow rates, or proximity of any other local bores.
3. We understand that the quality of groundwater is variable across the Mornington Peninsula and on the information provided we are unable be confident that suitable bore water will be available. We therefore consider that the matter of water supply requires additional consideration before the use could commence.
4. We have no assurance of this, including information on whether this is the case at other local vineyards on the Mornington Peninsula. If, as proposed by the permit applicants, they shift into the production of vinestock as a commercial product, it seems likely that the wholesale nursery business would expand. Water use needs to be factored into the water budget for that enterprise.

1. A key aspect of the application is the Farm Development and Property Plan prepared by Ms Elizabeth Hak. It outlines general parameters for how the wholesale plant nursery and vineyard would be established and would operate on an ongoing basis thereafter.
2. We consider that the contents of this document are rather crude in their current form relative to the scope of document that would be an appropriate standard for endorsement under a planning permit. At the same time, we consider that it is an acceptable starting point.
3. In our opinion, it should be redrafted with the assistance of people with sound understanding of both the plant nursery and viticulture industries on the Mornington Peninsula. In particular the document lacks rigour in description of the nursery and viticulture operations, especially the latter. Most importantly, it lacks rigour in its economic overview. For example:

• It provides a three-line cost breakdown for the establishment of the proposed vineyard to present a total cost of $41,000. It then provides a return figure of $24,500 based on 4900 bottles of wine at a return value of $5 per bottle, allowing for the 'cost of production, bottles, labels and other consumables'. No breakdown, analysis, or substantiation of either the cost or return figures is provided.
• We were informed that the major focus of the viticulture operation is proposed to be the propagation of likely new or uncommon varieties suited to the Mornington Peninsula. However, the Plan provides no indication of the source of information on which the proposal is based; nor the land requirements for this aspect of the viticulture business compared with the grape/wine production aspect.

• As mentioned above, the Plan is confusing in its coverage of water use, and fails to provide a water balance. While the Plan identifies six 25,000 litre storage tanks it provides no indication of how this or total annual storage matches annual or monthly water demands. We are nevertheless reasonably confident that the nursery land use as currently proposed is capable of being designed to be largely self sufficient in its water harvesting and use including detailed attention to recycling. We were informed that in most post-establishment years rainfall will be adequate for the vines, but that in the establishment phase irrigation will be required. The plan does not clarify the source of such water, nor the precise cost of establishment of the irrigation system.[11] We are not confident that there will be adequate water for the vineyard proposal without access to other water such as bore water, but as an as of right use this is not part of our permit consideration.

• Regarding the wholesale nursery operations, the current Plan proposes an annual margin of around $234,000 (Costs $58,000 vs Sales $352,000), while the establishment cost of the nursery is identified at $4,200. Again, we are unable to have confidence in the figures until they are further substantiated, but we expect the return figures to be substantially overstated and the establishment cost to be considerably under calculated.

1. It is not the Tribunal's role to provide a detailed outline of the additional information that should be in the Plan, but it will need to be refined to the satisfaction of the responsible authority. We recommend this include, at minimum:
   • A contents page.
   • Description of the proposal including any intended staging of development or potential for expansion.
   • Establishment and management (operations) of the wholesale nursery operation.
   • Establishment and management (operations) of the vineyard/viticulture operations including the vine propagation and grape growing operations.
   • Expected hours of operation (with identification of any activities with potential to impact adversely on third parties).
   • Details of application of fertilisers and sprays (including primary methods, timing and environmental conditions for application).
   • Indicative budgets covering all components of the operation showing reasonable evidence of research and substantiation.
   • Any relevant Codes of Practice or legislation relevant to the operation of the business and management of the land.

1. We were informed by Ms Hak as documented in the Plan and through Ms Lyon's oral evidence at the hearing that all pest control for the nursery would be achieved through biological methods. In summary, this would occur through the placement and subsequent examination of traps and the release of 'beneficial' bugs to keep 'predatory' bugs in check. Ms Lyons outlined her significant experience with this type of pest control and her findings as to its effectiveness. On this basis, Ms Lyons advised that pesticides would not be used in the nursery operations.

1. Spray drift from vineyards can be a serious matter, and there is significant potential for drift from small vineyards onto adjacent lands. We were informed by Mr Lyons that spraying will be undertaken by hand in still conditions. Vines would be fertilised using water additives through the dripper systems.

53 The above management measures also need to be written into the Farm Development and Management Plan.[12]

1. In this case, we have agreed to the application of a section 173 agreement as proposed by the parties.[13] It is important that the 'agricultural/horticultural' land use be 'locked in' under the Green Wedge Zone as the primary use to which the residence is subservient.
2. On questioning, Mr Lyons indicated that he had full understanding of the implications of the agreement and that he supported its application. We also questioned Mr Beazley on the capacity of Council to oversee potentially large numbers of section 173 agreements for land in a similar position. He responded that Council had not instructed him on this matter but that his advice would be that overseeing section 173 agreements is merely a function of regulating planning permits more generally, and should not be considered an additional burden.
3. We nonetheless consider that section 173 agreements should not be employed as the primary mechanism for the control of land use. The acceptability of the proposal having regard to the zone and policy controls should be the main tool for such regulation, and section 173 agreements should be used sparingly where additional security is needed to minimise the potential for land use conflicts or to maintain the orderly use of land.
4. We are satisfied that this matches the situation before us. The benefit of a planning permit runs with the land. It is not personal to the applicants, as genuine as they appear to be. We consider that without an appropriately worded section 173 agreement, there is some probability that land use on this 2ha lot could, over time, revert to a non-productive rural living situation that would otherwise be contrary to the objectives of the Green Wedge Zone.
5. The challenge that may arise for the responsible authority is if a change to the farm management plan is proposed or if a different agricultural or land use model is proposed. This will need to be carefully scrutinised for acceptability considering factors such as those we have addressed above.
6. We consider that the section 173 agreement to be applied should also provide for the staged expansion of the wholesale nursery operations including vine propagation activity, at the expense of viticultural operations. We consider this to be a valid and encouraged use of the land that may have more potential than the non-propagation component of the viticultural enterprise.

1. The responsible authority originally proposed a condition requiring this. It subsequently withdrew this request on the grounds that it conceded it could not substantiate this imposition.[14] Mr Proctor requested that the draft condition be imposed on the basis of inadequate sightlines and the potential for confusion when vehicles turn into the site rather than Wonderland Drive.
2. There is no record of any traffic difficulty caused by the existing accessway, noting that it was the sole access point to the larger horse agistment property for many years.
3. In our opinion, the sightlines and separation distance from Wonderland Avenue are sufficient to allow its continued use. The layout of the property in the current proposal has been designed to provide separate vehicle access from Wonderland Avenue. In practise, based on the application plans, the original accessway would be highly likely to be used only by vehicles associated with the residence or compact farm machinery attending to the vines intermittently. This is acceptable.

1. The responsible authority proposed a limit on sales from the nursery to operate only from 9am to 5pm. Mr Scally on behalf of the permit applicant submitted that this condition could be dispensed with altogether.
2. We consider that it is reasonable to provide a limitation on loading and/or deliveries, rather than sales, but would extend the time either side of that proposed from 7am to 7pm except with the further consent of the council. This recognises that the area is predominantly agricultural, although there are some residences within reasonable proximity and others may potentially emerge in the relevant estate if they can satisfy Green Wedge 'criteria'.

1. We agree that refinement is necessary to require the plant nursery to commence operation at a scale that is acceptable to the responsible authority at or before the dwelling is occupied. This is critical to our decision to ensure that the dwelling supports the horticultural use rather than standing alone.
2. We support the remaining conditions as drafted, notwithstanding submissions made at the conclusion of the hearing.

1. Although the same underlying principles apply, the facts of this application distinguish it from the earlier two proposals for agriculture plus a dwelling that were refused by the Tribunal. For the reasons above, we support both the use and development of the land for a wholesale plant nursery together with a dwelling. We are not persuaded that the prospect of odour impacts is sufficient justification to refuse to grant a permit.

Permit conditions P500/2011 - 104 Coolart Road, Tuerong

1. Before the development starts, plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must show:

1. A schedule of external materials and colours, which are to be in muted and non-reflective tones. 2. A plan that shows an area not exceeding 2,000 square metres, to be shown as a 'domestic dwelling building envelope', allocated to accommodate all buildings and works, excluding driveways, to be used in conjunction with the use of the land for the purpose of a dwelling.

1. A Water Management Plan to include the following: 1. Provision for water supply of at least 10,000 litres stored for fire fighting purposes, with such supply annotated on the Plans to have Country Fire Authority approved connections and fittings. 2. The proposed source of supply and expected utilization of water on the property.

1. A Farm Management Plan and implementation program prepared by a suitably qualified person which specifically provides for sustainable and productive agricultural use of the land in accordance with the Green Wedge objectives, which includes but is not limited to: 1. A written statement examining the agricultural capability of the land and explaining how the proposed use and development will support and enhance sustainable agricultural production on the land. 2. Any proposed staging in the establishment of farm infrastructure, including the buildings and works to be established prior to occupation of the dwelling on the land. 3. Establishment and management (operations) of the wholesale nursery operation. 4. Establishment and management (operations) of the vineyard/viticulture operations including the vine propagation and grape growing operations. 5. Expected hours of operation (with identification of any activities with potential to impact adversely on third parties). 6. Proposed water budget for respective components of the proposal, an the total operation, including proposed identification of proposed water sources including recycling. 7. Details of application of fertilisers and sprays (including primary methods, timing and environmental conditions for application). 8. Indicative budgets covering all components of the operation showing reasonable evidence of research and substantiation. 9. Any relevant Codes of Practice or legislation relevant to the operation of the business and management of the land. 10. Management and eradication of woody weeds and noxious weeds; and, 11. Best Practice erosion control. 2. A Landscape Plan prepared by a suitably qualified landscape professional, which must show: 1. The location and type of all proposed plantings, 2. A schedule of all proposed plantings, including the species and size at maturity of all planting, including their botanical names. 3. That more than 80% of all proposed plantings consist of species indigenous to the locality.

1. The layout and use of the land, the size and type of the proposed buildings and works, including the materials of construction, on the endorsed plan must not be altered or modified without the consent of the Responsible Authority.

1. The materials and colour of the exterior finish of the buildings must be in accordance with the endorsed plans unless with the further permission of the Responsible Authority.

1. All sewerage and sullage waste from the proposed development must be discharged into an onsite approved wastewater septic tank system, retains all effluent within the boundaries of the subject land, is located to the satisfaction of the Responsible Authority and meets the required setback distances.
2. The dwelling must be connected to an approved waste water treatment and disposal system to the satisfaction of the Responsible Authority prior to occupation.

Note: Works associated with the proposed dwelling must not commence until a permit to install a septic system is issued by Council's Environmental Health Department.

1. All stormwater discharging from the development/use on the land must be contained within the boundaries of the land to the satisfaction of the Responsible Authority.

1. A vehicular crossing accessed from Wonderland Avenue in accordance with the endorsed plans must be constructed prior to the commencement of the approved uses, to the satisfaction of the responsible authority.

1. Unless with the further written consent of the Responsible Authority, deliveries to/from and other vehicle movements associated with the wholesale plant nursery must only occur between 7am and 7pm on any day.
2. The amenity of the area must not be detrimentally affected by the use of development, through the:

1. Transport of materials, goods or commodities to or from the land; 2. Appearance of any building, works or materials;

1. Emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil;

1. All disturbed surfaces on the land resulting from the development must be revegetated and stabilised to the satisfaction of the Responsible Authority.

1. Prior to or concurrent with the occupation of the dwelling, the permit holder must demonstrate that the use of the land for a wholesale plant nursery has substantially commenced in accordance with the endorsed farm management plan, to the satisfaction of the Responsible Authority.

1. Within six months of the occupation of the dwelling hereby approved (or other such time as approved in writing by the Responsible Authority), planting as shown on the endorsed landscape plan must be completed and then maintained in a healthy condition, to the satisfaction of the Responsible Authority. Any dead or diseased trees or shrubs must be replaced as soon as possible. The area set aside for landscaping must be used for no other purpose.

1. Prior to the occupation of the dwelling and the commencement of the dwelling use, the owner must enter into an Agreement with the Responsible Authority pursuant to Section 173 of the Planning and Environment Act 1987. The Agreement must be prepared and registered on the title to the land to the satisfaction of the Responsible Authority. The Agreement must require the owner or occupier to undertake the following to the satisfaction of the Responsible Authority:

1. Implement and maintain in perpetuity, the endorsed Farm Management Plan, or other approved plan to the satisfaction of the Responsible Authority providing for the primary use of the land for an agricultural purpose or other purpose consistent with current day zoning provisions. 2. Construct fencing or freestanding walls that have a rural character and allow for the free passage of native indigenous animals.

1. Not plant any new hedges (with existing hedges to be managed) to ensure scenic views across the site are not obscured.

1. Not construct any bund wall or similar earthworks or artificial barriers that obstruct view lines. 2. The permit holder indicates that they are fully aware of the potential emissions (visual, noise and odour) associated with agricultural activities in the locality including the broiler farms located at 173 Coolart Road and 748 Stumpy Gully Road, Tuerong and proceed with the use and development of their dwelling in full knowledge that one of the objectives of the Green Wedge Zone is to accommodate productive agricultural use and that this activity should be expected, and that they are aware of their obligations in relation to responsible land management. 3. All dogs and cats must be responsibly managed to prevent attacks on livestock and native fauna. 4. All costs associated with the drafting and registration of this Agreement on title, are to be borne by the permit holder. 5. The permit holder shall responsibly manage farming practices including spray drift so as not to impact on neighbouring properties farming practices. 6. This Agreement must be registered by the Applicant on title, prior to the commencement of the use of the dwelling, pursuant to Section 181 of the Planning and Environment Act 1987.

1. This permit will expire if either one of the following applies:
   1. The development is not commenced within two years of the date of this permit; or
   2. The development is not completed or the use is not commenced within four years of the date of this permit.

The Responsible Authority may extend the above periods if a request is made in writing before the permit expires or within three months of the expiry date.

[1] [2011] VCAT 1552.

[2] [2010] VCAT 92.

[3] This is akin to the approach taken by the Tribunal to repeat appeals.

[4] The same property considered in Brown's case.

[6] Unless this is expressly facilitated by a change in zoning and relevant policy.

[7] It is likely that a lower standard of supervision and monitoring would be required when plants are being grown on.

[8] Dr Bellair advised that adequate data collection would require a minimum of 12 months data from a suitable localised monitoring station at a probable cost of around $25,000.

[9] Dr Bellair stated that he is not aware of a similar situation compared with his assessment of approximately 20 other farms. The EPA referred to this as a complex situation.

[10] These groups may either generate odours from their own activities or become more accustomed over time to local odours.

[11] We were informed during the hearing that the establishment cost of the irrigation system based on the permit applicant's own uncosted labour is expected to be $1000 to $2000 for the cost of materials.

[12] We suggest this aspect needs to be documented with input from a person with specific knowledge of that subject.

[13] And as reflected in the recently adopted policy of the council.

[14] Noting that the accessway already exists and VicRoads is not a statutory referral authority.