//
[2021] VCAT 890
General information, not legal advice.
Victorian Civil and Administrative Tribunal
2021-08-16
Original judgment source is linked above.
Section 82 Planning and Environment Act 1987; Bass Coast Planning Scheme; Farming Zone; Host farm.
Mahood v Bass Coast SC [2021] VCAT 890
1 Pursuant to clause 64 of schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998, the permit application is amended by changing the description of the proposal to 'Host farm'.
2 Pursuant to clause 64 of schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 the permit application is amended by substituting for the permit application plans, the following plans filed with the Tribunal:
Sheet 1 of 5, Sheet 2 of 5, Sheet 3 of 5, Sheet 4 of 5 and Sheet 5 of 5
Proposed Landscape Plan for a Proposed Host Farm Cabin
3 Pursuant to section 127 of the Victorian Civil and Administrative Tribunal Act 1998, the application is amended by changing the description of the proposal to 'Host farm'.
4 In application P589/2020 the decision of the responsible authority is set aside.
5 In planning permit application 180485 no permit is granted.
Mr D Vorchheimer, Solicitor of HWL Ebsworth Lawyers
Mr S O'Brien, Town Planner of Universal Planning. Evidence was called from:
Application under section 82 of the Planning and Environment Act 1987 - to review the decision to grant a permit.
Cl. 35.07-1 and cl. 71.03-2 (use of land in FZ for a Host Farm)
Cl. 35.07-4 (construction of a building and the construction and carrying out of works in association with a use in section 2 of clause 35.07-1; and the construction of a building which is within 100 metres of a dwelling not in the same ownership).
Relevant scheme policies and provisions[1]
The subject land is located on the south side of Howie Lane in Coronet Bay. It has an area of 38.14 hectares and is used for grazing, keeping of horses and hay cropping. The land contains two dwellings, two telecommunications towers, various farming infrastructure, a natural lake, and a large dam which is stocked with various fish species. Surrounding land is used for farming.
1 This proceeding concerns an application to develop and use the land for a host farm. The Bass Coast Shire Council (Council) has determined to grant a planning permit subject to conditions. The applicants were objectors to the planning application and have made this application to the Tribunal for a review of the Council's decision. The grounds of review refer to the use not falling within the definition of 'host farm'; the permit application being piecemeal, the proposal being inconsistent with policy, zone provisions, and decision guidelines of the Planning Scheme; and various other matters such as siting, land capability, and the impact on surrounding land.
2 On the basis of the submissions, the key issues for consideration are whether the proposal is a host farm and, if so, whether it will represent an acceptable planning outcome.
3 Having considered the submissions and the evidence, with regard to the relevant policies and provisions of the Planning Scheme, I have determined to set aside the Council's decision. My reasons follow.
4 Clause 73.03 defines the land use term 'Host farm' as:
An agricultural property used to provide accommodation for persons, away from their normal place of residence, to experience living on land used for agricultural purposes.
6 In the matter of Blackney v Surf Coast SC & Ors[3] (Blackney) the Tribunal found that in deciding whether a proposal is properly characterised as a host farm, the two key questions are:
7 The Tribunal observed that the term 'farm' is not defined in the Planning Scheme and therefore its ordinary meaning must be relied upon, which emphasises use for agriculture.
8 In this instance, there is no dispute between the parties that the land is a farm and is used for agriculture. For in excess of 40 years, the land has been operating as a farm and is currently used for grazing of cattle and sheep, the keeping of horses and for the cropping of hay. These activities fall within parts (a) and (b) of the definition of 'agriculture' provided above. According to the Council and the respondent, the dam situated on the land has also been used for aquaculture (being part (c) of the definition of 'agriculture') for a period of 16 years. The applicants dispute that this is a proper description of that use, a matter which I will return to shortly.
9 The Tribunal in Blackney also addressed the question of what constitutes a farm experience, stating:
14 The experience must be made available at the farm at which the accommodation is provided. If this were not the case, the reliance on a farm experience on land far away from the accommodation would defeat a practical experience and undermine the hosting concept. While the experience might include visits to nearby farms, it must include a substantial part on the farm at which the accommodation is provided.
15 An 'experience' must be more than just being at a farm. It must be more than merely being given information about what happens at the farm. It connotes the opportunity to involve guests in what goes on at the farm. There must be a real and not tokenistic experience, based on the circumstances in a particular case. Nonetheless, guests do not have to be immersed in a farm experience for the whole of their stay and may take excursions to places of interest in the surrounding area.
18 Wandering around a farm at which hay is grown and observing a few cattle and sheep is a low quality farm experience ...
10 The Farm Business Plan[4] which accompanied the amended application details the 'business purpose' as:
To establish an Agri-Tourism business venture in Coronet Bay. Stage 1 of this business would create a unique opportunity for residents and visitors of Bass Coast to stay on a 6 person Bayview Retreat property in Coronet Bay and experience the natural environment of a bush setting alongside a self-sustaining Catch and Release fishery operation. Stage two, will see the development of a secondary Bayview Bush Retreat within the first 24 months, to make this more of a tourism venture as there will be several dwellings to support the tourism component of the business. The proposal is in line with the Bass Coast Planning Shire Scheme and the Visitor Strategy.
The business is focussed around a large dam that is stocked with the rare species of fish, the Murray Cod and a number of other Australian native fish. This aquaculture enterprise is self-sustaining and has been developed over 16 years. Murray Cod is a highly sought-after species in the recreational fishing sector due to its size and longevity. Ordinarily residents and visitors to Bass Coast would have to travel over 300 km to catch a Murray Cod. The dam set [sic] in a very private and picturesque area and would also provide a unique photographic experience a lot closer to Melbourne and Bass Coast. The Bayview Bush Retreat would also allow visitors to stay overnight and extend their visit in Bass Coast to other neighbouring destinations in line with the Visitor Economy Strategy.
11 It is evident from the respondent's submissions that the agriculture with which the host farm is to be associated is the aquaculture, rather than the other activities on the property such as the grazing of livestock, keeping of horses and the cropping of hay. I agree with the applicants' submissions in this respect, which are summarised as follows:
12 In oral submissions, and in response to questions from the Tribunal, the respondent stated that persons staying at the host farm would experience and participate in the aquaculture by feeding the fish, assisting in the maintenance regime of the dam, catching fish, recording their size and weight, tagging and then releasing the specimen.
13 This is not documented in any of the material which forms part of the application. Indeed, the information contained within the farm business plan relates to what can be fairly described as an outdoor recreation activity centred on the catching of fish (such as the Murray Cod, which is otherwise not able to be sourced without travelling some distance - up to 300 kilometres), and also using it as a photo opportunity. Further, the respondent's written submission describes the proposed use as follows:
3.2 The proposed use will be to provide overnight or weekend accommodation for those visiting anglers wanting to experience a fishing venture of catching, tagging and releasing Murray Cod and Bass in a rural setting.
8.7 We say this is a high quality farm experience, as supported in the Farm Business Plan and whilst the catch and tag use is a different form from the surrounding land uses which is predominantly rising [sic] beef and sheep for stock sale, the activities we say constitute a legitimate agriculture use of the lands. Our client who is an experienced long time fisherman will be hands on with the operation and providing the guests with all their required fishing needs such as the specialised circle hooks, bait and who will monitor, tag and record the fish caught. Rods etc will also be provided to beginner anglers such as families who are first timers to this venture. In this case our client will provide hands on tutorials by the lake teaching the skills involved from baiting, casting to reeling in etc.
14 The Council submitted that the use 'comfortably fits the definitions of two specified land use terms', being 'outdoor recreation facility' and 'host farm'. Its submission states:
1.35 Having regard to the description of the Proposed Use, it is Council's submission that it's real and substantial purpose is as a 'Host Farm'. The fact that the Proposed Use might also involve ancillary recreational uses does not change its purpose in this instance. Indeed, it is not certain that all or even most guests will partake in the option of fishing, however all will be staying at the accommodation to experience living on the land used for agricultural purposes. The fact that members of the public are invited to attend the Subject Land may arguably indicate that that [sic] Catch and Release component of the use of the land may operate as an 'Outdoor Recreation Facility', however, based on the application material it appears that the expected revenue is to primarily come from the accommodation arm of the proposed use (comprising 43%, 45% and 45% of the overall income respectively in years 1 to 3), followed closely by the agriculture arm.
15 This proposal has not been sufficiently resolved to support the respondent's case that it is a host farm. The documentation provided does not substantiate the respondent's submissions in respect of the agricultural activity associated with the host farm being aquaculture.
16 The evidence detailed activities that are involved in undertaking aquaculture, such as feeding; conditioning the water; revegetation to improve water quality and habitat; catching, measuring, weighing and tagging the specimens; and maintaining records. I note the applicants' submission that there is no reference in the documentation to the keeping of the fish for agricultural purposes. The only activity detailed in the material forming part of the application is the catching and releasing of fish. I agree with the applicants that, whilst the land is used for grazing and cropping, being agriculture, the host farm use is not attached to these.
17 On the information available I have not been persuaded that the proposal is a host farm. The material forming part of the application does not substantiate that the persons visiting the land will be provided with a farm experience. Rather, I accept the applicants' submission that what is proposed is more of a recreational activity, rather than one that is related to aquaculture.
18 This is sufficient basis for me to conclude that the Council's decision should be set aside and I propose to do so. To the extent that other matters were raised relating to the siting of the accommodation unit; the location of the effluent disposal field and its effect on proposed landscaping; bushfire safety considerations; and the impact on the amenity on the applicants' land, there is no utility in making any findings in respect of these. If a future planning application was to be made, then these matters, in addition to all other relevant considerations, would need to be addressed.
19 For the reasons given above, the decision of the responsible authority is set aside. No permit is granted.
[1] Amendment C160Basc was gazetted on 8 July 2021. By order dated 13 July 2021, the parties were provided with the opportunity to make written submissions addressing any implications arising from the gazettal of the Amendment relating to this proceeding. Submissions have been received and considered.
[2] The submissions and evidence 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.
[4] Bayview Bush Retreat and Catch and Release Farm Business Plan, Version 1.4, prepared by Catchment to Coast - April 2019
Mahood
Bass Coast SC [2021] VCAT 890