The decision of the responsible authority affirmed. No extension of permit no P05/519 issued 19 July 2006 is granted.

Request for extension of time under Section 81(b) Planning and Environment Act 1987 in which to certify the time to certify a plan of subdivision.

3 lot subdivision (re-subdivision to create 2 residential allotments).

The existing lots are Lot 1 (7.173 ha), Lot 2 (4.046 ha) and Lot 3 (4.046 ha) containing existing dwelling and shed.

The proposed lots are Lot 1(400 m²) vacant, Lot 2 (14.496 ha) containing existing dwelling and vines, and Lot 3 (4000m²) vacant.

Section 69(1) Planning and Environment Act 1987

Clauses 17.05, 21, 22.06, 35.05, 35.05-3, 35.07 Schedule, 35.07-3

The land is located on the south eastern side of Sandilong Avenue between Eleventh and fourteenth Streets, Irymple, comprising 3 titles with a total area of 14.265 ha. used for horticultural purposes (vineyard), associated dwellings and shed

12 Fitzroy Street St Kilda Pty Ltd v Port Phillip CC [1993] 3 VPR 103

Kantor v Murrindindi SC [1997] 18 AATR 285;

Freeman and Freeman Land Surveyors (for Pasquale & Sylvana Cufari) v Mildura RCC [2005] VCAT 1979 (22 September 2005);

Mifsud v Melton SC [2006] VCAT 1488 (26 July 1488);

Central Portland Hotel Pty Ltd v Glenelg SC [2006] VCAT 1205 (19 June 2006);

Roger C Jaques v East Gippsland SC [2007] VCAT 1466 (9 August 2007);

Roy Costa & Associates v Mildura RCC [2007] VCAT 2106 (23 October 2007);

Roy Costa & Associates v Mildura RCC [2008] VCAT 801 (12 May 2008);

1. This is an application[1] for review of Mildura Rural City Council's (council) decision[2] to refuse to grant a an extension of time under permit no P05/519 issued 6 March 2006 for subdivision in which to certify the subdivision in respect of the land at 1124 Sandilong Avenue, Irymple .
2. The application for extension of time for a further 2 years to certify the plan of subdivision was lodged with council on 11 January 2008 (before the expiry of the time for certification of the plan on 6 March 2008). The letter seeking the extension stated the reasons for the request were:
   1. Due to unforeseen circumstances the owners believe they will not be in a position to commence the Subdivision until early 2009.
   2. The subdivision meets the relevant provisions of the Mildura Planning scheme.
   3. Should a new application be lodged, we believe that a permit would be granted.
   4. Granting an extension will not create and adverse effects to the surrounding area.
3. Notice was given of the application. No objections were received.
4. There were no referrals of the request for extension of time under s 55(1) PE Act.
5. On 5 May 2008 Council, consistent with its planning officer's recommendation, declined the request for extension of time. No reasons were given in the letter, but the delegates' report reveals the grounds for refusal were that:
   • the change in the zoning of the land from Rural Zone to Farming Zone and consequential changes in policy, and
   • a permit would not be issued should a fresh application be made.
6. The application for review was lodged with the Tribunal on 20 June 2008. The stated grounds for review rebutted the grounds for refusal.

1. Council and the applicant's representatives tabled and spoke to written submissions. These, together with the plans, photographs and other material tabled in the course of the hearing, are attached to the Tribunal's file. No expert evidence was called.
2. The hearing of this proceeding occupied 1 day. No inspection of the land was sought by the parties or was necessary.
3. The application was heard simultaneously with two other applications for extension of time Nos. P2128/2008 (Waddleton) and P2289/2008 (Capogreco) involving similar permits and circumstances in the City.

1. The land, the existing lots and the lots authorised by the permit are described in the Information above.
2. The land is situated in the core horticultural area of Irymple. Surrounding land is generally used for horticultural purposes and is zoned Farming Zone, but there are a number of "rural residential" sizes allotments in the surrounding area and along Sandilong Avenue. Three such allotments have previously been excised form the subject land.
3. There is some Residential 1 zoned land to the north east of the site at the corner of Karadoc Avenue and Eleventh Street.

1. The land is zoned Farming zone under the Mildura Planning Scheme. At Clause 35.07, the relevant purposes of the zone, in addition to implementing the State and Local planning policy framework, are:
   • To provide for the use of the land for agriculture.
   • To encourage the retention of productive agricultural land.
   • To ensure that non-agricultural uses, particularly dwellings, do not aversely affect the use of the land for agriculture.
   • To encourage use and development of land based on comprehensive and sustainable land management practices and infrastructure provision.
   • To protect and enhance natural resources and the biodiversity of the area.
2. Under clause 35.07-2 a permit is required to subdivide land, and the clause further provides:

Each lot must be at least the area specified for the land in a schedule to this zone. If no area is specified, each lot must be at least 40 hectares.

A permit may be granted to create smaller lots if any of the following apply:

• The subdivision is to create a lot for an existing dwelling. The subdivision must be a two lot subdivision. An agreement under Section 173 of the Act must be entered into with the owner of each lot created which ensures that the land may not be further subdivided so as to create a smaller lot for an existing dwelling. The agreement must be registered on title.
• The subdivision is the re-subdivision of existing lots and the number of lots is not increased. An agreement under Section 173 of the Act must be entered into with the owner of each lot created which ensures that the land may not be further subdivided so as to increase the number of lots. The agreement must be registered on title.
• The subdivision is by a public authority or utility service provider to create a lot for a utility installation.

1. The Schedule varies the minimum lot requirements in two relevant respects. It is 10 ha. on all land within a gazetted irrigation district or on land where a water licence has been issued and applied to land used for horticultural purposes. For all other land, the minimum lot size is 100 ha, except where no permit is required for a dwelling (not applicable in this case as "dwelling" is a Section 2 use in this zone and a permit is needed for construction and works).
2. Clause 35.07-6 sets out an extensive list of decision guidelines.

1. I have considered the submissions of the parties, the material produced at the hearing and on VCAT's file and my inspection of the site.
2. As mentioned above this matter was heard together with two other applications for extension to permits in the City of Mildura. The matters were heard together because they involved similar issues, but the facts in each case were different. Because of these differences a separate decision has been prepared for each case.
3. The argument in this application (Mapkams) was argued by Mr Vorchheimer of Russell Kennedy Lawyers for the responsible authority. In the other two applications, council was represented by planning officers. However, Mr Vorchheimer and the planning officers, Ms Collins and Ms Shaw, co-ordinated their arguments so the principal legal submissions and review of the case material was made by Mr Vorchheimer, as well as the analysis of the facts in Mapkams, and Ms Shaw and Ms Collins argued the respective merits in the Capogreco and Waddleton applications.

1. The Minister of Planning wrote to the Mayor of the City of Mildura on 23 September 2008 and a copy of his letter was produced to the tribunal expressing a view on the appropriateness of recently granted permits of subdivision and excision of lots from Farming Zone land for residential dwelling.
2. The Minister has not sought to intervene or become a party in these proceedings. I understand the letter was produced to the tribunal to indicate the Minister's concern, and, whilst unstated, the tribunal may draw the inference that the Minister's letter influenced their decision to refuse the extensions to permit in these cases.
3. The parties were professionally represented and made detailed submissions on the changes to the planning scheme, the current planning controls and the application of the principles regarding extensions of permits. The Minister's letter is not a submission to the Tribunal in this application and cannot be taken into account. The Tribunal is obliged to consider the application of the planning scheme and the principles relating to the extension of permits, irrespective of communications and discussions outside of the tribunal process.

1. It was common ground between the parties that the key issues were whether the permit should be extended, having regard to the principles enunciated by the Victorian Supreme Court in Kantor v Murrindindi SC[3].
2. Kantor has been considered in a number of tribunal matters, most notably by Member Martin in Central Portland Hotel Pty Ltd v Glenelg SC[4] and Mifsud v Melton SC[5]. In Central Portland Hotel at [51-52] he identified the correct framework to reach a finding whether or not a permit should be extended.
3. This case that this is not an "out of time" decision where the application for the extension of permit was made after 3 months had expired after the time for certification or commencement of works as required by section 69(1) P&E Act[6].
4. The matters the Tribunal must consider under Kantor are

1. whether some adequate reason or material as to why the permit should be extended has been advanced (that is there needs to be more than just a simple request made); 2. whether there has been any change in relevant planning policy or legislation;

1. whether there was any suggestion that the permit holder has been "warehousing" the permit;

1. any intervening circumstances of relevance, such as initial steps taken by the permit holder towards the commencement of the project; 2. the total elapse of time involved, that is the argument to extend will be more more difficult if there have already been previous extensions and visa versa; 3. whether the original time limit for the development was adequate in all the circumstances; 4. whether the economic issues involved recently affected the progress of the project, and 5. The probability that if a request made to extend time was refused and a fresh application for a permit would be made, it would be granted. Such a conclusion might perhaps be reached if planning policy remained unchanged; and if it seemed improbable that, if a fresh policy application was made, any new considerations[7] would be raised by potential objectors.
2. The issues in these three cases are:
   1. whether an adequate reason has been advanced for the extension;
   2. that there has been a change of planning policy; and
   3. whether the permit would be refused should a fresh application be made.

1. The grounds for the extension were set out above. Ms Lardner submitted that the "unforeseen circumstances" related to the drought and the grant of the permit coincided with the advent of warnings concerning unprecedented water shortages for allocation throughout Mildura. It is common knowledge that Mildura and other areas have been in drought for 8-10 years, but the impacts of decreased water allocation became critical in early 2006. She submitted the applicants rely for their livelihood on the production and harvesting of table grapes on the land, but in the district irrigation water allocations have fallen from 95% in 2006/7 to 43% in 2007/8 and 21% in 2008/9. It appears warnings that this situation was likely to occur were made in mid 2006, if there was not sufficient rain. She submitted the water allocations are insufficient to irrigate the crops on the land, to keep the vines alive and produce a harvestable crop, and the applicants have been obliged to buy water at a high cost. In this case, they need to purchase 90.6 megalitres at a cost of about $36,000, forcing them to "tighten the purse strings" and relegate non-essential expenses.
2. In this context, it is noted that the Plan of Subdivision in the permit application was not prepared by a surveyor, but was a sketch. Thus, the necessary costs to move to certification involved $4-6,000 for preparation of a Plan of Survey, certification fees of about $1,000, additional council and title office fees and the cost of doing any works required by the permit. She stated that in each case the applicant intended to proceed with certification after the harvest when the returns from the sale of the crop began to come in (in instalments).
3. I find these are adequate reasons for making a request for the renewal of a permit. This is not a case where the applicants have done nothing or have been "sitting on their hands". Serious unforeseen circumstances have intervened, namely, the failure of rain to produce water for irrigation depleting the applicants resources to fund the costs needed for certification.
4. This is the first extension for a permit. It is my view that council should not be unduly strict in considering first requests for extensions of time. Many things can occur between the grant of a permit and commencement of work, and many difficulties can arise, such as delays in preparing the working drawings and endorsed plans, financing difficulties, sales of a property with the permit, difficulties in finding consultants, builders and tradesmen to commence work and so on. The tribunal must have regard to the practical realities of life and take a reasonably balanced view of the circumstances.

1. The decision in 12 Fitzroy Street, St Kilda Pty Ltd v Port Phillip CC[8] sets out a basic principle for applications to extend the life of a permit. At [22] the Members say:

It is a different situation altogether if a refusal would be the inevitable result of a new application. The purpose of limiting the life of permits is so that they will not survive unacted upon until they are revived after they become inappropriate due to changes in circumstances. Such changes might be changes in the nature of the land and locality so that the proposal is no longer appropriate. The other sorts of changes referred to in the authorities is where planning policies have changed, or planning scheme provisions have changed so that the proposal has become undesirable or contrary to current policies, or indeed prohibited.

1. This is not a case where the proposal has become prohibited.
2. Also, it is relevant to confine the Tribunal's attention to the provisions and policies which are relevant to the permit application. This permit allows subdivision of land controlled formerly by Clause 35.01-4 in the Rural Zone and now by Clause 35.07-3 in the Farming Zone. In both a permit is required to subdivide land. The schedule in each case specifies the minimum areas for each lot as 40 ha, or the area specified in the schedule detailed above.
3. Each provides that a permit may be granted to create smaller lots in the case of a re-subdivision (amongst other circumstances). In the Rural Zone the provision reads:

The subdivision is the re-subdivision of existing lots. The number of lots must not be increased and all lots must be at least 0.4 hectares.

The subdivision is the re-subdivision of existing lots and the number of lots is not increased. An agreement under Section 173 of the Act must be entered into with the owner of each lot created which ensures that the land may not be further subdivided so as to increase the number of lots. The agreement must be registered on title.

1. Accordingly, the permit triggers are the same except that the need for a minimum size of 0.4 ha is deleted, but a Section 173 Agreement preventing further re-subdivision is now required.
2. Ms Lardner submitted that in relation to re-subdivision the purposes and the decision guidelines were similar. However I conclude the contrary is the case and that the Farming Zone places a higher emphasis on the retention of productive agricultural land and ensuring that non-agricultural uses, particularly dwellings, do not adversely affect the use of land for agriculture. The introduction of this into the purposes of the zone is highly significant.
3. The decision guidelines also have been changed.
4. Council conceded that the "dwelling issues" in the decision guidelines should not be considered because this is not an application to construct a dwelling, but rather to subdivide. Construction of a new dwelling requires a permit for use under Clause 35.07-2 as a section 2 use and under Clause 35.07-4 for buildings and works is needed, and also the provisions of Clause 35.07-2 must be complied with.
5. However, the agricultural issues in the decision guidelines include:
   • whether the use or development will support and enhance agricultural production.
   • whether the use or development will permanently remove land from agricultural production.
   • the potential of the use or development to limit the operation and expansion of adjoining and nearby agricultural uses.

1. It is also appropriate to consider the re-zoning and policy changes in the context of the question as to whether a new permit would be granted if the application for an extension time was refused. I do not accept Ms Lardner's submission that no new circumstances exist in this case. In her argument, she skilfully relied on the Central Portland Hotel decision where the original permit application had failed to consider relevant heritage issues and the Tribunal held that the recognition of the failure to do so was a relevant new circumstance, but a change in the zoning is also a relevant new circumstance which, in my view, triggers the need to consider the question of whether a new application will result in a refusal. In Mifsud v Melton SC[9] Member Martin said:

"...I consider that the various changes to the planning framework since 2001 would raise such new considerations (notably the fact that the subject land now lies within the UGB rather than outside or it.)

1. I do not take into account the references to Amendment C30. Mr Vorchheimer did not refer to it, even though it was referred to in the delegate's report for the original permit application.
2. Mr Vorchheimer argued that the Tribunal in Freeman and Freeman Land Surveyors (for Pasquale & Sylvana Cufari) v Mildura RCC[10], laid down a number a number of tests for the assessment of subdivision applications, and he submitted that an assessment of this proposal against the test would result in a negative result.

A - Proposed trade-off prevents a loss of land to productive horticulture

New residential lots will result in the loss of 0.4ha of land from horticultural use and production, and would require the removal of vines.

B - Proposed trade-off avoids any new loss of land to productive horticulture

New residential lots will result in the loss of 0.4ha of land from horticultural use and production, and would require the removal of vines.

C - Proposed trade-off results in a lot suitable for productive horticulture without a dwelling or the possibility that a dwelling can be constructed

The larger horticultural allotment will contain the existing dwelling on the land.

All lots in the subdivision will have the potential to contain a dwelling.

D - Proposed trade-off results in a lot suitable for productive horticulture greater than 12 hectares in area

The proposed re-alignment will result in a productive horticultural lot of 14.465ha in area.

E - Proposed trade-off results in a lot suitable for productive horticulture greater in area than any existing lot

The proposed re-alignment will result in a productive horticultural lot to14.465ha (increased from 7.139ha).

F - Proposed trade-off avoids the use of land for purposes unrelated to productive horticulture

The proposal will result in the creation of two new rural residential lots, each with an area of 0.4ha, unrelated to use of the land for horticulture.

1. This subdivision will replace 3 allotments each capable of horticultural production, 2 containing a dwelling, and 1 large allotment without a dwelling with 2 small allotments, 1 with a dwelling and 1 without, and both incapable of sustaining horticultural production, and a large remaining horticultural allotment with a dwelling.
2. The only purpose for the new vacant small allotment could be for a dwelling and other small allotment with a dwelling is unattached to horticultural use. I find the subdivision will result in
   • an increase in the potential for an additional dwelling to be located on the new small vacant allotment;
   • An existing dwelling on a lot unrelated to horticultural use, adjacent to this and surrounding horticultural properties;
   • 4.046 hectares being removed from agricultural production.
3. It is not contested that the conduct of a vineyard can have impacts on nearby residential activity, through night work, spraying and machinery noise and the alike
4. These outcomes are clearly contrary to the purposes and decision guidelines of the Farming Zone, as elaborated in the Explanatory Report for Amendment C37 effecting the change.
5. That the 3rd lot of 14.465 hectares will be a remaining single horticultural allotment is not relevant because this area is already used for horticulture, although subdivided, although the prospect of a larger horticultural operation on the single lot creates the opportunity for a higher level of conflict with neighbouring residential uses unconnected with agriculture.
6. Accordingly, in this case I find that despite this being an application for only a first permit extension with sufficient economic reasons for making the application, the application should be refused on the grounds that there has been a change in planning policy and that a planning permit should not be granted if the application for extension of time was refused and a new permit application was to be made.

[1] Application for review under s 81(b) Planning and Environment Act 1987 (PE Act) against refusal extension of time under a permit.

[3] [1997] 18 AATR 285

[4] [2006] VCAT 1205 (19 June 2006)

[5] [2006] VCAT 1488 (26 July 1488)

[6] For a discussion of this type of application see Waraglen Developments Pty Ltd v Maroondah CC [2008] VCAT 1608 (31 July 2008)

[9] [2006] VCAT 1488 (26 July 1488) @ [39]

[10] [2005] VCAT 1979 (22 September 2005)