Limited versatility but very good dairying and grazing land. May be suitable for orchards and extensive area cropping in some locations but generally not suited to intensive uses such as vegetable growing. Class 3a is suitable for more intensive uses providing particular care is taken to prevent soil erosion or supplementary irrigation is available during summer.

1. I find that the general thrust of both State and local planning policy and the zone and overlays applying to this land require careful consideration of a dwelling in this area. They seek to ensure that the proposed dwelling will not prejudice the use of the land or surrounding land for agricultural purposes and that the dwelling supports agricultural land use.
2. The policy is reflected in the application of the Farming Zone. The purposes of the 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 the retention of productive agricultural land.
   • To ensure that non-agricultural uses, including dwellings, do not adversely affect the use of land for agriculture.
   • To encourage the retention of employment and population to support rural communities.
   • To encourage use and development of land based on comprehensive and sustainable land management practices and infrastructure provision.
3. The overarching purpose of the zone is to promote agricultural land use. A permit is required to use and construct a dwelling on a lot less than 40 hectares. The minimum subdivision size is 80 hectares. The zone includes a range of decision guidelines including specific guidelines for accommodation including:
   • Whether the dwelling will result in the loss or fragmentation of productive agricultural land.
   • Whether the dwelling will be adversely affected by agricultural activities on adjacent and nearby land due to dust, noise, odour, use of chemicals and farm machinery, traffic and hours of operation.
   • 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.

1. The applicant wish to construct a dwelling on the review site which has been owned by the Maraone family since the early 1980s and is now owned by a daughter. The land has historically been used for a small market garden and orchard (70 trees) together with grazing, most recently of up to 10 goats. The applicant noted that the goat herd has been growing and the farm is now Livestock Production Assurance (LPA) accredited for meat goats. There is also a small apiary of five Beehives and they are part of the South Gippsland Beekeepers Association.
2. The land has been well maintained including ongoing weed management. There are existing outbuildings on the land, clustered to the rear of the site (Figure 2). It is close to this location that the new dwelling is proposed (Figure 3). Although the plans do not identify a clear envelope or area for the dwelling and associated waste area, the parties accepted that this could be included by condition.[2]

1. The applicant submits that living on their property and being in close proximity to the livestock will allow them to better oversee the births of kids and look after the welfare of the goats. The applicant seeks to expand the goat herd.
2. The application was accompanied by a Land Management Plan (July 2022) ('LMP'). Land management proposed includes the improvement of paddocks through additional drainage and the inclusion of new shelterbelt planting on the western boundary. The LMP identifies that the property can carry a maximum of about 80 goats but 'historically the property has been run as a hobby farm, and will continue to be run in such a way, with numbers of goats being far less intensive at between 10 and 30 head depending on the season and available feed'.
3. Version 2 of the Land Management Plan (June 2024) was circulated as part of the applicant's submissions for the hearing. Council objected to this document, given that it had not been circulated in accordance with the Tribunal's Practice Note PNPE9. The changes to the Land Management Plan included references to fox threat and the recent loss of three kids. The main change was that the reference under the heading 'stocking rate' which although retaining the identified carrying capacity at 80 goats suggested an increase in the number of goats to 30-50 head rather than 10-30 head as originally set out. There was no justification for the change set out in the report. As the revised plan had not been circulated in accordance with the practice note, accordingly I indicated that I would not rely on this version but noted that there was no change to the overall carrying capacity of the land. The use of the land for the breeding of meat goats does not require planning permission.

Figure 3: Dwelling location and proposed drainage and shelterbelts

**

1. The review site is part of a cluster of 4 hectare lots to the west of Inverloch, north of the rural living zone (Albert Ruttle estate). The pattern of subdivision is shown in Figure 4 extracted from the 2014 strategy (review site identified with black dot). It can be seen from Figure 4 that the review site sits on the edge of a group of six 4 hectare lots. The 2-hectare rural living zoned lots to the south and east are part of an area known as the Albert Ruttle Estate.

1. The history of this area was referred to in the applicant's submission. Amendment L27 to the former Bass Planning Scheme formally rezoned the rural living area for the Albert Ruttle Estate in the early 1990s, a former single 60ha lot. The applicant referred to the Panel report which noted that the Albert Ruttle site was 'bordered on its north-west by a number of 4ha rural-residential lots'. The panel discusses the history of this area and notes that subdivision occurred in the 1980s and 1990s and that the shire of the time encouraged rural living in this location.
2. However, the report also noted that on two occasions, rezoning of this area was contemplated and not supported. Despite this, the panel found that the Albert Ruttle land could be considered for rezoning subject to further strategic work.
3. The applicant also noted several Council permits granted within this area for dwellings in the late 2000s that appeared to be granted on the basis that the development is reflective of the existing pattern of rural residential development.
4. In 2014, the RLUS noted that:

A review of lot sizes in the Shire's rural areas found that there are over 3,000 lots less than 4ha and over 1,600 lots between 4 ha and 40 ha (Table 5-6). Further development on these smaller lots will:

• Continue to place upward pressure on agricultural land prices.
• Constrain farm operations e.g. stock and machinery movement.
• Introduce conflict between urban and rural neighbours arising from farm activities.
• Create and reinforce expectation of future land use change.

1. The RLUS seeks to discourage additional dwellings unrelated to the agricultural use of land and to encourage the use of small lots for innovative uses or niche production activities that are not dependent on or associated with the development of a dwelling.[3]
2. The strategy recommended that Council further analyse the number and location of vacant small lots and prepare a local policy to provide clarity on future use and development of small rural lots. This has not occurred and I understand that the recently exhibited Housing Strategy does not clearly address rural living requirements within the Shire.
3. The review site remains in agricultural use and despite this history, the land is included within the Farming Zone and is not designated for rural living land use. I am required to apply the planning scheme as I find it today.
4. I am not persuaded by the applicant's submissions that the size of the site and use of other land in this area must result in the site being developed with a dwelling in the context of policy that seeks to prioritise agricultural land use and discourage rural living or lifestyle development outside areas identified for this use. The review site is not so identified.
5. However, the context of the review site as an area where there are lots of similar size developed for dwellings is a relevant consideration. I accept that the review site is not remote from services, nor will development lead to a proliferation of dwellings in this area. The subdivision is existing. On my inspection the pattern on smaller lots with dwellings was evident, particularly on Bambrook Road.
6. Council referred to the decision of BRB Law on behalf of the Estate of the late Ian Leslie Montgomery v Bass Coast SC [2022] VCAT 47 which related to land on the southern side of the Bass Highway, on the eastern corner of Ruttle Lane. The review site is immediately to the west of the settlement area of the Inverloch township. That proceeding related to a proposal to excise a 1.226-hectare lot. The proposal before me differs in that I already have a small lot amongst other small lots. However, the reasons in that decision set out the importance of the farming zone and policies that support agricultural land use as I have set out above.

IS THE PROPOSED USE AND DEVELOPMENT OF A DWELLING ACCEPTABLE?

1. Council did not raise any concerns about the location of the dwelling on the site, its built form, or visual/landscape impact. On my inspection, I noted that there is extensive vegetation within the road reserve that screens views to the review site from the public realm and I agree that the proposed dwelling, located to the rear of the site, will have no visual impact when viewed from the highway. The dwelling is also well separated from dwellings on adjoining properties and clustered with the existing sheds and farm infrastructure on the site.
2. The area taken up by the dwelling and surrounds, including the onsite wastewater disposal system, will result in the loss of a small area of agricultural land. I find that this reduction in farming area does not warrant refusal of a permit. As discussed above, a domestic envelope could be included on the plans to be endorsed in the permit.
3. The Head, Transport for Victoria did not object to the alteration of access to the Bass Highway subject to conditions. Council did not contend that the dwelling could not be acceptably accessed and serviced. Council's grounds of refusal did not raise issues in respect to wastewater or on-site disposal. A land capability assessment[4] was submitted with the applicant's submission to the Tribunal and Council did not object to this being relied upon and I am satisfied that this could be addressed by permit conditions.

1. The key issue in dispute is whether the proposed dwelling is consistent with planning policy which seeks to discourage dwellings on small lots within the Farming Zone and places significant emphasis on whether the dwelling is necessary for the operation of an existing agricultural use conducted on the land. Planning Practice Note PN37 explains that rural residential development 'refers to land in a rural setting, used and developed for dwellings that are not primarily associated with agriculture. Some agriculture may take place on the land, however it will be ancillary to the use for a dwelling. It is likely to be carried out for 'lifestyle' reasons and is unlikely to provide a significant source of household income'. The primary use of the land is residential in nature.
2. A farm dwelling is described in the practice note as follows:

Farm workers and their families may need to live in farm dwellings, close to stock, crops or plants that require regular supervision. Farm dwellings that are genuinely required to support an agricultural use are not a form of rural residential development.

1. Council submits that the primary use of the land will be for a dwelling, rather than agriculture. Council notes that the land improvements can occur regardless of a dwelling and that the increase in meat goats is not sufficient to justify the proposed dwelling. Council submitted that:
   1. Whether these agricultural activities would continue with a dwelling is unknown. However, what is known, and a permanent change, is that the approval of a dwelling will sever the land from being a purely agricultural property, used for agricultural purposes at agricultural value, and create the potential for a permanent land use change and permanent loss to agriculture.
2. Notice of the proposal was given to Agriculture Victoria. The authority noted that 'the Land Management Plan & Farm Management Plan and the Town Planning Submission both make reference to the 4-hectare lot size being too small for viable agriculture and that the operation is and will be run as a hobby farm'. The authority submitted that while regular visits to the site were required, a dwelling was not. The advice of the authority was that 'the proposal's justification for a dwelling in the Farming Zone on the subject land would appear contrary to the purpose of the Farming Zone and the strategic objectives of the Bass Coast Planning Scheme'.
3. The permit applicant submitted that Council's assessment does not balance the policy against the other planning considerations such as site context. They say that while the proposed use is limited, that the farm management plan would result in significant improvements to the land. Further they say that the context of this site is important to any assessment.
4. I acknowledge the submissions of the permit applicant that it is difficult for smaller lots to be put to a commercially viable agricultural land use. I find that this is not determinative as it is not uncommon for agricultural land use to be supplemented by off-farm income.
5. The parties referred to many decisions of this Tribunal that address dwellings within rural areas. The question of whether a proposed dwelling supports and promotes agricultural activity was explored in Wiseman v Moorabool SC [2008] VCAT 737 and I consider this remains useful today:
   1. My reading of various Tribunal decisions emphasise a relationship between a dwelling and bona fide agricultural activity conducted on the land itself. The lot size, physical characteristics of the land and its context, and nature of existing and proposed agricultural activity on-site are critical in considering this relationship. The decisions refer to a dwelling assisting in a meaningful and practical way - how will a dwelling assist an existing, developing or proposed agricultural activity? It is not, however, the case that a dwelling must be found to be essential to support the operation of agricultural activity. Rather, a dwelling must contribute to achieving the purposes of the Farming Zone and applicable policies.
   2. There are many proceedings before the Tribunal where a proposal for a dwelling has been advanced in a rural setting. Many have failed because they are proposed on small lots where bona fide agricultural pursuits have not been sufficiently demonstrated; perhaps otherwise described as speculative, token, doubtful or too uncertain for various reasons. Often the proposals were determined to have attempted to create, or would have created, a rural living lot that is at odds with outcomes sought for farming areas. Proposals that have succeeded have often been decided on the specific circumstances related to the site context and the nature of the agricultural activity, guided by the policy direction of the Scheme. The land size may be larger and there has been sound evidence of agricultural activity being undertaken or proposed on the land with real prospects of a dwelling adding value to an agriculture or horticulture in some way.
6. Given the long-term use of the land for the existing uses that have been remotely managed, I cannot find that the dwelling is necessary for the mixed farming market garden or orchard and current grazing uses. I agree with Council that the site is not remote and that regular site visits could be facilitated as has occurred in the past.
7. The LMP seeks to expand the farming of meat goats in addition to these current activities. The LMP identifies an initial herd size of between 10-30 goats as part of the continuation of the overall mixed use hobby farm. In addition, farm improvements including a new shelter belt to the western boundary and improved drainage is proposed that may facilitate ongoing growth of the herd.[5]
8. I accept that providing a house on the site will provide convenience to the applicant in undertaking both existing and proposed land uses as part of a mixed use enterprise. It will enable greater 'hands-on' management of the proposed livestock especially during breeding times and of the existing farming uses. The question is whether this benefit to the owners in outweighs the potential disbenefits of establishing a house on a small rural lot, in this specific location in the Farming Zone.
9. I have been persuaded that a dwelling will support the current and expanded agricultural use of the land. The proposal is within the capacity of this small allotment which has the potential to provide an alternative and more intensive land use given the quality of the land. This contrasts with the land uses on larger lots to the west which appear to be primarily diary or cattle grazing.
10. While the site could be used for agistment as part of a larger holding, I find that the site context here is important. I consider that this outcome is unlikely given the small land size, which is repeated to the north of the highway and to the more rural living holdings to the east and south. Given the subdivision and land use to the east and south, agglomeration is also unlikely. The incorporation of this land into the larger 20 hectare holding to the west could occur, but I note that this lot is developed with a dwelling, has an extensive area of remnant vegetation and appears to be used for grazing.
11. Given the existing pattern of dwellings and subdivision in this area, the location of the highway and the tourism/golf course use to the north, I find that the dwelling will not have any significant impact on the agricultural activities of adjacent or nearby land uses. The exception to this is the property to the west which is 20ha and presently used for grazing. The policy at 14.01-1L requires consideration of mitigation measures such as buffers. In this respect the implementation of the shelter belt as set out in the LMP is important to mitigate impact.
12. The permit conditions suggested by Council require this and all LMP requirements to be implemented within 12 months of the occupation of the dwelling and I find this appropriate, except for the western shelter belt which should be planted prior to the occupation of the dwelling.
13. My findings are specific to this site and its context. It would be difficult to justify a dwelling for this limited agricultural purpose on a larger lot, or where the established large orchard, market garden and other land uses were not present. The specific subdivision and land use pattern in this immediate location has been a key consideration.

1. In determining the conditions to be placed on the permit I have had regard to the draft conditions provided by the Council and discussed at the hearing. I note that the LMP is required to be implemented within 12 months of the occupation of the dwelling unless otherwise approved by Council.

1. For the reasons given above, the decision of the responsible authority is set aside. A permit is granted subject to conditions.

Construct a building or construct or carry out works for a dwelling

1. Prior to the commencement of works, amended plans to the satisfaction of the Responsible Authority must be submitted to, and approved by the Responsible Authority. Once approved, the plans will be endorsed and will then form part of the permit.The plans must be generally in accordance those prepared by Green Design Homes, sheets 02-07, dated 11 November 2022, but modified to show the following:

(a) A 'domestic envelope' for the dwelling and wastewater treatment area, not exceeding an area of 4,000m².

(b) All works to be undertaken as described in the Land Managaement Plan annotated on the site plans.

1. The use and development as shown on the endorsed plans must not be altered without the written consent of the responsible authority.

1. External colours and materials used in the construction of the dwelling must be of neutral and muted tones and be non-reflective to assist in visually blending the building with the surrounding natural landscape, to the satisfaction of the Responsible Authority.

1. Access to the dwelling must be provided via an all-weather road with dimensions adequate to accommodate emergency vehicles.
2. The dwelling must be connected to reticulated sewerage, if available. If reticulated sewerage is not available all wastewater from each dwelling must be treated and retained within the lot in accordance with the requirements of the Environment Protection Regulations under the Environment Protection Act 2017 (Vic) for an on-site wastewater management system.
3. The dwelling must be connected to a reticulated potable water supply or have an alternative potable water supply with adequate storage for domestic use as well as for fire fighting purposes.
4. The dwelling must be connected to a reticulated electricity supply or have an alternative energy source.

1. The endorsed Land Management Plan (or an alternative as approved in writing by the Responsible Authority) must at all times be implemented on the subject land to the satisfaction of the Responsible Authority.
2. Prior to the commencement of use of the dwelling (or such later time as may be approved in writing by the Responsible Authority), the shelter belt proposed along the western property boundary, as described in the endorsed Land Management Plan must be completed to the satisfaction of the Responsible Authority.
3. Within 12 months of the commencement of use of the dwelling (or such later time as may be approved in writing by the Responsible Authority), all other improvement works (drainage, revegetation, fencing and the like) as described in the endorsed Land Management Plan must be completed to the satisfaction of the Responsible Authority.

1. The use and development must be managed to ensure there is no stormwater pollution through the contamination of runoff by chemicals, sediments, wastes or pollutants in accordance with 'Best Practice Environmental Management Guidelines for Stormwater Management and Construction Techniques for Sediment Pollution Control' (EPA) at any time during construction or operation, to the satisfaction of the responsible authority.

1. The development must be managed during construction so that the amenity of the area is not detrimentally affected through the:

(a) transport of materials, goods or commodities to or from the land;

(b) appearance of any building, works or materials;

(c) emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, litter, dust, waste water, waste products, grit or oil; and

(d) presence of vermin.

1. No mud, dirt, sand, soil, clay, stones, oil, grease, scum, litter, chemicals, sediments, gross pollutants, animal waste or domestic waste shall be washed into, allowed to enter or discharged to the stormwater drainage system, receiving waters or surrounding land and road reserves, during the construction works hereby approved to the satisfaction of the Responsible Authority.

1. Before the development is occupied, all sewage and sullage wastewater from the proposed development must be discharged into a new EPA approved on-site wastewater treatment system to the satisfaction of the Responsible Authority.
2. Before the development starts, the area set aside for the wastewater envelope and purposes of distribution and absorption of wastewater must be protected to prevent soil disturbance during construction of the proposed development to the satisfaction of the Responsible Authority.
3. Before the issue of a Certificate of Occupancy, all stormwater discharging from the site, buildings, vehicle access ways and works must be discharged to a water tank, soakwell or otherwise discharged so as not to cause erosion, flooding or nuisance to the subject or surrounding land to the satisfaction of the Responsible Authority Rural access and utility requirements.

1. The existing access must be upgraded generally in accordance with standard drawing GD4010 suitable for an 8.8m Service Vehicle.
2. Any gates controlling access to the property must be located at least 10m from the Bass Highway pavement.
3. Prior to construction, a dimensional plan of the access including drainage pipe with driveable end walls, generally in accordance with standard drawing GD4010, must be submitted and approved by the Head, Transport for Victoria.
4. Prior to occupation the crossover and driveway are to be constructed to the satisfaction of and at no cost to the Head, Transport for Victoria.
5. Driveways must be maintained in a fit and proper state so as not to compromise the ability of vehicles to enter and exit the site in a safe manner or compromise operational efficiency of the road or public safety (e.g. by spilling gravel onto the roadway).
6. Any vegetation removal within the arterial road reserve must be referred and approved by the Responsible Authority.

1. This Permit will expire if one of the following circumstances applies:

(a) The development is not commenced within two (2) years of the date of issue of this permit; or

(b) The development is not completed and the use commenced within four (4) years of the date of issue of this permit; or

(c) The use ceases for a period of two (2) years.

In accordance with section 69 of the Planning and Environment Act 1987 (Vic), an application may be submitted to the responsible authority for an extension of the periods referred to in this condition.

[1] 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.

[2] This was a recommendation of Agriculture Victoria in their submission to the application should a permit be granted.

[3] Page 3, Section 2.3 Key strategic directions, RLUS.

[5] Noting a carrying nominated capacity of up to 80 goats.