[2006] VCAT 1019

With respect to permit application 05/0483, the Responsible Authority's decision to grant a permit is set aside.

The Responsible Authority is ordered that no permit be issued pursuant to Section 85(1)(a) of the Planning and Environment Act 1987.

Mr C Fadgyas, town planner of Fadgyas Planning Associates Pty Ltd

Mr A Sang, town planner of St Quentin Consulting represented Mr G Montgomery and Mr C & Mrs S Fitts.

1 This is an application to review the failure by Surf Coast Shire Council ('the Council') to grant a permit within the prescribed time for a two lot subdivision, including the excision of a dwelling, on land at 815 Pettavel Road, Freshwater Creek.

2 The Council explained the site contains an established tourist accommodation business and it is proposed to excise an existing house into an allotment of 0.832 hectares, with the balance of the land to be contained in an allotment of 19.571 hectares.

3 The application was considered by the Council's planning committee on 16 January 2006. The planning officer recommended the application be refused on the grounds that it was inconsistent with clauses 21.07 and 22.02 of the local planning policy framework; was contrary to the purpose of the rural zone; and the subdivision did not increase the productive use of the land for agricultural purposes. However, the committee determined to support the application subject to conditions, including:

i

Amended plans showing the size of lot 1 increased to a minimum of 4 hectares; and

ii

A section 173 agreement to be entered on title stating that no additional lots shall be created for the existing dwellings.

4 Upon receipt of this failure application, VCAT directed that the proposal be publicly advertised and a total of four objections were received from nearby land owners.

5 The recommendation to and decision by the Council's planning committee, together with the objections received, have been taken into consideration in determining this review application.

6 Mr Fadgyas sought leave to amend the name of the permit applicant from "All General Surveying Pty Ltd" to "Jill M Martin". There was no objection to this by the other parties and I granted leave for this amendment.

7 The site is located on the east side of Pettavel Road in Freshwater Creek. It has a frontage of about 260 metres, a depth of around 780 metres and a total area of 20.4 hectares. There are trees along the road frontage and there is remnant native vegetation along the majority of the southern third of the site. The balance of the land is cleared pasture and the Council advised it has been used for grazing.

8 There is an old dwelling located close to the road frontage, in the northwest corner of the site. Three cottages, the main residence, a tennis court and shed are located centrally in the front half of the site, whilst a fourth cottage is located further to the east and on the edge of the remnant native vegetation.

9 The Council explained that the site operates a tourist accommodation business and provided a series of existing planning permits for the site:

•

In 1985, a permit was granted to re-subdivide land into two lots, which effectively created this site and the existing lot to its south;

•

In 1987, a permit was granted for the construction of a second dwelling for the owner who was actively engaged in farming of the land (now known as 'the main residence');

•

In 1989, a permit was granted for a tourist establishment containing 3 cottages for temporary holiday accommodation; and

•

In 1997, a permit was granted for an additional 2 cottages for accommodation of tourists, but only one of the cottages has subsequently been built.

10 It is proposed to subdivide the land into two lots. Lot 1 will contain the old dwelling in the northwest corner of the site and a total land area of 0.832 hectares. Lot 2 (the balance lot) of 19.571 hectares will contain the main residence, cottages, tennis court, shed and the remaining land area, including the remnant vegetation.

11 At the time of lodgement of the planning application and its consideration by the Council's planning committee, the site and surrounding land was contained in a Rural Zone. However, the site and surrounding land are now contained within a Farming Zone under the Surf Coast Planning Scheme ('the Planning Scheme')[1], and I must consider this proposal in light of the current planning controls that affect the site.

12 Under the Farming Zone, a permit is required to subdivide land and each lot must be at least 60 hectares as the land is situated within the Thompsons Creek Catchment area. However, a permit may be granted to create smaller lots if the subdivision is a two lot subdivision; creates a lot for an existing dwelling; and a section 173 agreement is entered into with the owner of each lot created ensuring the land may not be further subdivided so as to create a smaller lot for an existing dwelling.

13 The majority of the site and much of the land to the north and south is affected by a Wildfire Management Overlay. A permit is required to subdivide land and it must be referred to the relevant fire authority. In this case, the permit application was referred to the Country Fire Authority and it does not object to a permit being issued subject to the inclusion of particular permit conditions.

14 The site and surrounding land to the north, east and south (on the east side of Pettavel Road) is affected by a Vegetation Protection Overlay Schedule 1 - Significant Native Vegetation. However, this application does not seek any approval to remove, destroy or lop native vegetation so there is no requirement for a planning permit pursuant to this overlay.

15 The relevant State planning policies are wildfire protection, agriculture and subdivision. Mr Peeters and Mr Sang both highlighted the following factors in the State agriculture policy which must to be considered as part of subdivision proposals:

•

The desirability and impacts of removing the land from primary production, given its agricultural productivity.

•

The impacts of the proposed subdivision or development on the continuation of primary production on adjacent land, with particular regard to land values and to the viability of infrastructure for such production.

•

The compatibility between the proposed or likely development and the existing uses of the surrounding land.

•

Assessment of the land capability.

16 The Municipal Strategic Statement ('the MSS')[2] strongly discourages fragmentation of rural land holdings through subdivision for rural residential or rural living purposes. As such, it states small lot excisions (with or without houses) are inappropriate in rural areas and directly conflict with the rural strategies of the MSS as they result in the progressive loss of rural land to hobby farming or rural residential living.

17 These views are then carried through into the objectives of the Rural and Environmental Development local planning policy:

•

To provide a consistent and equitable basis for considering permit applications for dwellings and subdivision in the rural zones.

•

To ensure that the erection of a dwelling or the subdivision of land in the Farming zone is required to increase the productive use of land for agricultural purposes.

•

To ensure that any subdivision of land or the excision of dwellings will not result in the fragmentation or loss of good quality agricultural land or detract from the scenic or environmental qualities of rural areas.

•

To protect good quality agricultural land and land with environmental significance from small lot subdivision and encroachment by urban uses, particularly the establishment of rural living nodes and hobby farms outside areas designated for these purposes.

•

To protect agricultural production and the normal operation of agricultural activities by preventing land use conflicts, particularly conflicts associated with the introduction of nonfarm related dwellings into rural areas.

•

To maintain technically viable rural lot sizes to protect agricultural land for future generations, and to ensure land can be efficiently managed and continue to be traded for the purpose of agriculture.

18 This policy then goes on to specify particular criteria that must be met before approval may be given to create an additional lot for an existing house. In this case, all of the criteria relating to matters such as the age of the house, the size of the lot to be created and the lack of previous excisions on this land are met. The only criteria not met is the minimum lot size of 60 hectares for the balance lot as this is unachievable when the existing lot size is only 20 hectares.

19 Mr Sang pointed out the MSS has classified the rural land in this area as being of high to average quality with the major farming systems found in this area being those of mixed farming and grazing.

20 The MSS contains a clear message that small lot excisions (with or without houses) are inappropriate in rural areas as it is a means by which rural land is progressively lost to farming, with the smaller lots creating conflict with farming and other agricultural activities. It also strongly discourages subdivision for rural residential and rural living purposes, which is what is intended for this proposed lot.

21 These policy objectives and strategies are not unique to Surf Coast Shire. The protection of rural land from inappropriate use and development has been dealt with through planning policies in Victoria for many years. The particular problems associated with the encroachment of rural residential land use and development are well recognised and I adopt the following discussion on this by Senior Member Byard in the matter of Parkworth Pty Ltd & Anor v Casey CC [2002] VCAT 1594:

Rural planning policy recognises that farming land is a very important economic asset of the state, quite apart from its value to the individual owners. However, its value for farming purposes can be compromised or lost if it is fragmented into small pieces that are not useful for farming purposes. The demand for rural houses and rural subdivisions comes from people wanting to exploit the residential value, as opposed to the farming value, of such land. There is a demand from people who like to live in the country on rural residential lots or hobby farms. Such use is essentially residential, rather than farming, in nature. Fragmentation into small holdings makes the land unuseful for genuine farming. It also inflates the per hectare value by endowing it with a residential rather than a farming value. The land value so inflated often means that farming activities cannot justify farming investment in it. Hobby farmers are not genuine farmers and contribute little or nothing in terms of primary production. Genuine farmers complain that the introduction of these amateurs is detrimental to genuine farming. The amateurs frequently have little skill, aptitude and desire to farm properly. They don't have the same incentives of genuine farmers to keep down vermin and noxious weeds and dogs, other than genuine farm working dogs, often present a danger to stock and wildlife. Furthermore, rural residents frequently start demanding town services which are uneconomic to provide to scattered houses or scattered hamlets in what is supposed to be farming land. These demands involve seeking to have other ratepayers, whether real farmers or urban dwellers, subsidise rural residential lifestyles. The inefficiency of trying to provide urban services in such areas is obvious enough.

22 Having regard to the relevant planning policies and controls in this Planning Scheme, the Council and Mr Fadgyas argued the proposed subdivision produces acceptable outcomes because:

a

The land already contains two dwellings and the subdivision will not change this;

b

The small size of the land, the existing remnant vegetation, the Vegetation Protection Overlay and the possible dieldrin contamination mean the land has limited potential for a sustainable rural activity;

c

The land is used for tourist accommodation so the subdivision will not result in a loss of any rural land use; and

d

The surrounding properties are predominantly used for rural residential living so the subdivision will not result in land use conflicts.

23 I agree about one third of this site is covered with remnant vegetation and is unlikely to be used for farming purposes, particularly given its inclusion in the Vegetation Protection Overlay. However, the same cannot be said for the balance of the land. Further, I am not persuaded that the possible existence of dieldrin prevents the long term use of the balance of the land for rural activities.

24 I acknowledge the site contains two dwellings and tourist accommodation. I also note that the land immediately to the north of the site consists of three lots of about 4 hectares, an 8 hectare lot and a 24 hectare lot. All of these lots contain significant remnant vegetation cover. To the northeast of this site are a further three lots of 23, 14 and 10 hectares respectively. This site is to the south of these allotments and is surrounded by larger allotments to the east, south and west.

25 I acknowledge the allotments to the north of the site have a context that is different to broad acre farming as the lots appear to accommodate either rural living or tourist accommodation land uses. However, the same cannot be said about the land to the east, west and south and in the broader area of Freshwater Creek.

26 The fact is this site is located in a rural area and is zoned for farming purposes. Mr Fadgyas submitted the area is already irredeemably fragmented and developed and whilst I agree with this observation in regard to the adjacent northern lots; I disagree in regard to the broader rural area. I am of the opinion that the subdivision of this site will further solidify the irredeemable fragmentation that has already occurred and this does nothing to advance the rural policies in the Planning Scheme or the purpose of the Farming Zone. All this proposal will do is exacerbate the potential conflict situation by creating yet another rural residential allotment and shifting the interface between rural activities and residential activities further south and into an immediate interface, and potential conflict, with other larger existing rural land holdings.

27 Rightly or wrongly, over time the rural amenity of this area has lended itself to the creation of rural residential and tourism land uses. However, I am of the view these activities are located in this environment because they are seeking to enjoy the benefits of the surrounding rural environment. This surrounding rural environment is sought to be protected by the planning policies and controls in the Planning Scheme. Whilst the existing allotments to the north have a variety of sizes that are well below the minimum lot size of 60 hectares, I am of the view it is inappropriate and contrary to State and local policies to allow a permanent change to occur on this site by creating a rural residential allotment, whether it be 0.8 or 4 hectares in size.

28 The purpose of this subdivision is to enable the existing house and some surrounding land to be sold off. Mr Fadgyas argued its sale could result in greater vegetation regeneration, more habitat for local animals or it could provide an opportunity for further tourist-style accommodation. He made mention of the tourism objectives in the MSS and I note that, in rural areas, this tourism policy comments:

While increased diversification of rural tourist enterprises will continue to be encouraged, principles of sustainability will be applied to the assessment of new proposals. A primary consideration is to ensure that new activities do not compromise the ability for the landholder or neighbouring property owners to continue to pursue agricultural activities on surrounding land.

29 Mr Johnston provided an explanation of a number of issues associated with rural residential and/or tourism land uses that can impact upon the ability to farm his land, which adjoins the subject site and the existing smaller allotments to the north. His concerns about the implications of further subdivision adjacent to his rural land are understandable and I have no doubt that further permanent loss of some of the land on this site to rural residential or tourism may impact upon the ability of Mr Johnston to continue agricultural activities on his surrounding land.

30 The purpose of this subdivision, being the sale of the land to provide additional capital for investment in the existing tourist accommodation use on the balance of the land, does not accord with the policies of the Planning Scheme which seek to encourage the retention of agricultural land and ensure non-agricultural uses do not adversely affect the use of land for agriculture. The existence of non-rural activities and smaller allotments to the north of this site is not sufficient basis to depart from the policies and controls of the Planning Scheme. This site and the surrounding land are zoned Farming. The planning policies do not encourage rural residential land use and development. The policies also seek to ensure new tourism activities in rural areas do not compromise the continuation of agricultural activities. Therefore, despite the existing smaller lots and non-rural land uses to the north, the Planning Scheme does not encourage these outcomes in this area. In fact, the Planning Scheme discourages them. Given this, I am not persuaded that the proposed subdivision is appropriate.

For the above reasons, the decision of the Responsible Authority to grant a permit is set aside. It is ordered that no permit be issued.

[1] The new rural zones came into effect on 23 February 2006.