1. Revised plans[1] were circulated prior to the commencement of the hearing proper. Mr Hooper applied for amendment to the permit application by substitution of these plans subject to some minor amendments set out in documentation dated 12 August 2007. There were no objections to the substitution of amending plans from the parties. I ordered the substituted plans be adopted (with the amendments of 12 August 2007) for the permit application.

1. In support of the amendment to the permit application, Mr Hooper spoke to a series of use and development descriptions based on the various permit triggers. After hearing from the parties as to a consolidated form of the permit application, I ordered the permit application be amended based on an edited version of these descriptors. On further consideration of the submissions as to the various uses and developments, I now order the permit application descriptor be amended as follows:

To use and develop the subject land for the purposes of a residential hotel (accommodation for 60 guests with conference, spa/massage and lap pool facilities and restaurant), walking trails and outdoor recreational facilities (for the use of guests); construction of associated car parking, access tracks, sheds and wastewater treatment facility and removal of native and other vegetation in accordance with the plans submitted to the Victorian Civil and Administrative Tribunal dated 1 August 2007.

1. The review application included a number of expert reports and assessments. This included a short letter report of recommendations as to assessment of noise impacts. The parties at the hearing concurred that this letter report should stand as read and it was not necessary to call the expert to the hearing.
2. Other experts, as set out in these reasons spoke to written expert statements and were made available for cross examination. The parties made written and oral submissions, and provided plans and other supporting written materials and documents. These have been retained on the Tribunal's files.
3. Following the hearing, I attended the site and surrounds in order to view site conditions and consider matters that had been put to me during the hearing.

1. The Council's Delegate Report sets out a description of the site and surrounds as follows:

The subject site is located on the northern side of Browns Road in Fingal. The site has a frontage to Browns Road of approximately 236.64m (irregular boundary line) and a depth of 698.04m. The area of the site is approx. [14.87][2] hectares.

The site is currently used for the purposes of bed and breakfast and guest accommodation. The buildings on the site include [a] Sandstone Homestead with ancillary swimming pool and spa, detached garage, 2 bungalows, 5 cottages and a tennis court.

1. Mr Ryan's evidence sets out that the five cottages and four bed and breakfast suites (contained around the sandstone homestead) accommodate up to 18 guests.[3] Guests in the cottages receive 'breakfast hampers' and the cottages contain cooking eating facilities along with a single bedroom. Guests in the accommodation rooms receive a full 'B&B' service. Small group bookings are accepted, the groups utilising various spaces for gatherings.
2. Mr Fairbairn's evidence sets out a useful description of the site conditions which I will adopt:

The topography of the site is best described as undulating in a haphazard fashion as is typical of the 'cups' area. There are no defined watercourses running through the site. The site is partly vegetated with moonah and tea-tree bush land, a large olive grove and [pasture paddocks] consisting of mainly introduced grass species.

Also typical of the cups area, the soils are generally sand to a considerable depth overlain by a sandy loam topsoil. Below the sand at a variable depth is a layer of limestone which generally corresponds with an associated water table.

The site has an indicative rainfall of 741mm (Cape Schank Lighthouse) and a mean annual pan evaporation of approximately 1250mm (Devil Bend Reservoir).

1. Mr Kern's assessment highlights that 'the site supports approximately 7 ha of the endangered EVC Coastal Alkaline Scrub....considered [to be] of at least state significance'.
2. Surrounding land use and conditions are set out in the Council's Delegate Report:

North: land directly north of the subject site is owned by South East Water zoned for Utility and Services purposes; with land further north being owned by Council and set aside for the proposed Mornington Peninsula Freeway - both these properties contain dense vegetation which is contiguous with the vegetation existing to the rear of the subject site. Beyond this lies land included within the Residential 1 Zone.

East: No.266 Browns Road - this property contains a significant amount of vegetation with a number of sheds etc toward the centre of the site. This land is owned by Council. [The width of this property is approximately twice that of the subject site. To the east of this property is the Rye Waste Disposal and Recycling Centre facility.]

South: Immediately south of the subject site is Brow[n]s Road and beyond this lies Moonah Links Resort and the Peninsula Hot Springs [facility]. [A number of substantively sized dwellings have been developed on the Moonah Links Resort, occupying prominent locations on the undulating dunal landscape.]

West: No286 Browns Road - this property contains a single dwelling setback approximately 90 metres from the site's frontage and an extensive amount of vegetation [exists] to the rear of the land. [Further to the west are similar rural sized blocks containing dwellings, pasture paddocks and vegetation.]

1. In deference to comments as to the landscape being of a rural nature, from my inspection of the site and surrounding area, I find the site to be in a semi-rural landscape. A number of vista's from within and external to the site have local residential and low density residential areas as well as the Moonah Links Resort as a backdrop. These features impinge on what one would reasonably conceive as a rural, i.e. non-urbanised, landscape.

1. The (amended) proposal is to expand the existing agricultural enterprise of olive growing, add a vineyard and provide for hotel accommodation and associated guest facilities. The additional agricultural enterprises are not the subject of the permit application. However, it is intended that the hotel accommodation uses have a functional relationship with the agricultural enterprises. This is set out further in these reasons.
2. The following elements are proposed:

This is a split-level building, located along the spine of a dune on the site's eastern boundary. It contains the main facility reception, an entrance foyer / lounge, water feature, administration offices and staff room, the spa facility, a restaurant, a 25mx3.2m lap pool, various deck areas, an outdoor (group) thermal bath and five outdoor individual thermal spring baths.

The restaurant includes reception/cloak storage desk, toilets, commercial kitchen, bar, two levels of indoor dining areas and an outdoor terrace dining area. The spa facility provides for six massage suites (two with bath and showers and four with shower facilities), a reception and waiting lounge area and toilet. Access to the spa facility is via the main foyer, an interconnecting deck to the Lodge building and from the staff car park area (of eight spaces) on the western side of the building.

Staff car parking and a deliveries area (five spaces) is located on the eastern side of the building.

This building has a site coverage of 553 sqm and total floor area of 727 sqm.[4] The building has a maximum height of 8m with the height generally being between 6-7m. The building is of modern design with multiple level, parapet roofs, external wall framing features and a variety of natural timber, alucobond panel[5], sandstone block and rendered finishes. The eastern and western facades contain limited glazing, by way of highlight style windows. The northern façade in particular, but also the southern elevation, have a higher degree of glazing.

This building abuts the northern end of the restaurant / spa building. The footprint of the building is offset from the southern building, following the line of the low ridge along the property's eastern boundary.

The Lodge contains 20 twin/double suites, a central lounge area and two meeting/conference rooms with associated external deck areas. The conference rooms and decks contain moveable divider walls that allow partitioning into four smaller conference rooms/decks. Each of the smaller conference rooms is provided with a fireplace and bar/coffee station. The southern most conference room contains a kitchen. Under croft staff parking (seven spaces) is provided below the southern portion of this building.

This building has a footprint of 1,626 sqm, of which the conference rooms make up 376 sqm (or 94 sqm for each smaller room). The foyer/lounge area has an area of approximately 100 sqm.[6] Each guest suite is approximately 34 sqm.

The building is in a similar modern style and finishes to the restaurant/spa building and is connected by a common deck and walkway. The split-level building includes a series of flat roof forms and one canted roof over the southern most guest accommodation area. The canted roof follows the ground level such that it does not exceed 8m in height. Glazing is predominantly to the north (from the conference rooms) and east (from the accommodation suites). The western accommodation suites are provided with glazed outlooks to the west.

Ten, double bed studio cabins are proposed in five clusters of two. These are located to the north-west of the main two buildings, in a sweeping arc toward the western boundary of the site. They are to be located on largely cleared land where the topography is more undulating due to the presence of multiple dunes and swales.

Each suite contains a bedroom area[7], ensuite and feature bath, separate living/dining/kitchenette area and an upper floor 'study' which contain day bunk beds. Triangular decks project from the living areas.

Each building has a maximum height of 8m above ground level. Each studio has an overall footprint of approximately 86 sqm[8]. In clusters of two (sharing a common wall along between the ensuites), they form an overall building footprint of 192 sqm. Cladding is a mix of natural timber and painted compressed sheet[9]. Glazing is predominantly to the front of the living areas, overlooking the decks. Depending on the location of the cabins, this provides views to the west or south.

A common vehicle access track is proposed to the cabins with attached carport parking for one vehicle per studio.

In addition to the above buildings, the following infrastructure or other developments are proposed:

• Relocation of the existing driveway access around the proposed building areas and car parks.
• Two parking areas comprising of: an upper car park south of the main building (14 spaces); and a lower car park south-west of the main building (28 spaces).
• A 9,000 sqm of vineyard with a nominal wine production/storage shed and outdoor area of 'special' functions;
• Two tennis courts (16.2 x 3.5m each) with 3m black mesh fence, 4 x 7m high lights to each court[10] and rendered retaining walls (where required).
• A covered barbeque area, change rooms and toilet.
• A wastewater treatment plant and pond/wetland treatment and retention system.
• Planting of an additional 800 olive trees.
• Designation of conservation / vegetation management areas, comprising areas of existing native vegetation for ongoing management and improvement, and areas of revegetation by removing grazing activities and allowing / managing volunteer regrowth.

1. The site is located in a Green Wedge Zone - Schedule 4 (GWZ4).[11] The whole of the site is also subject to Schedules 15 and 23 of the Environmental Significance Overlay.
2. The Browns Road frontage of the site is subject to Schedule 28 of the ESO, Schedule 3 of the Significant Landscape Overlay and Schedule 2 of the Vegetation Protection Overlay. As there are no proposed works or vegetation removal to the sites frontage[12], these overlay controls are not material to this application and are not considered further.
3. The purposes of the Green Wedge Zone include amongst other matters:

To recognise, protect and conserve green wedge land for its agricultural, environmental, historic, landscape, recreational and tourism opportunities, and mineral and stone resources.

To encourage use and development that is consistent with sustainable land management practices.

To encourage sustainable farming activities and provide opportunity for a variety of productive agricultural uses.

To protect, conserve and enhance the cultural heritage significance and the character of open rural and scenic non-urban landscapes.

To protect and enhance the biodiversity of the area.

1. Under the GWZ, a permit is not required for crop raising.[13] The definition of crop raising includes trees, fruit and vines (as horticulture). [14] Accordingly, no permit is required for the additional olive trees or the proposed vineyard. However, any processing of the harvested product (grapes or olives) falls within the definition of rural industry,[15] which is a 'permit required' use.[16]
2. Residential hotel and restaurant are 'permit required' uses under the GWZ. Such uses are conditional, subject to them being:

..in conjunction with Agriculture, Outdoor recreation facility, Rural industry, or Winery.

The lot on which the use is conducted must be at least the minimum subdivision area specified in a schedule to this zone. If no area is specified, the lot must be at least 40 hectares.

1. The applicable lot size under schedule 4 of the GWZ is 80 hectares.
2. This latter requirement is subject to transitional arrangements. The permit application was made prior to 31 October 2006 when this requirement was introduced into the planning scheme[17] and thereby satisfies the transition qualifications for consideration under clause 35.04-8. For the transitional arrangements to remain in force a decision on the application is required by 31 October 2007.
3. In addition to the above conditions to be met, for a residential hotel:

The number of bedrooms must not exceed the number specified in a schedule to the zone or 80 bedrooms, whichever is the lesser.

1. In this case the 80 bedroom limit applies. A similar restriction amounting to a limit of 150 patrons applies to a restaurant.
2. Buildings and works associated with restaurant and residential hotel uses, including the nominated ancillary uses and building and dams for the treated wastewater, require a permit.[18] Decision guidelines are found at clause 35.04-6. These require consideration of general land use planning, rural land use, environmental and design matters.
3. The purposes of the environmental significance overlay (ESO) includes:

To identify areas where the development of land may be affected by environmental constraints.

To ensure that development is compatible with identified environmental values.[19]

1. Unless, stated otherwise under a schedule to the ESO, permits are required for building or works and to 'remove, destroy or lop any vegetation'.[20] A number of exemptions apply to the removal of vegetation. Most exemptions are not applicable in this application however removal of vegetation for fire fighting measures and management (ground fuel control) may apply.
2. Decision guidelines under the ESO include:

The statement of environmental significance and the environmental objective contained in a schedule to this overlay.

Any other matters specified in a schedule to this overlay.

1. The statement of significance for 'Schedule 15 - The Cups' (ESO15) highlights the predominance of the sand dune character of this landscape, its importance as a source area of recharge to groundwater and 'distinctive landscape' bordering Rye. The objectives of ESO15 are:

To protect and conserve the environmental systems, bio diversity, native vegetation, habitat areas, land and soil stability, drainage patterns, and ground water quality of this area.

To promote the sustainable development of rural land and integrated land and catchment management, including the retention and enhancement of habitat corridors and wetlands.

To ensure that subdivision and development density is compatible with maintaining the long term natural, agricultural and landscape values of this area.

To promote siting and design of buildings and works that is responsive to the semi consolidated sand dune landscape character and vistas of this area, and that maintains the scenic value of roads and recreation routes.

1. ESO15 exempts removal of non-native vegetation from permit requirements. A permit is required for the proposed building and works.
2. The statement of significance for Schedule 23 - Semi Stabilised Dunes (ESO23) sets out the susceptibility of this land to wind erosion if the surface is disturbed / removed, particularly on steeper sections of dunes.
3. The environmental objectives include:

To maintain the stability of the unique landform (the Cups) that may become unstable if the top surface is removed in steeper sections.

To ensure that buildings are sited to prevent unnecessary wind turbulence in certain areas such as the windward and leeward top slopes, in order to prevent surface erosion.

To ensure a sustainable intensity of development in semi stable dune areas.

To avoid development on land with a ground slope greater than 25 percent.

1. ESO23 includes decision guidelines that set out consideration of, amongst other matters, the slope of land, alternative siting of buildings and works (outside the overlay area) or alternative practices to better meet the objectives, the means of treatment and disposal of wastewater (and other wastes) and appropriate measures to prevent erosion. ESO23 does not exempt building, works or vegetation removal from permit requirements.
2. Relevant to this application are also the car parking requirements, native vegetation controls and metropolitan green wedge land use found under the particular provisions[21] and general provisions for land used for more than one use and general decision guidelines.[22]
3. The policy context of this application was set out in some detail by Mr Nicol and Mr Ryan. To summarise, relevant State Planning Policy matters relate to metropolitan development and green wedges, providing for sustainable land use, protection of groundwater, noise control, wildfire management, conservation of native fauna and flora, support of tourism and agriculture, and provision of water, sewerage and drainage infrastructure.[23]
4. The Municipal Strategic Statement (MSS) sets out the context and vision for land use in the municipality, including relevantly to this matter, agricultural activities, environmental (bio-diversity) significance, recreation and tourism roles, and rural land use.[24] Local planning policy to support these strategies are set out in the planning scheme in respect to development along main roads and tourist routes, commercial and industrial uses in rural areas, fire protection and the Mornington Peninsula land use units.[25]
5. The trigger for and matters required to be considered in contemplation of a permit are therefore based on a number of provisions and controls supported by a range of policies. As appropriate, I have had regard to these requirements in my reasons.

1. While Council raised a number of grounds in opposition to this application, I have formed the view that these can be summarised as follows:
   • The proposed accommodation and other non-agricultural uses are contrary to the purposes of the GWZ by way of the scale and nature of these uses;
   • The potential for adverse impacts on native vegetation has not been fully considered; and
   • The scale and intensity of the uses may not be appropriate if the demand for water and generation of wastewater have not been adequately addressed.
2. In essence Mr Nicol's submissions points toward the Council being supportive of a 'well designed low key tourist accommodation, that fits in with the site and [the] overall rural context is maintained'.[26] Council's opposition to this application suggests that this is not the situation in this instance.
3. Having considered the various submissions and applicable provisions and policies, I find that the amended application, subject to some further changes addresses these concerns sufficiently to warrant the granting of a permit.
4. In providing these reasons for arriving at this decision, it is first necessary to set out that I found the application, even after amendment, to be somewhat haphazard in its presentation and suffered from a lack of coherent assembling of an overview of the uses being applied for and the operational intent of the site. This is not only in relation to the land uses being applied for but also the nature of the vineyard and olive grove operations. I concur with Council that the absence of a consolidated planning report was a weakness of this application. Nevertheless the information was provided, but it required much testing of evidence and submissions to arrive at a final view.
5. Before entering into the reasons proper therefore, I have set out some consideration of pertinent preliminary matters as to the uses being proposed for this site.

1. It is a fundamental given that in order to assess a proposal against the requirements of the planning scheme, it is necessary to know as precisely as possible what is being applied for. In this instance not only is it important to understand what the uses are, but also their scale and relationship (as will be dealt with later in these reasons).

What is the appropriate designation of the accommodation use?

1. While the studio units may be considered to be group accommodation, the nature of the submissions indicates a close association between these units and the rest of the site development such that one is reliant on the other for services and support. It is likely, on the balance of the explanations put to me, that while patrons of the studio's can be self sufficient to some extent due to provision of a kitchenette, the studio's are to be serviced by way of laundry and cleaning services. It follows that the appropriate nature of the accommodation uses appears to be satisfactorily encompassed by residential hotel.
2. The definition of a residential hotel extends to incorporating conference and function facilities. Mr Hooper and Mr Ryan indicated that the proposal was in part a response to demand for larger conference groups than can be accommodated in the current facilities. When not in use the conference rooms would serve as lounge areas for guests. Setting aside the available floor areas for lounges and conference facilities, it appears that the balance of probabilities weighs toward the use of the conference / lounge areas to be one that is closely associated with the residential hotel functions and is not proposed as a separate use. This is reinforced by the proximity of the conference/lounge rooms to the guest rooms.
3. The designation of the land use as a residential hotel therefore encapsulates the intended functioning of the building and I have adopted this use as that to be permitted. While not actively pursued in oral submission by Mr Hooper or Mr Ryan, and having regard to these reflections on the proposed uses, I would dismiss any inference that the application is a mere extension of the current uses, as was put in the written planning evidence.

1. The permit application was amended such that the patrons of the restaurant are limited to the residential hotel patrons (and any of their guests). Mr Hooper submitted that it was not intended to make the restaurant open to the general public. In this context, I see the restaurant as being an ancillary activity to the residential hotel and not a separate land use in its own right. I have amended the permitted uses to reflect this.

1. Notionally the day spa, thermal spring pools, lap pool, tennis courts and other facilities provided for the use of guests may fall within the ambit of indoor and outdoor recreational and leisure facilities. However, Mr Hooper outlined that these facilities, and most notably the spa and thermal pools, are to be for the exclusive use of accommodation patrons (and perhaps their guests) but not for retail day visitors. As such, he contended that these are ancillary uses, subject to the functioning of the residential hotel use. As ancillary uses, Mr Hooper contends that it follows that such uses need not be subject to a primary permission under the permit.
2. I accept this view however, for clarity of purpose I have nominated these ancillary uses in the primary permission of the permit.

1. Two agricultural uses of the site are proposed, an olive grove and a vineyard. The permissibility of these uses is not under contest, as both are section one, permit not required land uses. However it is relevant to this decision that the bona fides and scale of these operations are required to be established in order to further test that the accommodation uses are in association with an 'agricultural use' (see later in these reasons).

1. An area of one hectare (approx) of wine grape vines are proposed and the plans nominate a wine production building. Further enquiry during the hearing elicited that:
   • After harvesting, the grapes are to be processed and the wine bottled off-site.
   • Wine derived from the site will be sold through the restaurant, or possibly over the counter sales as memorabilia.
2. It was the evidence of Mr Wright that the vineyard was boutique style and likely to result in small positive cash flows after four years but not grow substantially after that.[27] It was also his evidence and recommendations for traditional bush style vines in an area of less than ideal attributes. This leads me to conclude, that in all other aspects, the vineyard proposal, while being capable of supporting a boutique operation is not one that can realistically be claimed to be a typical, commercial viticultural operation, such as may be found elsewhere in the region.
3. Mr Wright conceded that the volume of wine produced from the vineyard would be limited and other wine stocks would be required to meet restaurant patronage demands.[28]
4. Further, Mr Hooper and Mr Ryan were unable to fully explain the use of the 'wine production' building, other than to state it would be used for some patron activities. The explanation did not include wine making activities as would fit in with the planning scheme definition of a winery. In fact, it is their submission that the wine making operations will take place off site. Further, the applicant has not included the use of winery in the application, nor pressed for it during the hearing.
5. Considering the above leads me to conclude that the correct context by which to consider the vineyard is that while technically an agricultural activity, it is one of a very modest scale and provides no more than a subsistence level of production. Its predominant role will be to form landscape and experience elements to the accommodation use.

1. The site currently contains 300 olive trees, with a further 500 trees to be planted (for a total of 800 trees). There was little doubt from Dr Hunter-Payne that the growing of olives at this site, and more broadly across the Mornington Peninsula, can be a viable agricultural activity. It was her unchallenged evidence that the ground and climate conditions were suitable, and coupled with adequate water supply the proposal for olive growing for commercial scale olive production.
2. Dr Hunter-Payne indicated that 800 trees would be sufficient to provide a boutique level of olive production when linked with the accommodation / restaurant sales of the produce and contribute to the wider food tourism experience in the Mornington Peninsula. Her evidence is consistent with the report provided on olive oil production by Mr Nicol.[29] This report indicates that 37% of olive oil producers in Victoria have planted less than 500 trees, while a further 53% have between 500 and 5,000 trees[30]. This report goes on to detail the various segments of the olive oil market and how smaller producers depend on boutique and 'farm gate' retail opportunities.
3. The association of the olive grove with the accommodation, i.e. a captured market, is in Dr Hunter-Payne's opinion, a necessary requirement for the scale of proposed operation to be viable. Her conclusions were subject to a number of recommendations made in her statement of evidence as to the establishment and maintenance of the olive grove, including the adoption of modern and more intensive agricultural production techniques capable of being applied to this site and, more specifically to the existing and planned areas of the olive grove. This was in contrast to the vineyard production model.
4. There is no contest that the extent of the proposed 800 tree olive grove will visually be more extensive than that of the vineyard. Indeed, Dr Hunter-Payne suggested that the extent of the grove and the ability of accommodation guests to access it could provide a 'Tuscan' experience.
5. Having regard to the evidence of Dr Hunter-Payne, I find no reason to doubt that under appropriate management, the proposed olive grove ought to be considered as a potentially viable agricultural activity on this site. I find that the area of the grove and the likely volume of olive fruit production will form the predominant agricultural pursuit on this property.

Should the site be considered, in part a conservation area?

1. Mr Ryan advanced the view that, given the setting of existing, high quality native vegetation and regrowth areas, one could form the view that the site's use could also be considered to be in part a conservation use.
2. From one view, the conservation of land to maintain the ecosystem could be considered as a 'natural systems' land use as defined under the planning scheme.[31] However, the question must be asked, so what? The use as 'natural systems' is a section one, no permit required, land use. Recognition of this land use does not advance the application for accommodation uses being pursued by the applicant. The tests to be met for the accommodation uses does not include 'natural systems' land uses. While the matter of conservation of the native vegetation is relevant to other controls and meeting the objective of the GWZ, the recognition of the 'natural systems' land use is not materially relevant to the determinative matters of this case.

The next hurdle - Is the proposal acceptable in a Green Wedge Zone?

1. In her decision of Jinalec Park PL v Mornington Peninsula SC[32] (Jinalec), Deputy President Gibson considered the 'in conjunction use' tests as set out in clause 64.02 and how these tests may apply to the conditional use requirements under the GWZ. Mr Hooper and Mr Nicol relied on these considerations in advancing their respective views on this matter.
2. The context of the Jinalec matter is not dissimilar to this case, the application for accommodation uses in a green wedge zone. Moreover, in Jinalec DP Gibson has sought to provide some general guidance as to how to approach the test for 'in conjunction with' land uses.[33] In doing so, she had comprehensive regard to the various similar permit applications and proceedings prior and after the introduction of clause 64.02, as well as consideration of the intent of the amendment. When having regard to the substantive matters in relation to this case and those set out in Jinalec, I see no reason for departure from these tests in this matter.
3. Clause 64.02 introduces a two limb test:

If a provision of this scheme provides that a use of land must be used 'in conjunction with' another use of the land:

• there must be an essential association between the two uses; and
• the use must have a genuine, close and continuing functional relationship in its operation with the other use.

1. In distinguishing which use is what within these tests, DP Gibson adopted the terminology of the MWC case[34]:

The uses requiring a permit, which are subject to the condition requiring them to be 'in conjunction with' other uses of the land, are called secondary uses. The uses with which the secondary uses must be 'in conjunction with', are called primary uses.[35]

1. For consistency I will adopt the same terminology.
2. DP Gibson then went on to consider the two limb tests. With respect to the test of essential association she sets out that:

I agree with the Tribunal in Neve that clause 64.02 raises the bar, tightening the 'in conjunction with' condition. I agree that it was intended to clarify that tenuous, superficial or artificial links between uses were not used as an excuse to allow a secondary use.....

In my view, the type of association contemplated by clause 64.02 can be characterised as a symbiotic relationship between the two uses.

....There must be a close association between the two uses, even though the uses are essentially dissimilar in nature, which is of mutual benefit to each use. The mutual benefit must work both ways. What will constitute this type of essential association between uses is a question of fact.

I disagree with Neve that the associations and relationships on the site must relate to activities on the subject land. I consider the association should be between the uses on the land. They can be broad associations and may be aesthetic, economic, practical, environmental or the like. Any association that provides a mutual benefit is sufficient, so long as the second limb of clause 64.02 is also satisfied in terms that the benefit is genuine and continuing.[36]

1. In respect to the test of 'genuine, close and continuing functional relationship' DP Gibson sets out that:

The second limb of section 64.02 emphasises that the benefit must be continuing...Permit applicants will need to demonstrate what the nature of this relationship is and how its ongoing nature will be guaranteed. Permit conditions requiring that the secondary use may only operate whilst the land continues to be used for its primary use would seem to be called for.

In terms of the benefit flowing from the secondary use to the primary use, if this is economic....I would envisage that...[t]here would need to be an ongoing economic benefit that would assist the continued use of the land for the primary use. The benefit would also need to be genuine, not just a book entry. [37]

1. DP Gibson adds a third test, one of scale, noting that such a test is implicit in the inclusion of lot size provisions for the secondary use and explicitly set out in the explanatory report to VC43:

It seems to me however, that it is inherent in the notion of a secondary use being used in conjunction with a primary use that the primary use remains a significant use of the land. It need not be the dominant use of the land. That would introduce its own conundrum of definitional criteria and is not what I consider is required. Nevertheless, it must be evident that the land is being used for the primary use. This use should not be overwhelmed by the secondary use to the extent that a casual observer would say the use of the land was for the purpose of the secondary use and overlook the primary use component.[38]

1. Mr Nicol had particular regard to the latter point that the secondary use must not overwhelm the primary use.
2. DP Gibson went on to observe that while the MWC case set out that scale does not establish interrelationships, it was her opinion that:

...the disproportion between the scale of the secondary use compared to the scale of the primary use in some of the cases decided prior to the Amendment VC43 was part of the "mischief" the amendment was attempting to redress. I therefore consider that the relative scale of the two uses is a factor to be taken into consideration in deciding whether a secondary use is 'in conjunction with' a primary use.

The scale of the secondary use will also be relevant when it comes to assessing the individual merits of the proposed use and development. It is worth noting that the scale and intensity of the proposed use and development was an additional reason for refusing a permit in Neve separate from the failure of the proposal to meet the 'in conjunction with' requirement.

I therefore conclude that the issue of scale is a further factor to be considered when assessing applications for uses that must be used in 'in conjunction with' another use.[39]

1. Turning then to this matter, I have considered the tests of essential association, ongoing relationship and scale as they apply to the primary, agricultural uses of the vineyard and olive grove and the secondary use of the land as a residential hotel (and its ancillary uses) as follows.

Are the primary uses bona fide agricultural activity and of an appropriate scale?

1. In considering the functional relationship between the primary and secondary uses, the test as set out by DP Gibson requires a consideration of whether the primary uses are not only of an appropriate scale, but are they bona fide land uses and not mere window dressing to allow the secondary use. In this case, the primary uses are the vineyard and olive grove (the agricultural uses).
2. Having regard to my reasons set out in paragraphs 62, I find that the vineyard activity while of sufficient scale to be technically an agricultural activity, is of such a modest scale as to be more of a landscape feature provided for the purposes of establishing a setting for the secondary use. This does not discount this primary use from establishing the type of relationship sought under clause 64.02, however in my view, the small scale and location of the vineyard, on its own would be insufficient to satisfy the test of the scale.
3. I find that the olive grove provides the greatest sense of a genuine agricultural activity and relative scale between the primary and secondary uses. Its location to the fore of the accommodation buildings (subject to some amendments set out below) results in an entry statement to patrons, that coupled with retained native vegetation and the vineyard backdrops, spell out that this is a (at least) a semi- rural landscape with an agricultural land use prevalent on the site.
4. Having regard to the test set in Jinalec that the primary use need not be the dominant use, but should not be overwhelmed by the secondary, I am satisfied that, with some modifications as set out below, this will be the case in this proposal.

Is there an essential (symbiotic) relationship between the primary and secondary uses?

1. It is apparent from the evidence of Mr Wright and Dr Hunter-Payne that it is very unlikely that the primary uses could be commercially viable without the captured market of the secondary use. Thus the secondary use supports the primary use and in doing so supports the zone objectives of maintaining agricultural use of the land and its associated rural landscape.
2. As the Jinalec decision has set out, the relationship is not to be one way. Some form of mutual support is required for the essential association. Thus while the relationship between the secondary and primary uses are one of economic viability, I find that (primarily) the olive grove and the vineyard establish a landscape setting that supports the accommodation uses.
3. I am satisfied that the test of essential association has been established between the primary (agricultural uses) and the secondary (accommodation) uses in a way that meets that limb of the test at Clause 64.02.

Will the uses have a genuine, close and continuing functional relationship?

1. It follows from the above that a genuine and close functional relationship has been established from the consideration of the evidence and details of the proposed development. It would seem that from the evidence of Mr Wright and Dr Hunter-Payne that to maintain the viability of both boutique agricultural productions, the captured market afforded from the accommodation use is necessary.
2. DP Gibson assessment of this limb of the clause 64.02 test calls for permit conditions to provide the necessary certainty of a continuing relationship. It was the submission of Mr Hooper that the applicant is prepared to accept conditions that the accommodation uses will always be in association with agricultural uses (i.e. the primary uses).
3. I am satisfied that this limb of the test under clause 64.02 can be met.

1. Earlier I found that the proposed nature and extent of the primary agricultural uses (predominantly the olive grove) is of a sufficient scale to satisfy the tests underlying clause 64.02. I draw from the reasons of DP Gibson that the test of scale is not one of a simple comparison between areas of land use, as perhaps Mr Ryan's assessment may suggest, it is about the relationship of scale between the primary and secondary uses. This relationship may be one of intensity of use or landscape impacts or some other indicator that could reasonably be expected to come to the attention of a casual observer.
2. In this case, when having regard to applicable policy and the concerns raised by Council, the material matter of scale is whether the secondary use is one that is so large as to detract from the sense of the semi-rural landscape that policy seeks to maintain. Council's concern was expressed in terms of the scale of the buildings required to provide the accommodation and ancillary uses compared to the potential to offend the intent of policy for rural land and the tests of clause 64.02.
3. I share these concerns. Further, I consider it relevant that while this application has the benefit of the transitional period in respect to the conditional requirement of the area, the fact that this application would not meet this requirement after the transitional period lends further weight to the need to carefully consider the matter of the scale of the secondary uses.
4. It is apparent to me that the amended plans did little to reduce the size of the restaurant / spa and lodge buildings from the original application. This is despite the intensity of use of the day spa and restaurant to be limited to a 'modest' number of accommodation guests. I also have concern over the extent of lounge / conference facilities. I do not accept the evidence of Mr Ryan that it is necessary to provide up to four separate conference / lounge facilities to accommodate different guest requirements when a dedicated lounge area of some 60 sqm of functional space remains available.[40]
5. Nor do I accept that the number of day spa rooms is an absolute necessity. The servicing of what can reasonably be expected to be only a small percentage of the accommodation patrons with six massage rooms appears excessive. Mr Ryan suggested that the number was required so that patrons could wait in these rooms while awaiting service. This is despite the fact that patrons could wait in their own rooms, use the waiting room area indicated to be included in the spa area or use the adjoining deck area. The number of massage rooms was also suggested as necessary to provide different needs (two having spa baths in the rooms). This would be in addition to the variety of service available from five thermal pools, lap pool and communal thermal pool. I find that the number of massage rooms gives the appearance of an intent for a wider range of clientele than just the accommodation guests.
6. Mr Ryan and Mr Hooper also advanced that the retention of the proposed building areas assists in establishing a spacious ambiance for the facilities. I accept that the applicant is desirous of a providing a high quality facility. The test remains however as to the balance to be struck between the scale of the built forms (the secondary uses) and the scale of the primary uses within the site.
7. Having visited the site, and not withstanding the above concerns, I find that the location of the main building as observed from within the site and from glimpses available from outside its boundary will be filtered by existing and proposed vegetation. It is my belief that this filtering combined with the deep set back of these two buildings is such that its scale will not dominant the relationship with the landscape.
8. While I am not satisfied that the scale of the lodge and restaurant buildings is justified for the number of patrons or service level requirements, I am satisfied that the scale is not one that offends applicable policy objectives and the test of scale under clause 64.02. Therefore, I will not interfere further with the application by requiring modification of these two buildings. I am also satisfied that permit conditions can limit the intensity of the use by the limiting the number of patrons present and utilising the facilities.
9. Having arrived at these conclusions as to the lodge and restaurant building, I am, however, not satisfied that this is so for the proposed studio units. For reasons outlined below, I find that the location of the access road to the studio's and studio units 25 through to 28[41] are unsatisfactory. In addressing these concerns, I consider it necessary to relocate the access tracks. The flow on affect is that studio units 25 through to 28 would need to be moved westward, resulting in a more prominent location in the landscape. This would be an unacceptable outcome.
10. The scale of the studios is sumptuous. The provision of a study and day bunks bed was not readily explained other than to provide a high level of amenity to guests. This seems unusual when it was also put to me that the studios will be pitched at the 'couples' or 'get away' market. I remain unconvinced that the inclusion of a study and day bunks is nothing other than additional accommodation by stealth. Notwithstanding this finding, permit conditions can be used to control patron numbers.
11. The design and mass of these buildings remains a concern. The design provides for a two-storey building with an overall building coverage of 86 sqm (inclusive of decks and carport) per studio. When set together in pairs they will form an obvious building mass akin to five modest sized dwellings. The fact that the buildings are also proposed to be built over undulating landforms, resulting in the need for elevation lends further to the mass of building having a high visibility (from various locations) than the more filtered visibility of the lodge/restaurant buildings. Being located around the perimeter of designated vegetation conservation areas and forming a backdrop to the vineyard/olive grove, the affect will be a disconnection between the various landscape elements that will reduce the semi-rural landscape character upon entry to the site
12. In this respect, I find the evidence of Mr Thorton to be deficient. I accept that the degree of visibility of studio combinations 23/24, 29/30 and 31/32 will be filtered to some degree by existing or proposed vegetation and landforms. However I find that the same cannot be said for the remaining studios. They would be even more prominent given my finding the need to modify the access track to these studios, (set out below), with the resulting need to relocate these units forward of the amended plan locations.
13. Overall, I find that the proposed number and size of the studios results in the presentation of a cluster of built form that has every likelihood of dominating the backdrop of the primary uses and call into question the balanced relationship desired by policy and the tests of clause 64.02. To redress these concerns I find it necessary to remove studio's 27, 28, 29 and 30 from the proposal. In view of these studios being removed, some minor adjustment of the locations of the remaining studios may be acceptable, subject to a balance between the landscape elements being acceptable.

Are the uses and development acceptable to the GWZ Decision guidelines and applicable policy?

1. The decision guidelines of the GWZ set out a range of general, rural land use, environmental, design and siting issues to be considered as appropriate to the nature of the application.[42] I find that these guidelines are similarly reflected and expanded upon in local policy objectives set out for rural land use and commercial and industrial uses in rural areas[43]. There was also some debate as to whether local policy in relation to recreational and residential development in rural areas,[44] which applies to all GWZ land, is relevant. It is clear that this policy is intended to deal with 'consideration of development proposals that include both[45] recreational and residential components'.[46] I do not see that this policy as having great weight in this case. In giving less weight to this policy in this case however, I note that many of its objectives are encompassed within the aforementioned policy for commercial and industrial uses in rural areas, which are relevant. To this end, it makes little difference to this case what weight is given to either, as the matters at issues are captured by both.
2. Setting aside the matters pertaining to environment (as these are dealt with below), the matters of rural land use and design / siting (i.e. landscape) issues have been largely considered in the context of the tests under clause 64.02. It follows from these considerations, that I am satisfied that the proposed development and land uses, subject to the amendment set out in these reasons and further consideration of the environmental issues, meet with the purposes of the GWZ and satisfactorily address the appropriate decision guidelines, i.e.:

The capability of the land to accommodate the proposed use or development.

How the use or development relates to rural land use... natural resource management [and]...tourism.

The need to minimise adverse impacts on the character and appearance of the area ....

The maintenance of agricultural production [or future agricultural use][47]

1. I am also satisfied that policy objectives as appropriate to the commercial land use in rural areas[48] are, subject to the amendments set out in these reasons, appropriately addressed particularly (but not limited) to:
   • The use demonstrates 'a direct link to rural activities or the provision of accommodation, services and facilities linked to the Peninsula's role as an area providing opportunities for outdoor and unstructured recreation'
   • The development demonstrates 'that the proposed use will have no significant negative impact on the landscape character of the area, the amenity of adjoining land owners or on the agricultural use of rural land'.
   • The application 'is not dependent on the development of other residential or commercial activities on the site or in the locality'.
   • Car parking can be 'accommodated on the land' and is sited 'so as to minimise the impact on rural landscape character of the site and surrounding locality'.

1. While the development proposes to utilise existing building footprints, some removal of native vegetation is proposed. The extent of such removal was at issue, particularly in relation to the requirements for fire management and the tension arising with the three step approach of avoid, minimise or offset losses under the Native Vegetation Management Framework (NVMF).[49] The ability to provide adequate water supply and treat and contain wastewater on the site without adverse environmental impacts was also in contention.
2. In considering the applicable planning provisions, it is also evident that the ESO23 requires consideration of environmental objectives and outcomes over and above those already set out or dealt with in these reasons.[50] ESO23 has a particular focus on sand dune stability and erosion issues pertinent to this case. It is to this matter that I will turn to first.

1. It is apparent (from the site inspection) that the proposed layout of the access track and studio units has a number of short comings:
   • The track makes a new opening through vegetation rather than relying on an existing gap;
   • The track cuts through or over a steep topography (located to the east of the nominated locations of studio combinations 25/26 and 27/28).
   • The same portion of track maintains a separation of native vegetation on this dune from the larger body of high quality vegetation that is being retained.
   • Studios 25/26 and 27/28 intrude into the small dune with construction works likely to disturb this area.
2. It is the objectives of ESO23 to 'avoid development on 'land with a ground slope greater than 25 percent' and 'maintain the stability of the...landform...that may become unstable if the top surface is removed in steeper sections'.[51]
3. Having regard to these requirements I find that the proposed access track arrangement and subsequent location of the units 25/26 and 27/28 are unacceptable. The alternative route is to bring this track forward around the steeper sections of the dune. This would result in the studios needing to be relocated. However for reasons I have already outlined, I do not find this to be acceptable and therefore will require their deletion from the proposal.
4. The track alignment should also be altered to utilise the existing (currently gated) gap in the vegetation. The resultant re-alignment of the track to this gap and around the base of the dune will address concerns expressed by Mr Costello in respect to fragmentation and edge affects on the retained and regrowth areas of native vegetation. The re-alignment can result in a continuous belt of vegetation established between the lodge and the access track and will allow the previously isolated area of vegetation on the east of side of studios 25/26 and 27/28 to be incorporated into the high quality vegetation that is being retained.
5. Accordingly, I have set out permit conditions to achieve these changes.

1. It was Mr Costello's submission that the amended proposal presents an improved outcome over the original application. Having regard to what was proposed, I concur. The relocation of the studio units, tennis courts and main car park has reduced the areas of removal of high quality vegetation identified in Mr Kern's ecological assessment. However, having regard to the three step approach of avoid, minimise and off-set[52], I have considered that the proposal can achieve more, through the realignment of the track as outlined above.
2. The other matter raised by Council and DSE was in respect to what additional vegetation clearance would be required to address wildfire management risks set out under local policy.[53] Mr Nicholson gave extensive evidence as to the approach that can be adopted in building design and other fire management measures to meet the requirements set out by the Country Fire Authority,[54] local policy and various building codes and Australian Standards[55] in order to remove the need for additional vegetation removal.
3. I am satisfied that the proposed design and management measures adopted by Mr Nicholson are sufficient to address the alternative design requirements of the CFA. In particular I have had regard to the approach adopted by Mr Nicholson in adopting an extreme fire risk and setting out building design, water supply and vegetation management requirements which I find to be workable solutions to the alternative increased area of vegetation clearance. Accordingly, incorporation of Mr Nicholson's fire management plan requirements into the building design and use of the land negates the need for additional vegetation clearance and addresses the first step of the NVMF to avoid vegetation clearance.
4. Having regard to the overall management of native vegetation under this proposal, I accept the submissions of DSE that the amended proposal can be supported on the basis that there has been genuine attempts to minimise the loss of Very High and High value conservation significance. That some loss is occurring due to the utilisation of the existing building footprints is accepted by DSE in acknowledgement that the proposal seeks to encapsulate the buildings in the landscape. I concur. To move the buildings into a more prominent location to reduce vegetation losses would be adverse to other planning objectives (discussed previously). A balance is to be struck between these landscape outcomes and that of the protection of the native vegetation. I consider that the amended proposal, subject to the further amendments set out in these reasons achieves this balance.

1. A critical component of Mr Nicholson's fire management plan is the security of a water supply. It is Mr Fairbairn's evidence that a reticulated water supply can be provided from a South East Water main located approximately 500m to the south of the subject site.[56] It was his evidence that this water supply, coupled with storage tanks, boost pumps and rainfall harvesting, would satisfy the fire fighting and other water supply demands of the development. Bore water, currently supply the olive irrigation requirements would continue this function, with treated wastewater being used to irrigate the vineyard.
2. The connection to a reticulated water supply will remove, or reduce, the reliance on rainfall harvesting, the latter having been heavily relied upon in the application. In these times of water conservation and concerns over security of water supply, inclusion of rainfall harvesting is to be encouraged, as is the appropriate re-use of treated wastewater. Therefore, while the security of the reticulated supply is preferred, the additional water sources should retained.
3. I am satisfied that there are sufficient available options for adequate water supply to meet the reasonably expected demands, including those for fire fighting purposes. While the location of storage / supply tanks and the like have not been nominated I am of the opinion that such infrastructure can be incorporated acceptably into the development.

1. The volume of wastewater will exceed 5,000 litres per day and as such any proposal to treat and/or dispose of wastewater on site is subject to approval by the Environment Protection Authority (EPA).[57]
2. I concur with Council that the details of the wastewater treatment aspects of the initial application were deficient. However, in accord with the directions of April 2007, further details of the treatment system, including a copy of the draft works approval application to the EPA has been provided by Mr Lawry.
3. The assessment and approval of this treatment system and means of disposal will be subject to processes not under consideration in this matter.[58] Nevertheless, such matters are called into consideration by the various planning controls and policies.[59] It is therefore appropriate to require that the treatment and disposal of wastewater is approved by the relevant authority, in this instance the EPA. Permit conditions have been included for such a requirement.
4. I will make the general observation however, that the proposed scheme of treatment is one that has merit, in that the wastewater will receive primary and secondary treatment with final polishing through a wetland system to reduce nutrient levels. Additional storage in ponds / water features will also assist in improving water quality. Re-use as irrigation water for the vineyard is an appropriate use, subject to satisfactory compliance with environmental management requirements, as would be the extension to the olive groves if required to 'rest' the vines area.
5. The system design aims to provide a high level of treatment to reduce nutrient loads to the underlying groundwater system. Consideration of whether the system will achieve these aims and others potential impacts arising from salt loads and the like will form part of the review by the EPA. In the event that the EPA is not satisfied as to environmental outcomes of the system, then the proposal will not be able to proceed.

1. It follows from the above that a permit should issue. In preparing the conditions for permit, I have had regard to the matters set out in my reasons and those matters raised by the parties in the course of the hearing.
2. I direct that the Responsible Authority issue a permit in accord with these orders.

[1] Prepared by Michael O'Sullivan & Associates Pty Ltd, No's 1.06 to 6.06.

[2] The planning officer's report indicates an area of 15.22 hectares. The land title and Mr Ryan's report indicate an area of 14.87 (approx) hectares. I have relied on the title information in this instance.

[3] The cottages accommodate up to 10 guests and eight guests can be accommodated in the remaining B&B rooms.

[4] This includes the restaurant's second floor area.

[5] Plans indicate the alucabond panels to be coloured 'sunrise silver'.

[7] A double bed being indicated on the plans.

[8] The studio floor area lower floor area is 49 sqm plus a carport of 21 sqm and deck f 16 sqm. The upper floor (day room/study) of the studio is an additional 16 sqm of floor area.

[9] Plans indicate a 'malay grey' colour (Dulux PG2*C6) for the compressed sheets.

[10] Mr Hooper conceded to a request that there be no lighting of the tennis courts. Permit conditions require the amendment of the plans to remove the offending lights.

[11] Clause 35.04 of the Mornington Peninsula Planning Scheme.

[12] No works were proposed by the applicant, however a condition of the permit will be to seal the surface of the existing front entrance. These works do not materially change the nature of the application or permit requirements.

[14] Refer to definition of crop raising under land use terms at Clause 74.

[15] Under Clause 74, rural industry included land used to...handle, treat, process, or pack agricultural produce.

[16] A section 2 use under clause 35.04-1.

[17] Amendment VC43 was dated 31 October 2006 and applied to all Victorian Planning Schemes.

[21] Clauses 52.06, 52.17 and 57 respectively.

[23] Clauses 12.02, 12.07, 15.01, 15.05, 15.07, 15.09, 17.04, 17.05 and 18.09.

[24] Found at Clause 21.02, 21.03 and 21.09.

[25] Found respectively at Clauses 22.06, 22.07, 21.11 and 22.14.

[26] Page 8 of Mr Nicol's written submission.

[27] Mr Wright's cash flow assessment indicated an operating profit of approximately $20,000 in year four of operation, increasing to around $30,000 thereafter (in today's dollar terms) based on $25/bottle and production of 650L/tonne of grapes.

[28] Mr Wright's evidence was that full production would be around 2,600 bottle per year or around 7 bottles of wine per nightly consumption.

[29] Victorian Olive Oil Industry Overview Department of Primary Industries, May 2006.

[32] [2007] VCAT 1238.

[34] Mornington Wine Company v Mornington Peninsula SC & Ors [2006] VCAT 2651

[35] [2007] VCAT 1238 at [46].

[40] Mr Ryan suggested the lounge / foyer area in the lodge building was only approximately 30 sqm. Scaling from the amended plans indicates a foyer / lounge area of approximately 100 sqm, which after allowances for servicing needs etc, could be seen to comfortably provide some 60 sqm of lounge space.

[41] The number of studio units in these reasons follows that set out in Drawing No D024, Sheet 3.06, Revision 5-20 July 2007.

[42] The specific decision guidelines are found at Clause 35.04-6.

[43] Clauses 21.09 and 22.07 respectively.

[49] Referred to under policy at clause 15.09 and under particular provisions of clause 52.17.

[50] ESO15 effectively reinforces landscape values and draws attention to the need for natural resource protection, including native vegetation and water.

[52] As set out in the DSE's NVMF and clause 52.17.

[53] Clause 22.11 Mornington Peninsula Fire Protection Policy. Policy of particular relevance to this case are set out under 22.11-3 (Rural living and rural areas).

[54] Building in a Wildfire Management Overlay Applicant's Kit 2007, Country Fire Authority, June 2007.

[55] Specifically Mr Nicholson referred to Parts 2.3.4 and GP5.1 pf the Building Code of Australia and AS 3959-1999 Construction of buildings in bushfire prone areas.

[56] Refer to letter from South East Water dated 28 August 2007 tendered by Mr Fairbairn during the hearing.

[57] Section 53J(2) of the Environment Protection Act 1970.

[58] They will be considered by the EPA under the auspices of a works approval application by the applicant.

[59] Policy at clauses 15.01, 22.14, 35.04 and 42.01 (Schedule 15).