Environmental Significance Overlay (Schedules 4 and 17)

Clause 35.04 - use and development of a dwelling in Green Wedge Zone[1]

Clause 42.01 - buildings and works in Environmental Significance Overlay

Clauses 11, 12, 14, 16, 21, 22.03[2], 22.11 and 22.14[3] in addition to clauses 57[4] and 65.

The subject land is a vacant 2 hectare parcel of land that forms part of an 11 lot subdivision west of Coolart Road, known as Coolart Rising. The land is currently pastured and fenced, with a partly constructed central gravel driveway, a small dam and a dilapidated hay shed at the front of the site.

Until relatively recently, the land was agglomerated with the remainder of land in the subdivision (totalling some 37 hectares) and used as an active horse farm and homestead known as Basinghall Farm. The original dwelling has been retained on Lot 3.

Through mediation at the Tribunal, a dwelling was recently approved on Lot 7 in conjunction with horse grazing. This dwelling is currently under construction.

Surrounding land is used for a variety of purposes including grazing, horse agistment, poultry farming, cropping and other agricultural pursuits. There is a vineyard diagonally opposite the site across Wonderland Avenue, that fronts onto Coolart road. The nearest poultry farm is at 173 Coolart Road (about 300m and 500m to the nearest sheds).

There are also a considerable number of local rural lifestyle properties, especially further west along Wonderland Avenue, south west along Seaview Avenue and east in Carpenters Lane (within the Low Density Residential Zone).

We jointly inspected the subject land and broader surrounds before reaching a determination.

1. Mr and Mrs Miglioranza purchased the subject land in 2009 as part of the ten-lot Coolart Estate subdivision, with stated aspirations to develop a home whilst engaging in animal husbandry to provide a supplementary family income.
2. The Green Wedge Zone, requires a planning permit for the use and development of land as a dwelling. The use of land for extensive animal husbandry or agriculture is as of right.
3. The responsible authority refused to grant a permit, notwithstanding a favourable officer's recommendation, on grounds of (in summary):
   • Incompatibility with Green Wedge Zone purposes and policies;
   • The proposal for a dwelling would remove productive rural land from agricultural use by facilitating a 'rural lifestyle' property; and
   • The application cannot meet applicable buffer distances in respect of odour from the nearest poultry farm.

1. A number of objectors participated in the hearing, opposing the grant of a permit on grounds that the proposed goat breeding operation would not justify the use of the land for a dwelling. They were particularly concerned with potential conflicts between the use of the land for a dwelling and the continued operations of nearby broiler farms (with existing use rights). They highlighted the potential for odour emissions to impact on residents, leading to increased pressure on the long standing poultry farm enterprises.

1. This application raises the vexed issue of the orderly and proper planning of small lots in the Green Wedge Zone. This challenge affects numerous properties throughout the Mornington Peninsula. It also manifests in other lots within the Coolart Rising subdivision that are increasingly under similar pressures for development and use.[5]
2. Another discrete issue as inferred in Council's grounds of refusal, and the above mentioned objections from those with poultry interests is whether the land is a suitable candidate for residential development given its close proximity to a number of poultry farms that generate odour emissions that could affect residents.
3. The responsible authority and objectors did not have any specific concerns about the proposed development of the land, nor any potential impacts on the values protected by the Environmental Significance Overlay. We agree with this assessment.
4. The key issues for our determination in this application are:
   • is the proposal for a dwelling on this land consistent with planning policy? Integral to this is an assessment whether the proposal represents a legitimate agricultural enterprise that would necessitate or justify a dwelling on the land; and
   • is it appropriate to permit a dwelling on the land given the potential odour impacts that will be generated by nearby poultry farms?

1. The responsible authority and objectors relied on the Tribunal's reasoning in Brown v Mornington Peninsula Shire Council & Ors[6], a decision of Member Mainwaring in respect of adjoining land to the east at 108 Coolart Road. She refused to grant a permit for the use and development of the land as a dwelling in conjunction with breeding of Dexter cattle on two main grounds. The first was that the primary use of the land would be as a dwelling and therefore inappropriate in the Green Wedge Zone - the use would represent a loss of valuable farmland of a cumulative impact. The second reason was that she considered it inadvisable to construct a dwelling so close to an 'older style' broiler farm given potential impacts on future residents. We have had regard to Member Mainwaring's reasoning in arriving at our decision on the application before us.
2. Turning to the evidence on the facts before us, we found Ms Ryan's evidence to be credible and realistic. She clearly has immense personal experience acquired in part through her sizeable goat breeding/farming operation through which she establishes alliances with other, generally smaller, goat breeders where there is mutual benefit to be gained. We note that she had not yet entered any alliance agreement or other arrangement with the applicant but was willing to provide advice to them and would entertain buying goats from them if the enterprise is established.
3. The physical area of the land identified for the breeding/farming enterprise is restricted to 1.2 hectares. Having carefully considered evidence and submissions about the proposed Boer goat breeding/farming enterprise we conclude that, given the demands of the farming activity, the available area is too small to sustain a bone fide, ongoing agricultural enterprise.
4. We accept the applicant's submission that a goat breeding operation of the scale aspired to would reasonably give rise to a need for the operators to live on the land. However, we find the total area and the paddock sizes are too small to enable a sustainable and flexible rotation regime, with a high probability that considerable amounts of supplementary feed would be required after set-up. We consider on the basis of all information provided to us that the review land will be unable carry the stocking rates that are proposed in the land management plan that accompanies the permit application. We consider that overstocking of the land is highly likely in an effort to obtain a return from the enterprise and that the condition of the land is likely to deteriorate as a consequence.
5. There is also a need for one or more alpacas to guard the goats, as considered essential by Ms Ryan to protect from predators. We note that Ms Ryan advised on questioning that in feed use measured as Dry Sheep Equivalents, or DSE, an alpaca is somewhere between a goat and a cow. This would further diminish the number of goats that could be run sustainably on the land. This was not accounted for in the farm plan and it would diminish financial returns from the enterprise.
6. We find that the proposed stocking rates and therefore the likely cost/return figures are, in our opinion, likely to be unachievable on this land. The evidence of Ms Ryan was that the proposed stocking and breeding rates do not represent industry standard in Australia even on more sizeable holdings, noting other additional risks such as worm burden and increased management responsibilities. It is relevant that the applicant is a novice operator although he has farming experience with cattle, and we consider that (with due respect to Mr and Mrs Miglioranza) the financial figures put to us are not adequately researched or substantiated. We note that this final point was teased out during the hearing when it became apparent for example that the stated goat stocking rates could not be sustained on the property, that alpacas would be required to protect the goats from attack by foxes or dogs (which we were informed can cause major impacts in some areas), and that internal parasites can be a main concern with associated costs. We also note that transport costs for example are not factored into the costs of the operation, and that medication and veterinary costs may be underestimated.
7. Even allowing for the fact that many farming enterprises make marginal or negative financial returns, this deficiency has the effect of making it likely that the farming enterprise will become a physical and cost burden over time. This is significant. In our opinion it makes it likely to result in the abandonment or conversion of the fully fledged farming activity to a "hobby farm" activity (i.e. of a confined scale such that it would be ancillary to a dwelling). This type of land occupation is an identified threat in Green Wedge Zone policy.
8. The applicants emphasised their consent to a proposed section 173 agreement requiring the land to be used for agriculture of a scale beyond an ancillary use in connection with the residential use. Although we are aware of such agreements being used from time to time when approving a dwelling in a Green Wedge Zone[7], we have doubts about the effectiveness of such an agreement in respect of the subject land.
9. Importantly, we are not persuaded that the 1.2 hectare land area could readily be converted to a bone fide and sustainable agricultural use of a scale that necessitates a dwelling if the goat breeding/farming operation ceased. In addition, such an agreement would be extremely difficult to enforce in practice once a dwelling was already constructed on the land.

Can the proposal be supported in light of current zoning and planning policy?

1. Many objectives and strategies in the planning scheme seek to preserve land in the Green Wedge Zone for ongoing agricultural use. However, the difficulties facing land use decisions in the review area are identified in the policy basis to Cl 22.03[8] in the planning scheme. This infers the high values of land across the Mornington Peninsula for agriculture, environmental and recreational open space, and for other uses including rural living, and it identifies that this has led to the fragmentation of some rural land into relatively small parcels. In the current case the land was subdivided around 90 years ago, despite it being used as a consolidated farming parcel until recently.
2. The policy basis for Clause 22.03 in part states the following, which is a serious issue on the Mornington Peninsula:

Land fragmentation is a key threat to continued agricultural use, inhibiting the ability to utilise economically efficient and sustainable farm practices. Fragmentation also increases the population density in rural areas, which often imposes constraints on farming operations due to concerns about the use of farm equipment, the use of fertilisers and the like and the introduction of dogs. In addition, the division of rural land holdings raises expectations of further residential encroachment, potentially increasing rural land prices and increasing pressures for further residential and rural residential sprawl - leading to further land fragmentation.

This cycle of fragmentation can only be broken by planning controls that stabilise both the development of housing in rural areas and subdivision expectations, combined with practical support for the sustainable management of land as farmland. In this context, excisions from rural properties should be seen as appropriate only in exceptional circumstances, linked to the expectations of long term farm owners, and provided they do not detract from the sustainable use of the land for farming or compromise environmental or landscape values associated with the land.

1. Clearly, the GWZ is not a residential zone, although there is scope to permit a dwelling if it otherwise supports the objectives of the zone and would be appropriate in its setting. As noted by the Tribunal in Brown's case, "the separate ownership of each lot however does not of itself carry a right to construct a dwelling". The same principle applies in the facts before us.
2. Mr Proctor emphasised that "it is not necessary for each individual lot or title to be a viable farming unit in its own right before it needs to be protected from conversion to residential or rural lifestyle use". A useful starting point is the Rural Residential Development Guidelines issued by the Department of Sustainability and Environment in October 2006. It

defines 'rural residential development' as referring 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 on for 'lifestyle' reasons and is unlikely to provide a significant source of household income. Rural residential land is typically also used for non-agricultural home occupations or for large gardens. These lots are larger than typical residential lots, but are usually too small for agricultural use.

Because of its primarily residential function, rural residential development requires access to most of the normal services and infrastructure provided in urban settlements. Typically it also generates urban residential amenity expectations.

1. It is clear to us that the subject land and, by extension, the Tribunal in this review is in a 'no-win' position. The area has a long history of questionable planning decisions that has lead to the current situation. The creation of small crown allotments is an existing condition, although separate titles were only recently issued. On one view, it could be said that 'the horse has bolted' in that the cumulative impact of past land use planning decisions (i.e. subdivision and permission for dwellings) makes the current policy vision for Green Wedge Zones challenging to achieve in reality.
2. However, regardless of past planning decisions and their impacts on the matters identified in the above quotes, including in the vicinity of the review land, the Tribunal must consider the current matter from first principles by turning to the objectives and provisions of the Green Wedge Zone. To do otherwise would be to disregard the very purpose of land use zoning.
3. Putting aside lot boundaries, the land is of a quality that can be regarded as productive agricultural land. However, the 2ha size of the recently generated lots means that they are seriously challenged in terms of providing genuine opportunities for sustainable agricultural production.
4. Also, these lots (including the subject land) have attracted high purchase prices that would almost certainly make them unattractive for purely agricultural use and make consolidation very unlikely. In this context and given the attributes of the broader setting, there is clear pressure for land to be converted towards rural residential 'lifestyle' properties and/or hobby farms.
5. On balance, we find that the proposal is substantially for a rural living proposal which is not supported by the current zoning of the land and relevant planning policy.
6. The question is whether we should allow a dwelling, since it may be the highest and best use of the land accepting existing conditions, or attempt to uphold the strategic vision for this area by refusing to grant permission for rural lifestyle properties. This is a difficult decision and we accept that is has personal consequences for the applicant.
7. Ultimately, we favour the latter approach. We adopt the observation of Member Martin in Bowden v Mornington Peninsula Shire Council & Ors[9] that "the risk. . . is that the GWZ objectives will be emasculated if in practice they are either ignored or paid lip service to".
8. This further raises the potential for our current decision to act as a precedent. The approval of this application would inevitably lead to increased pressure for the use and development of remaining lots in the subdivision for a dwelling (if not more broadly)[10] and would potentially extend the rural residential enclave further east.
9. Following from this decision, we would strongly encourage the council to revisit the strategic thinking for this area to identify whether the current zoning is still appropriate. This is a decision that needs to take into account a far broader range of factors and impacts than we have been exposed to in this case, rather than taking a site-by-site approach to applications such as this. It is not the role of the Tribunal perform this role, but rather to interpret and apply current policy.

Suitability of the land for a dwelling given proximity to broiler farms - potential odour impacts

1. We understand the objectors' concerns about potential impacts on nearby broiler farms to arise from the existing pattern of residential development, combined with a concern that an increased residential population may stifle or constrain commercial operations. We acknowledge from the outset the importance of ensuring some protection for these poultry farms which enjoy existing use rights (even though they could not expand by virtue of restrictions in the Broiler Code). It appears that the review site alone is not the main issue of concern to the broiler interests but the notion of 'death by a thousand cuts'.
2. From our perspective, the siting and characteristics of this land are highly relevant to determining the acceptability of the proposal. Importantly, we accept a key finding of Dr Bellair, that the subject land falls just outside the buffer derived from the revised Broiler Code (adopting his calculation pertaining to the stand-alone shed).
3. Dr Bellair proposed that the most reliable information to predict odour impacts is the record of existing complaints. We accept that these appear to be limited in the immediate vicinity of the subject land in terms of the overall number of recent complaints. We see some persuasion in Dr Bellair's evidence that the favourable topography of the land and the direction of prevailing winds make it likely that dwellings in Carpenters Lane would be affected by odours before they would affect the subject land (and hence, more likely to lead to the problem being minimised or resolved before it affects the subject land to the same extent).
4. Beyond this, we are of the view that there is still an important role for odour modelling even where real life complaints data is available and where it is not technically required by the Broiler Code. There is scope for the two to be assessed in a layered approach. Whilst there is some uncertainty about odour modelling projections, we are conscious that complaints data could never 'tell the full story' about odour experiences in an area given human nature, which presents a variability in tolerance levels and/or activism.
5. At present, the rural context in the local area can be expected to generate a range of impacts from agricultural operations. Having considered the evidence and submissions (including the earlier odour modelling in respect of the subdivision and its alleged deficiencies), we consider it unlikely that odour emissions would be of a strength or regularity such as to make the use of the review land for a dwelling inappropriate.
6. The more pressing question is whether allowing a dwelling on the subject land would have the potential (in reverse) to confine the operations of the broiler farms by intruding into any odour buffer. This is alluded to in clause 16.02-1 insofar as it provides a strategy to:

Maintain an adequate buffer distance between rural residential development and intensive animal husbandry.

1. This is the primary concern of the broiler farming interests, as non-farming interests have been permitted to encroach into 'their space' over time. We acknowledge that this impact is likely to be a cumulative one, relevant to the future development of the remaining vacant lots in the Coolart Rising subdivision including those closer to the nearest poultry farm, and of other lots in the wider local area.
2. In these circumstances, we would not have been inclined to refuse to grant a permit for the use and development of the land as a dwelling due to odour impacts alone.

1. It is widely acknowledged that the Tribunal's role is to interpret and apply the planning scheme as its stands. The council retains the role as a planning authority to identify which zoning and policy provisions should apply to land. It has recently prepared an interim policy relating to Rural Dwellings as a precursor to the Green Wedge Management Plan being completed.
2. Fundamentally, we agree with the responsible authority's submission that it would be inappropriate for the Tribunal to make decisions with a view to overcoming the applicant's personal difficulties arising from a decision to purchase a small property in the Green Wedge Zone at a 'residential' rather than 'agricultural' price. At the very least, this would represent ad hoc decision making.
3. Given the zoning of the land and planning policy that currently applies, we find ourselves unable to support this proposal. We are not satisfied that the primary sustained use of the land will be for agriculture, or that the farming proposal is realistic and sustainable for this land so as to justify the use and development of a dwelling.
4. At the same time, we accept that there is a real dilemma for responsible authorities and land owners so long as vacant small lots exist in the Green Wedge Zone. This has come about through a long history of planning decisions of debatable merit. There may be some persuasiveness in entertaining a rural living or similar zoning for this land (and the broader subdivision) given the existing lot pattern and surrounding land use. Ultimately, we encourage the council to consider the future of this area more globally, in a strategic way.

[1] A restrictive covenant applies to the land but the proposal is consistent with it.

[2] Dwelling Density, Excisions and Realignments in Rural Areas.

[5] We are generally aware of applications for the use and development of land for a dwelling in conjunction with agriculture at 102 and 104 Coolart Road, applications for review to the Tribunal Nos. P502/2011 & P500/2011 respectively.

[6] [2010] VCAT 92.

[7] Both in this municipality and others.

[8] Cl 22.03: Dwelling Density, Excisions and Realignments in Rural Areas.

[9] [2009] VCAT 1973.

[10] Even though each would need to be justified on its merits.