The decision of the responsible authority in permit application P05/2642 is set aside. A permit is granted in relation to land at 143 Nepean Highway, Dromana. The permit will allow development and use of the land for a Holiday Resort incorporating a winery, a function centre, a restaurant, a residential hotel, a caravan and camping park and a golf driving range (including, the removal of vegetation, access to a road zone, the sale and consumption of liquor and the car parking requirement for the restaurant and function centre) generally in accordance with the endorsed plans and subject to the following conditions:-

1 Before the development starts, plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must show:

(a)

The replanning of clusters 4, 5, 6 and 12 so that caravan and camping sites of clusters 5 and 6 are located away from the crest of the ridge;

(b)

Removal of clusters 1;

(c)

Retention of any trees no longer required to be removed as a consequence of the deletion of cluster 1 and the replanning of clusters 4, 5, 6 and 12;

(d)

Setback distances of all buildings to road frontages, freeway abuttals and other boundaries.

(e)

A 30 metre buffer from riparian vegetation on each side of Dunns and Bald Hill Creek, the relocation of any proposed caravan and camping sites within this buffer, designation of any pedestrian pathways in the buffer zone and the fencing of the riparian vegetation areas to manage pedestrian access.

(f)

An accurate site survey, with contours shown at 0.5 metre intervals relative to the Australian Height Datum.

(g)

Detailed plans of the function centre, restaurant, cellar door, administration/reception area, residential hotel, clubhouse and amenity blocks, which must include:

(i)

four elevations of each building;

(ii)

building heights dimensioned on all plans and measured from natural ground level;

(iii)

details of all external colours and finishes with swatches provided;

(iv)

cross sections through each building with natural ground level shown and maximum building heights dimensioned; and

(v)

finished floor levels, roof levels, parapet levels and ground levels for all buildings shown relative to the Australian Height Datum.

(h)

Details of the car parking area(s) for the function centre, restaurant, residential hotel and cellar door, showing the layout, numbers and proposed surface of all parking bays, access lanes and loading facilities.

(i)

Detailed plans for the golf driving range, including:

(i)

earthworks;

(ii)

vegetation removal;

(iii)

the layout of the facilities; and

(iv)

details of the carparking area(s) for the golf driving range, showing the layout, numbers and proposed surface of all parking bays, access lanes and loading facilities.

(j)

Details of any significant earthworks proposed within the land, showing clearly the existing natural ground level and all proposed finished levels.

(k)

Details of the earthworks, landscaping and buffers proposed adjacent to the Dromana drive-in and the Freeway. Any proposed mounding adjacent to the Mornington Freeway must avoid the exit points of Dunns Creek.

(l)

The staging of the development generally in accordance with the staging plan tabled at the hearing of Victorian Civil And Administrative Tribunal application P1025/2006;

(m)

Relocation or removal of any of the proposed uses and buildings as is considered appropriate as a consequence of further archaeological investigation in accordance with condition 3 to the satisfaction of Aboriginal Affairs Victoria and the Responsible Authority.

(n)

A notation that only the caravan and camping sites occupying the northern half of Clusters 10 and 11 can be use for cabins and permanent caravan sites, and a commensurate reduction in the number of cabins and permanent caravan sites occupying Clusters 10 and 11;

(o)

A schedule of the number of cabins and permanent caravan sites and other caravan and camping sites in each cluster;

2 The layout of the land, the size and type of the proposed buildings and works, including the materials of construction, on the endorsed plan must not be altered or modified without the consent of the Responsible Authority.

3 Before the commencement of development, a full site assessment of the Aboriginal cultural heritage values on the subject land, including detailed archaeological investigation and subsurface testing shall be carried out to the satisfaction of Aboriginal Affairs Victoria and the Responsible Authority and generally in accordance with the recommendations in section 7.1 of the Heritage Insight report dated November 2005 which includes:

(a)

Detailed archaeological investigation, including sub-surface testing.

(b)

Consultation with Bunurong Land Council Aboriginal Corporation and the Victorian Boonerwrung Elders Land Council Aboriginal Corporation to discuss the methodology for investigating the areas of potential sensitivity for buried indigenous cultural material.

(c)

An application to AAV for an excavation permit to undertake the sub-surface testing investigations.

(d)

A report detailing the results of the testing investigations.

(e)

A meeting with the two indigenous corporations mentioned above to discuss the results and the development of a comprehensive management plan for indigenous cultural heritage values on the site.

4 After completion of the full site assessment of Aboriginal cultural heritage values and before the commencement of development, a comprehensive management plan for protection and conservation of Aboriginal cultural heritage values on the subject land shall be prepared to the satisfaction of Aboriginal Affairs Victoria and the Responsible Authority generally in accordance with the management recommendations in section 7.1 of the Heritage Insight report dated November 2005.

5 Before the commencement of development, detailed archaeological investigation and subsurface testing of the non-indigenous archaeological sites shall be carried out to the satisfaction of the Responsible Authority generally in accordance with the recommendations in section 7.2 of the Heritage Insight report dated November 2005.

6 Detailed landscaping plans for the site generally in accord with the plans of John Patrick Pty Ltd September 2006 must be submitted to and approved by the Responsible Authority. When approved, the plans will form part of the permit. The landscape plan for the development must include:

(a)

A survey of all existing vegetation and natural features;

(b)

The area(s) set aside for landscaping;

(c)

The removal of all pine trees from the site;

(d)

Relocation of the proposed bridges over Dunns and Bald Hill Creeks if the location and/or construction of the bridges impacts on existing mature trees;

(e)

A 30 metre buffer from riparian vegetation on each side of Dunns and Bald Hill Creek, designation of pedestrian pathways in the buffer zone and the fencing of the riparian vegetation areas to manage pedestrian access;

(f)

A schedule of all proposed trees, shrubs and groun5d cover, which will include the location and size at maturity of all plants, the botanical names of such plants and the location of all areas to be covered by grass, lawn or other surface material as specified. The plant selection within the "planting" area of the 10m wide pipeline easement located adjacent to the northern boundary is restricted to small shrubs only, growing to a height of not more than 500mm at maturity;

(g)

Species being indigenous to the area;

(h)

Provision of minimum 12 metre planted buffer area on eastern boundary;

(i)

The location structure and materials of proposed walking tracks;

(j)

The location, structure and materials of proposed fencing;

(k)

The proposed staging of landscape works in accordance with the endorsed staging plan;

(l)

The proposed methods of providing protection of the trees to be retained, during the initial site works, road/pavement construction and building construction;

(m)

The proposed methods of providing drainage for the landscaping;

7 Before commencement of any building construction or use authorised by this permit, the landscaping works as shown on the endorsed plans must be established and maintained to the satisfaction of the Responsible Authority in accordance with the approved staging of the development, but in any case for a period of not less than 3 years.

8 Before commencement of any building construction or use authorised by this permit the developer must pay to the Responsible Authority a monetary bond of not less than 125% of the actual cost of any uncompleted landscaping works relevant to the associated stage of use and development, to cover the costs of completion and maintenance of works for a period of 5 years from the date of completion of the said works.

9 Upon satisfactory completion of the landscaping works, the landscaping must be maintained, with any dead or diseased plants immediately replaced, to the satisfaction of the Responsible Authority.

10 Before commencement of any of the uses approved by this permit, the developer must construct appropriate fences along the boundaries of the site.

11 Any entrance feature proposed for the development must not be located in a road reserve and must not cause any loss of safe sight distances.

12 Native vegetation offset plans to the satisfaction of the Department of Sustainability and Environment must be submitted to and approved by the responsible authority. When approved the plans will be endorsed and form apart of this permit. The plans must be drawn to scale with dimensions (where appropriate) and three copies must be provided.

The offset plans must show appropriate offsets to the satisfaction of the Department of Sustainability and Environment.

Offset plans must include details of the following:

(a)

means of calculating the offsets

(b)

locations where offsets will be provided

(c)

type of offsets to be provided for each location

(d)

details of revegetation including number of trees, shrubs and other plants; species mix; and density

(e)

means of interim protection for newly established vegetation until established

(f)

methods of permanent protection for the offsets

(g)

persons responsible for implementing and monitoring the offset plans

(h)

time frames for implementing the offset plans

(i)

details of any earthworks, drainage and other works

When approved, the offset plans must be implemented as specified in the offset plans.

13 The offset plans must not be altered without the written consent of the Responsible Authority.

14 Prior to the commencement of the development, a frog survey must be carried out on the land by a suitably qualified person and a report provided to the satisfaction of DSE and the Responsible Authority.

15 Prior to the commencement of any works, a Management Plan must be submitted to the Responsible Authority for its approval. When approved, the plans will be endorsed and will then form part of the permit. The approved plan must be implemented to the satisfaction of the Responsible Authority, Melbourne Water and Vic Roads. The plan must provide for, but not be limited to:

Traffic management during construction

(a)

Provision for traffic management and signage for the duration of the works (having regard to VicRoads' Worksite Traffic Management (Roadworks Signing) Code of Practice);

(b)

The use of suitably trained personnel for traffic management;

(c)

Measures to minimise the detrimental impact to the arterial function of Nepean Highway;

(d)

A requirement that at least 7 days prior to road works commencing, the developer must contact the VicRoads Surveillance Co-ordinator (ph. 9881 8079) to notify when work will commence;

(e)

Measures for the protection of Dunns Creek, Bald Hill Creek and any other drainage lines;

(f)

Measures to control, noise, dust generation and water runoff, including sediment control;

(g)

Measures for protection and conservation of Aboriginal cultural heritage values approved under this permit;

(h)

Security fencing and site access details;

(i)

Hours of operation of all machinery including transportation of any fill to the site;

(j)

Arrangements to ensure that no debris is deposited on any road while vehicles are travelling to and from the site.

(k)

Appropriate arrangements to ensure roads in the locality are not prejudiced or damaged by the movement of construction vehicles to and from the site. Construction vehicles must not access Shergolds Lane.

(l)

Measures to minimise any adverse impact on surrounding property owners.

(m)

Measures to protect retained vegetation including fallen or ground debris that is to be retained for habitat purposes

(n)

Measures for the management of any removed vegetation including its use for habitat, or its disposal;

(o)

Requirements for the reinstatement of any public assets damaged during construction;

Environmental management on completion of development

(p)

A surface water quality monitoring system for a 5 year period after all works on site have ceased and any remedial action required if survey results detect poor water quality discharging from the land compared to inflows to the land;

(q)

Ongoing measures for the protection of Dunns Creek and Bald Hill Creek and maintenance of the associated riparian zones.

(r)

Measures for protection and conservation of Aboriginal cultural heritage values approved under this permit;

(s)

Administrative procedures for daily running of the resort;

(t)

The provision of an on-site caretaker, courtesy bus and car services, security arrangements for access to and surveillance of the site;

(u)

Details of the interpretive displays on winemaking, educational sessions on winemaking and wine tasting sessions to be offered on the subject land.

16 On a three monthly basis after the commencement of construction or at some other interval as approved by the Responsible Authority a qualified engineer must submit a verification statement confirming that construction is proceeding in accordance with those aspects of the Management Plan relating to construction or where non-compliance is occurring the actions to be taken to ensure compliance to the satisfaction of the Responsible Authority.

17 Before the commencement of the development authorised by this permit, the following plans must be submitted to and approved by the Responsible Authority. The plans must be to the satisfaction of VicRoads and the Responsible Authority and, when approved, the plans will be endorsed and then form part of the permit. The plans must comprise a functional layout plan of the access arrangement to the development on Nepean Highway generally in accordance with the functional plan prepared by Ratio Consultants P/L but amended to include but not limited to the following:

(a)

a single access point which must service the development, be appropriately located, must meet sight distance criteria and must take into consideration the location of Shergolds Lane. This access point must be designed to accommodate semi-trailer vehicles.

(b)

a right turn, and a left turn, treatment, which must be designed in accordance with current design standards, and be selected based on the 10 year growth period.

(c)

a driveway within the development, which must provide right and left turn exit lanes, and provide adequate storage length and be free of any conflict including internal roads, access points and parking.

(d)

a splitter island must be provided to separate ingressing and egressing vehicles.

18 Before the commencement of the development authorised by this permit, the following plans must be submitted to and approved by the Responsible Authority. The plans must be to the satisfaction of VicRoads and the Responsible Authority and, when approved, the plans will be endorsed and then form part of the permit. The plans must include:

(a)

A public lighting plan.

(b)

Detailed engineering plans for all roadworks.

(c)

A Road Safety Audit that reviews the detailed engineering plans. The Audit must be prepared by an independent VicRoads pre-qualified road safety auditor in accordance with Austroads - Road Safety Audit (Second Edition, 2002). If the Audit raises any matters that have not been properly addressed in the detailed engineering plans, they must be amended accordingly to the satisfaction of VicRoads. Upon approval of the detailed engineering plans, two additional copies must be forwarded to VicRoads.

19 Before the commencement of the development authorised by this permit, the permit holder must demonstrate to VicRoads' satisfaction that they and their contractors have developed and maintained a:

(a)

Quality Management System.

(b)

Occupational Health and Safety System.

(c)

Environmental Management System.

(d)

Traffic Management System.

20 Before the commencement of any of the uses authorised by this permit, the permit holder must:

(a)

Provide an Unconditional Undertaking generally in the form of Part C of AS 4300 - 1995 (Condition of Contract).

(b)

Provide evidence that the contractor has a public liability insurance policy for at least $10 million, effective for the duration of the works.

(c)

Provide VicRoads with the name, address, business and out-of-hours telephone numbers of the principal roadworks contractor.

21 The permit holder must pay the cost of roadworks, civil works, drainage, service relocations, public lighting, road safety devices, and any other costs that may arise as a result of the proposed development. The permit holder must also reimburse VicRoads for actual cost of road works surveillance.

22 Before the commencement of the development authorised by this permit, the permit holder must provide the following to the satisfaction of Melbourne Water and the Responsible Authority:

(a)

Clarification of the hydrological modelling undertaken for the catchment, which must include an analysis of the control of the culverts under the Mornington Peninsula Freeway on the 100-year ARI flows. The submitted modelling must include existing 100-year ARI flood levels along the waterways and natural drainage lines.

(b)

A survey to the Australian Height Datum which must include cross-sectional information of Dunns Creek, Bald Hill Creek and the natural drainage line which traverses the site.

(c)

A flora and fauna management strategy which details the flora and fauna values of the waterway corridors. The strategy must include detailed measures to protect the flora and fauna values.

23 Prior to the commencement of any works detailed engineering plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will then form part of the permit. The plans must be drawn to scale with dimensions and four copies must be provided. The plans must show:

(a)

all areas of the development drained by means of an underground drainage system designed to retain a 1 in 10 year storm duration on the property. Discharge from the site is to connect to Dunns and Bald Hill Creeks;

(b)

a drainage surcharge route within the development, to discharge stormwater overflow to Dunns and Bald Hill Creeks and to avoid inundation of buildings;

(c)

fully sealed road pavements with kerb and channel agricultural drains installed behind all kerb and channel were necessary;

(d)

Stormwater runoff from the development achieving State Environment Protection Policy (Waters of Victoria) objectives for environmental management of stormwater as set out in the "Urban Stormwater Best Practise Environmental Management Guidelines" (CSIRO, 1999);

(e)

litter/gross pollutant control facilities being incorporated within the drainage system. Measures to be implemented include, but not be limited to the following components or combination thereof:

(i)

drainage entrance treatments;

(ii)

in-line devices;

(iii)

self-cleaning screens;

(iv)

sediment traps;

(v)

infiltration trenches and basins; and

(vi)

filter strips and swale drains.

(f)

Street lighting being provided in the development;

Drainage computations which are required for the drainage system, including consideration of any drainage catchment external to the development that may drain to the drainage system.

24 Before the commencement of any of the uses approved by this permit the permit holder must provide a written statement from a suitably qualified person, to the satisfaction of the Responsible Authority, that the planted grapevines have reached maturity to produce and yield grapes for the production of wine.

25 The restaurant, function centre and hotel must be used in conj unction with the winery to the satisfaction of the responsible authority.

26 No more than 150 patrons may be present at the restaurant and function centre at any one time.

27 Unless with the further consent of the responsible authority the golf driving range and other recreational facilities must only be used by persons staying in the hotel or camping and caravan park and their guests.

28 Unless with the consent of the Responsible Authority the function centre and restaurant must only operate between the hours of 7.00am and 1.00am on the following day, on any day other than Christmas Day and Good Friday.

29 Unless with the consent of the Responsible Authority the cellar door must only operate between the hours of 9.00am and 5.00pm on any day other than Christmas Day and Good Friday.

30 Prior to the occupation of any cabin or permanent caravan site or any other caravan and camping site the owner must enter into an agreement with the occupant or occupants requiring that:

(a)

the cabin or permanent caravan site or any other caravan and camping site must not be occupied for more than 59 consecutive days of occupancy and a total of 90 days in any calendar year by any one occupant;

(b)

the occupant must use the site for recreational or holiday purposes away from their normal place of residence;

the form of the agreement shall be to the satisfaction of the responsible authority.

31 The owner shall ensure that an accurate register is maintained on the subject land of all occupants of the camping and caravan park with details of periods of occupancy and the residential address of occupants. The owner must make the register available to the Responsible Authority upon request.

32 The cabins shall not be used as self contained residences and shall not include one or more of the following: a kitchen sink; bath or shower; closet pan and washbasin.

33 All wine labelled as being made from grapes grown on land must be produced from grapes which are 70% by volume grapes from the land. Wine sold on the land must include wine labelled as being made from grapes grown on land.

34 Unless with the further written consent of the Responsible Authority no wine other than,

(a)

wine that is wine labelled as being made from grapes grown on land, or;

(b)

wine from wineries elsewhere on the Mornington Peninsula, or;

(c)

wine produced elsewhere by the land owner from grapes grown within Victoria;

35 Adequate provision must be made for the storage and collection of garbage, bottles and other solid wastes in bins or receptacles to the satisfaction of the Responsible Authority.

36 All bins and receptacles used for the collection and storage of garbage, bottles and other solid wastes must be kept in an area screened from view to the satisfaction of the Responsible Authority.

37 All bins and receptacles must be maintained in a clean and tidy condition and free from offensive odour.

38 The areas of carparking shown on the endorsed plans must be constructed, maintained and remain accessible at all times to the satisfaction of the Responsible Authority.

39 The amenity of the area must not be detrimentally affected by the use or development, through the:

(a)

Transport of materials, goods or commodities to or from the land.

(b)

Appearance of any buildings, works or materials; emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil.

(c)

Presence of vermin.

40 All electricity and telephone supply lines on the land must be laid underground to the satisfaction of the Responsible Authority.

41 Unless with the consent of the Responsible Authority, no lighting is to be installed to illuminate the golf driving range, the tennis courts, the swimming pool or the village green.

42 All lighting on the land shall be appropriately baffled to minimise light spillage beyond the subject land to the satisfaction of the Responsible Authority.

43 This permit shall expire at any time the winery or agricultural use of the subject land for the purposes of a vineyard ceases.

44 This permit will expire if one of the following applies:

(a)

Development and/or use is not started within two years of the date of this permit.

(b)

The development is not completed within six years of the date of this permit.

The Responsible Authority may extend the above periods if a request is made in writing before the permit expires or within the following three months.

The responsible authority is directed to issue a permit in accordance with this order under the provisions of Section 85(1)(b) of the Planning and Environment Act 1987.

1 The Mornington Peninsula provides for a variety of tourism and leisure interests. In December 2005, Watsons Pty Ltd, on behalf of Mornington Wine Company Pty Ltd, lodged an application for the development of a 48 hectare site for a "holiday retreat" comprising a winery, cellar door sales centre and restaurant, motel and caravan park. These developments are to be in conjunction with grape growing on the site. The Master Plan also includes revegetation and rehabilitation of two waterways and a wetland within the site.

2 In April 2006, the applicant sought a review due to a failure by the Mornington Peninsula Shire Council to make a decision on the application within the prescribed time. Subsequent to this, Council determined that if it were in a position to do so, it would have refused the application[1] on the following grounds:

1 The proposed development and use is inconsistent with State and local planning policy and with objectives of the Green Wedge zone.

2 Approval of the permit application would produce an unacceptable outcome having regard to the purpose and policies relating to the use and development of the Green Wedge.

3 The form and layout of the development is not acceptable and use based on incomplete or preliminary technical assessments relating to the environmental and heritage values of the site.

4 The application is premature as the environmental assessments are incomplete and are not to the requirements of the Department of Sustainability and Environment.

5 The proposed development and use will have an unacceptable impact on the adjacent Dromana Drive-in use and nearby rural properties.

6 The proposed use would not advantage the purpose of the Green Wedge and is inconsistent with policy and would, if allowed, undermine that policy.

3 At the commencement of the hearing we granted a change in name of the applicant, from the Watsons Pty Ltd (the applicant's consultant) to Mornington Wine Company Pty Ltd (MWC Pty Ltd).

4 Amended plans, which had been circulated on 29 August 2006, were allowed as no party objected to their substitution.

5 The parties and the witnesses at the hearing relied on both written and oral submissions and a number of photographs, plans and other documents were tendered to the Tribunal. The Tribunal inspected the subject land and its locality.

A triangular shaped piece of land, approximately 48 hectares in size. It is sandwiched between the Mornington Peninsula Freeway to its north, the Old Nepean Highway to its south, the Dromana Drive-In and Dromana Caravan Park immediately to its West, and Southern Advanced Plant's commercial nursery immediately to its East. Further south, beyond the Old Nepean Highway is a rural residential area. And further to the north, beyond the Freeway, is the Safety Beach Country Club.

The site is just outside and abutting the UGB [Urban Growth Boundary], which runs along its frontage to the Mornington Peninsula Freeway.

7 The proposal combines a number of uses and developments within the site. These comprise:

•

Approximately 5ha of vines (Pinot gris) with a machinery shed and water storage dams[2];

•

Winery / cellar door sales and 150 seat restaurant / function centre;

•

An 80 room hotel adjacent the winery / restaurant centre;

•

A caravan park comprising 472 camping / caravan / on-site cabin sites arranged in 11 circular clusters and 3 linear portions. The caravan park also includes amenity buildings, bbq's and outdoor kitchen / eating facilities, a pool, tennis courts, indoor recreational building and an oval or village green (for use by caravan park occupants);

•

a golf driving range (for use by the caravan park and motel clients)[3];

•

a caretaker's residence in combination with the caravan park reception and local (general) store;

•

an interlinking sealed road network with bridges / culverts over Dunns and Bald Hill Creeks;

•

a stormwater treatment wetland; and

•

landscaping including revegetation with native species and landscape / mounding along the Mornington Peninsula Freeway interface for noise and view controls.

8 The layout of the proposed uses and development are shown in the amended Master Plan documentation of September 2006. Further details of the developments are presented in the applicant's documentation, submitted during the hearing and held on VCAT files.

9 Submissions from all parties and expert planning witnesses set out the applicable policy context for this proposal, which we will not repeat here. It is sufficient to state that our attention was drawn to a range of policies including:

•

State policies relating to metropolitan development (Cl 12), floodplain management (Cl 15.02), conservation of native flora and fauna (Cl 15.09), heritage (Cl 15.11), tourism (Cl 17.04), agriculture (Cl 17.05), water supply, sewerage and drainage (Cl 18.09); and

•

Local policies relating to Aboriginal cultural heritage (Cl 22.05), development on highways, main roads and tourist routes (Cl 22.06), commercial and industrial use of rural land (Cl 22.07) and integrated recreational and residential development in rural areas (Cl 22.08)[4].

10 The subject site is located within the Green Wedge Zone (Schedule 3). Three schedules of the ESO, Schedules 6, 17 and 19 are pertinent to the site[5].

11 Under the Green Wedge Zone, development of the site for a vineyard is a Section 1 use (crop raising). The other proposed uses (caravan park, motel, restaurant and cellar door sales) are discretionary (Section 2) uses. The motel (residential hotel), restaurant and sales (cellar door) uses are conditional. The zoning requires that these uses are:

...in conjunction with agriculture, outdoor recreation facility, rural industry or winery uses.

12 A permit is required for development (building or works) in association with a Section 2 use. Under the requirements of Cl 35.04-4, a permit is also required for earthworks[6], for the golf range building, amenity blocks at camping clusters 10 and 11, and for the caretaker's residence / reception / local store building[7].

13 Ms Brennan's submissions in relation to the zones and overlays provided coverage of the ESO's and their application to this site. It is sufficient to summarise that the purpose of these ESO's is to achieve a range of environmental objectives in line with State and local policy. The upshot of these ESO's, including ESO-6 which encompasses the whole of the site, is that permits are required for the buildings and works under this proposal.

14 The decision guidelines relating to this application under the Green Wedge zone and applicable overlays raise a number of strategic planning, rural land use, environmental, and design matters. Both the applicant and Council relied on these guidelines to present the case for why or why not the land use should be allowed.

15 It is not our intention to recite these guidelines, but will address those that are relevant to our decision.

16 It was common ground, that the key issue for this application was the suitability of the proposed development within the Green Wedge zone. Supplementary to this are the management of native vegetation and waterways as well as visual amenity and landscaping responses to the site's setting.

17 Ms Brennan's submissions largely sought to establish that the proposed scale of development and range of uses are inconsistent with the objectives and intent of the Green Wedge Zone. Conversely, Mr Gobbo sought to stress that the uses were allowable and the development is consistent with the zone and policy objectives. In particular it is the applicant's contention that the proposal provides an opportunity to support tourism in the Peninsula at a number of levels.

18 In evaluating the various submissions and complexity of the matters, the questions we have asked ourselves relate to the substantive matters of this application:

•

Is the proposal an appropriate use of the land within the planning policy context of the Mornington Peninsula?

•

If the use is appropriate, does the proposal respond appropriately to the objectives or requirements of the various decision making guidelines that apply?

Is this proposal an acceptable use of Green Wedge zoned land in the Mornington Peninsula?

19 As has been noted by the Tribunal on numerous occasions, and as required by Clause 65, just because a use is permissible, does not imply that it should happen. Each application is to be assessed on its individual merits against the requirements of State and local planning policy and provisions.

20 Ms Brennan contends that, considered as a whole, the proposed uses do not meet with a variety of policies or provisions, in that:

•

The proposal fails to meet Green Wedge principles, including a connection between the vineyard and commercial uses;

•

The land is currently used for viable agricultural purposes and the proposal seeks to remove a large proportion of land from such use;

•

The location of the uses is not appropriate and will not lead to orderly planning by giving the appearance of linear urban development; and

•

The scale and mix of uses is inappropriate and presents environmental, visual amenity and landscape impacts of concern.

21 After the hearing of this application for review, and before we had given a decision, amendment VC43 was gazetted. The amendment included a number of changes to the Green Wedge zone which are relevant to this application. In particular clause 64.02 Land Used in Conjunction with Another Use, was added to the scheme. Clause 64.02 states:

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.

22 In addition, in section 2 of the Green Wedge zone provisions[8] the conditions applying to the land uses function centre, residential hotel and restaurant were modified by the addition of a new "minimum lot size" condition, ie:

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

23 By order dated 1 November 2006, we gave directions to the parties in relation to the provision of further written submissions in respect of these changes to the planning scheme. This is a matter of considerable relevance to the decision in this application, given that the relationship of the proposed use and development to the zone provisions was always a matter of considerable contention between Council and the applicant.

24 The subject land has an area of greater than 40 hectares therefore the change to the Green Wedge provisions relevant to the proposed land uses does not affect the current proposal. The important change in this application is the introduction of clause 64.02.

25 It will become apparent that we consider it important to the proper interpretation of clause 64.02 to have regard to the zone objectives, in particular:

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

Further, within the zone, restaurant/function centre and residential hotel remain permissible uses provided that they accommodate no more than 150 persons, or 80 persons respectively.

26 In addition it is important to have regard to the overall policy context we have already set out in particular the MSS vision for rural areas in the Peninsula which sets out three objectives in relation to conserving environmental values, supporting agriculture and primary production and maintaining or enhancing landscape, cultural and recreational values[9]. Local policy and provisions also set out objectives for commercial and recreational uses in rural areas[10]. These objectives allow one to form a view as to what may be the nature of the outcomes intended by the test of necessary association. These would be that the associations are one that provide for economic support of primary production and rural land use, provide for desired environmental outcomes and provide for enhancement or maintenance of landscape, cultural and recreational values

The effect of Clause 64.02 Land Used in Conjunction with Another Use

27 It is common ground that C43 introduces the test of "essential association" with Council and the applicant relying on the how this test should be read to support there submission. The question we have asked ourselves is what is the intended purpose of the "essential association" and is there an essential association between the restaurant/function room and residential hotel on one hand and the vineyard, winery and golf driving range on the other? Additionally the test of "a genuine, close and continuing functional relationship" also remains.

28 Here we address first the question of the intended purpose of "essential association". The test of a functional relationship is addressed later in these reasons.

29 Mr Gobbo has relied on the Shorter Oxford Dictionary meanings of essential and association in lieu of an absence of definition in the planning scheme. He submits that a literal interpretation would have unintended consequences, as the relevant uses would need to demonstrate an absolute necessity of association when the zone provisions clearly intend a different outcome.

30 We agree that the requirement for an essential association between uses cannot be interpreted literally. For example it is clear that in an operational sense there is no essential or intrinsic association between a vineyard on one hand and a restaurant on another and yet these are uses that clearly the planning scheme anticipates can and should occur in association[11]. It follows that it is appropriate, in lieu of a literal interpretation to have regard to the intended purpose of the test of "necessary association" in the context of the planning outcomes sought through the Green Wedge zone. This was a similar position adopted by Ms Brennan and Mr Gobbo.

31 Nevertheless there are important, less direct, associations or relationships between the proposed uses in places such as the Mornington Peninsula. While the relationships and the associations required by clause 64.02 must exist on the subject land, it is nevertheless important to remember that this requirement, that the particular uses be in conjunction with each other, is a requirement which derives from the zone provisions and that the relationships and associations between the uses on the subject land also relate to the surrounding region, i.e. the land within the zone.

32 For the purposes of this discussion we will call the permissible uses which are subject to the condition requiring them to be in conjunction with other uses on the land, secondary uses[12]. The uses with which the secondary uses must be in conjunction we will call primary uses[13]. What then is the important relationship[14] which exists between primary and secondary uses in places such as the Mornington Peninsula.

i

The first relationship is essentially aesthetic (a landscape value). The primary use provides the setting, or the ambience which is usually a central element to the economic success of the secondary use. (What good is a winery restaurant if it not set in a vineyard?)

ii

The second relationship is the connection between the secondary use and the economic use of the land. Secondary uses are separate activities which can take advantage of the land's characteristics and supplement the economic return obtained from other uses of the land including primary uses.

iii

The third relationship is the economic connection between the primary and secondary uses on the land. Usually this means that the secondary use facilitates the primary use obtaining a retail rather than wholesale return for some or all of its product.

iv

A fourth relationship is a symbiotic one between the economic returns of the secondary use providing means to achieve environmental outcomes that support the desired aesthetic setting and hence support the secondary uses.

33 It would be rare for these relationships to be limited to relationships within the land. The effects are also regional ie:

i

The aesthetic relationship is regional, the setting which is of importance to the secondary use is usually not limited to the site but to the broader rural or semi rural environment. The drive in the country side to get to the subject land and views of the broader rural landscape may all be important considerations;

ii

A secondary use on a particular parcel of land also contributes to the economy of the region by creating demand for employment, goods and services and by producing economic returns;

iii

Secondary uses on a particular parcel of land can also improve the economic return of primary uses on other nearby land by facilitating the attraction of people into the region who then purchase product from other primary land uses on a retail basis.

iv

Environmental improvements to the land can have flow on benefits to the broader region through improved water quality, reduction in weed movement and provision of wildlife corridors etc.

34 These associations, even the aesthetic association are essentially economic in nature but provide for other non-economic outcomes sought in the objectives of the planning scheme. From the perspective of the land, the relevant primary and secondary land uses are elements of the broader regional economy. The synergistic relationship between these land uses can be regarded as essential in the sense that they result in a land use which produces an appropriate economic return on investment in the land and the provision of funds to achieve other (planning) objectives in relation to the land including the mitigation of environmental degradation and support for tourism and recreational opportunities.

35 We think these essential economic associations exist between the mix of uses proposed on this land, in particular between the primary and secondary uses proposed.

36 The residential hotel is made up of a cluster of small buildings each containing a number of hotel rooms connected to the main building by covered walkways. The main building contains the hotel reception, the restaurant and function centre, and the winery. The main building is set within part of the proposed vineyards and it is sited to enjoy an outlook across the vines to wetlands proposed as part of the environmental improvements to the land. Residents of the hotel have access to the golf driving range, and indeed the other recreational facilities provided as part of the proposed caravan and camping ground. The synergistic combination of land uses possess the essential associations discussed above, ie:

i

The vineyards and the broader landscape and environmental features proposed as part of the development provide the aesthetic setting for the hotel restaurant complex.

ii

The combined secondary uses, the restaurant, the function centre, and the hotel support the economic use of the land itself.

iii

Patrons of the restaurant/function centre and residents of the hotel facilitate the economic success of the vineyard and winery by enabling the retail sale by product. The residents of the hotel can make use the golf driving range.

iv

The returns from the hotel and restaurant uses support the environmental and other land stewardship programs that in turn provide for the aesthetic setting and recreational values.

37 All of these associations between the secondary and primary uses on the land are mirrored in the broader region. The region contributes to the aesthetic setting of the secondary uses on the land. The secondary uses contribute to the regional economy. The people attracted to the land as patrons of the restaurant or residents of the hotel will also enable other produces in the region to sell product by retail or make use of other recreational facilities available within the region such as golf courses.

What of the functional connection between agricultural and commercial uses?

38 At the hearing, prior to VC43, the so called functional nexus which should exist between primary and secondary uses was debated at length. While the parameters of this debate have been changed by VC43 and the introduction of clause 64.02, the cases referred to and much of the argument is still relevant to the consideration of the functional or ancillary relationships. Indeed this earlier debate about whether or not planning schemes intended that primary and secondary uses be ancillary uses raises similar questions to the issue of the literal meaning of essential association[15].

39 Ms Brennan submitted numerous Tribunal decisions and a Supreme Court[16] decision that, by her submission, demonstrated a requirement that the "in conjunction use" (applicable to the secondary uses) needs to demonstrate a functional (as well as ancillary) relationship. In her submissions in respect to VC43, Ms Brennan further asserts that the functional relationship must also be "genuine, close and continuing". We disagree with Ms Brennan's reliance on the Steiner School Decision for the reasons set out below.

40 In the Supreme Court ruling of Neville Boucher & Donna Burnett v Dandenong Ranges Steiner School Inc & Ors, Justice Osborne found that in relation to the question of an ancillary relationship:

23 In my opinion the requirement that proposed uses be conducted in conjunction with each other does not fall to be determined by reference to the notion of ancillary use.

41 In respect to the requirements of a functional nexus, Justice Osborne goes on to find that:

29. Clause 57 does not require the application of the concept of ancillary use. It simply requires the ascertainment of separate uses upon the land which are undertaken in conjunction with each other. Such uses may or may not involve ancillary use. The requirement for a functional nexus between the uses raises the real possibility that one or other use may be ancillary to another use but this question is not determinative of their lawfulness. What is required is separate identifiable uses carried on in conjunction with each other. [Our emphasis added].

42 He concludes his finding in relation to the question of ancillary use by stating at paragraph 33:

33. What is required by cl. 57 is simply that the uses specified be real and identifiable uses and that they operate in conjunction with each other.

43 The Tribunal cases cited to us are of a similar vain, in that agricultural use of the land has to occur at the same time as other uses being proposed, i.e. in conjunction with rather than ancillary to. While some have read these decisions as requiring there to be a functional relationship, we find that the underlying reasoning in these decisions is in line with the findings of Justice Osborne.

44 It is our conclusion that the proposed establishment of the vineyard establishes a real and identifiable agricultural use of the land[17]. It is also clear that the other uses will be in conjunction with the vineyard[18].

45 It follows from Justice Osborne findings that there is no basis to disallow the commercial uses solely on the consideration that there is no functional nexus or ancillary relationship between these uses and the grape growing. All are clearly defined uses and are to occur in conjunction with the agricultural use. However, we should also caution that without an agricultural use of the land, it is also clear from the reading of the provisions and the decision of Justice Osborne, that the restaurant and motel uses would be required to be in conjunction with one of the other required uses outlined in the Section 2 Table of uses at 35.04-1.

46 The same does not apply to the caravan park, being an unconditional Section 2 use (i.e. a primary use).

Will there be a genuine, close and continuing functional relationship between the proposed primary and secondary uses?

47 What is the intended distinction between the essential association required by the first dot point of clause 64.02, and the functional relationship required by the second dot point?

48 It is considered that this aspect of clause 64.02 essentially recognises that the primary and secondary uses of concern may not be intrinsically related at the operational level. Therefore if the uses are to be conducted in conjunction then the mix of uses proposed should be designed and operated so that a functional relationship which might not otherwise exist is achieved.

49 Considerations which might be relevant to the decision about whether or not there is a genuine close and continuing functional relationship might be:

a

The physical association of the various uses on the land;

b

The sharing of land and facilities;

c

The sharing of management and staff, and;

d

The possibility that patrons can either passively, or actively interact with the other elements of the relevant mix of land uses.[19]

50 In the further submissions there was considerable discussion about whether or not there was a functional relationship between the proposed primary and secondary uses. A question occurs to us. If I am a restaurant patron will my experience of the functional relationship between this proposed restaurant and the associated winery and/or the vineyard be any different to that I will experience at Montalto or any of the other restaurants appearing on the responsible authority's table of winery restaurant combinations? It is difficult to perceive of any difference which could be considered significant from a planning scheme perspective.

51 Indeed the hotel reception, the restaurant/function centre and the winery all share the same building within interconnected spaces. The building is set within the vineyard. The building is the hub of the residential hotel. Residents of the hotel will have access to the golf driving range.

52 This seems to us to represent a genuine, close and continuing functional relationship in the context of planning scheme provisions which require land uses which do not share any intrinsic relationship, to be used in conjunction with each other.

The effect of the changes to the section 2 conditions

53 The proposed secondary uses, the restaurant, the function centre, and the residential hotel are all subject to section 2 conditions under the zone provisions which were amended under VC43 to include a minimum lot size provision. In this particular locality all these uses are now prohibited on lots less than 40 hectares. We have already indicated that this change to the conditions does not impact upon the current proposal, as the subject land exceeds 40 hectares. Nevertheless its interesting to consider the impact of this change given the submissions we received about the precedent value of the current proposal.

54 We have already referred to the table provided by the Responsible Authority describing other restaurants associated with wineries and vineyards on the peninsula. It is interesting to note that of the 16 premises described only one had a site area greater than 40 hectares. This new provision will certainly be very effective at preventing Shoreham Road becoming the new Fitzroy Street of Red Hill. Whatever the merits of this provision it is clear that the condition will severely limit the establishment of these uses within the Green Wedge zone on the peninsula with the result that there is almost no prospect that the cumulative impact of buildings and facilities associated with such uses will significantly impact upon the rural landscape.

55 The section 2 conditions also limit the size of the proposed secondary uses. The number of patron attending a restaurant or function centre must not exceed 150 persons. A residential hotel must not exceed 80 bedrooms.

56 It was submitted on behalf of council that we should contrast the size of the vineyard with that of the proposed secondary uses which are the maximum size permitted by the scheme and conclude that the proposed mix and scale of uses is inappropriate in the Green Wedge Zone. We were referred to Vidoni v Mornington Peninsula Shire Council[20] in support of this contention.

57 In our view the planning scheme does not take this approach, the zone provisions require that:

a

secondary uses be used in conjunction with primary uses, and;

b

secondary uses be limited in size, and;

c

the lot containing the uses to be of a specified minimum size;

and does not establish interrelationship between the size of the primary and secondary uses.

58 In this case the vineyards have an area of 5 hectares but are dispersed over a larger area which includes areas set aside for revegetation and associated wet lands etc. How is this to be usefully compared to a similar vineyard on a very much smaller site. The better approach would be to consider the likely impacts of the proposal using established planning considerations such as landscape values.

59 While it is our intention to consider the amenity and environmental impacts of the proposal as a whole, given the above discussion of conjunctive uses, it is appropriate to consider (at a policy level) the caravan park use separately.

60 It was Ms Brennan's contention that the scale and intensity of the caravan park presents an urban like landscape. The basis of this contention appears to have been observations made about the location of numerous caravan parks within the Mornington Peninsula region.

61 It is appropriate to reflect on the fact that the urban location of many of the caravan and camping sites within the Mornington Peninsula (not least the foreshore locations) are perhaps an artefact of having been established some considerable time ago with the urban landscape subsequently evolving around them. In respect to the contention that a caravan park would be one that a person would reasonably expect to be found in an urban environment, we contend that to some people, it may well be the reverse. For some, it may seem odd to find caravan and tent sites along an urban beach frontage or located within a town where noise and unsightly urban development present a less than pleasant amenity.

62 It would be fair to conclude that the applicant is relying on the existing natural landscape as well as extensive re-vegetation to provide for a pleasant and attractive rural like amenity for potential occupants of the park. To present an urban environment would seem to us to be counter intuitive to such an amenity. For reasons discussed in our assessment of the landscape response, we consider that the Council's concern that the park will form a perception of an urban extension into the Green Wedge is unfounded.

Is this an appropriate location for a caravan park?

63 Council contends that non-urban caravan parks or camping ground would reasonably be expected to be co-located with some form of pre-existing attraction (caravan parks not being an attractor in their own right), as anticipated under Cl 22.07. Such a submission overlooks the fact that taken as a whole, the Mornington Peninsula is an attractor in its own right. The MSS highlights repeatedly that the "Peninsula" is a tourist destination. In this respect we accept the submission from the applicant that the location is one that presents a potential gateway site to the many attractions of the "Peninsula".

64 Council also emphasised that it was policy that commercial uses should be located at least five kilometres from residential, business or industrial land[22], where as this site lay adjacent to the UGB, residential and industrial zoned land. However the applicable clause also sets out that a proposal may occur closer than five kilometres if it can be demonstrated "that the proposed development will not generate expectations of linear strip development, particularly along main roads and tourist routes". Our assessment of the management of the site's development in response to this condition is addressed below. It is sufficient here to note that subject to some modifications, we consider that the design response can address this requirement.

Is there a need for a caravan park that supports this location?

65 Various submissions were made as to the need[23] for the caravan park. Ms Brennan's mix of contentions were that existing caravan parks are meeting demand while others are resorting to establishing residential sites to remain viable.

66 Evidence from Mr Ainsaar highlighted that Council's tourism strategy identifies the need to provide for family value / budget style accommodation as well as other higher valued styled accommodation. It was also suggested that much of the existing caravan park stock is aged or seasonally supplied (such as the foreshore areas).

67 Mr Ainsaar noted that across Victoria, there is a declining trend in (urban) caravan parks, due in part to land values and pressures for urban infill. It is reasonable to therefore expect that new caravan parks requiring large parcels of land will turn to rural and green wedge zones (as anticipated by the discretionary use of such land for this purpose). This does not make for automatic approval, but confirms to us that it is unrealistic to contend that new caravan parks can only be in urban areas.

68 We accept that the applicant has sought to address an identified need in the market by seeking to establish a new, more contemporary style of caravan park (with recreational facilities) than may be currently available from existing stock.

69 On balance, we accept at a policy level that the caravan park use is to meet an identifiable need given its gateway location to a range of attractions to the Peninsula and targeting of the family value market. We find no reason from a land use or strategic policy view to exclude the caravan park from the proposal. However, other matters require to be addressed in respect to the scale, amenity and landscape impacts and the manner by which the proposal addresses these aspects.

70 We accept as genuine Council's concern as to the potential for this site to being used for residential purposes, raising the potential for residential development by stealth. Having noted this concern it is important to recognise that the applicant readily accepts permit conditions to control the length of stay and has proposed modifications to on-site cabins (and motel rooms) to ensure that the development can not be misconstrued, let alone be used for residential purposes.

71 We are satisfied that with appropriate permit conditions the risk of permanent residential use can be reduced to the extent that is possible in the current statutory context.

72 Considerable effort was spent by Ms Brennan in attempting to dissuade us from the concept that the proposed winery could be considered to be a winery. Ms Brennan relied on the proposal for the grapes (grown on the land) to be processed off-site, with maturation and bottling occurring on site to contest the notion of a winery.

73 We are satisfied that for wineries of modest scale, contract processing for off-site the crushing, extraction and fermentation of grapes is an accepted practice[24]. The fact is, the proposal anticipates a portion of the manufacturing processing, (maturation and bottling), displaying and retail selling of wine in association with the growing of grape vines. This is consistent with the definition of winery under Cl 74 of the planning scheme.

74 We do not agree that because not all of the manufacturing process occurs on the site it is not a winery.

Should the winery and restaurant be restricted in sales of wine products?

75 Ms Brennan furnished without prejudice permit conditions that would effectively restrict wine sold from the premises to wine primarily produced from grapes grown on the subject land or the Mornington Peninsula. The demonstration of "primarily produced" being a minimum of 80% of grapes grown from the subject land or the Mornington Peninsula.

76 Cited approvals[25] for restaurants in conjunction with a winery were drawn to our attention where permit conditions required wines to be sold on the premises to have a 70% or 80% content of grapes grown on the subject land. Such conditions are in general accord with a Vigneron's licence[26].

77 Mr Gobbo rejects this condition outright, raising issues of how this could be managed and noting that they propose to produce only one wine style from the land (Pinot gris). It was submitted that people attending a (winery) restaurant can be reasonably expected to want to taste or consume a variety of styles.

78 It is not known to us what form of liquor licence or licences the applicant intends to operate under. However it was clear that they envisaged being able to display and sell wines produced from the site, other wines from their vineyards within and outside of the Mornington Peninsula and wines from other local (Peninsula) wineries. It is reasonable to therefore anticipate an application for a less restrictive licence than that of a Vigneron's licence.

79 Referring to the definition of a winery under the planning scheme,[27]we find that the selling of vineyard products (e.g. wine) is an associative use with grape growing and manufacturing of vineyard products. We read "in association with" to be of the same meaning as in connection or combination with the associated uses[28]. That being the case, we read this clause as requiring that the selling of wine need not be limited to that produced on the subject land, or wholly or substantially from grapes grown on the subject land. However, the retailing would need to be in combination with grape growing on the subject land and be limited to wines or vineyard products[29].

80 In respect to the policy of commercial uses in rural areas[30] it is local policy that:

Applications for commercial uses in rural areas should be limited to those which demonstrate a direct link to rural activities or the provision of accommodation, services and facilities linked to the Peninsula's role as an area ... for outdoor and unstructured recreation, associated with the Peninsula's natural and cultural heritage values. [Our emphasis added.]

81 While this policy provides examples of how this may apply, it is not necessarily limited to these uses. The overall policy does not read to us that the link to rural activities must necessarily be tied to the produce from the subject land but rather to the wider values and roles of the Peninsula. As envisaged in the MSS, this role includes being a "wine tourist" destination.

82 Having regard to local policy objectives, the retailing of wine should seek to not only promote wine from a particular vineyard, but also the Mornington Peninsula as a whole. It is also clear that the product on sale should be demonstrably arising from a rural activity occurring within the Peninsula, be it grape growing or the like. The overriding intention of policy is not to have retail of normal products, goods or services that one may expect from a metropolitan shop within rural areas. Thus it would not be appropriate for the cellar door sales to be akin to your local bottle shop.

83 It follows from the above that it is conceivable for a winery to display and have for sale a range of wines produced by the operating vigneron, be it from the subject site or from associated vineyards / wineries under the vigneron's wider operations. Similarly other wine products from the Mornington Peninsula region can be represented. We do not see this as being inconsistent with the intent of the local policy or undermining the strategic direction of the Mornington Peninsula planning scheme.

84 We find therefore that in view of the nature of the proposal before us, the proposed permit condition is too restrictive and should be broadened to encompass wines and grapes produced from the subject land, from other wineries / vineyards owned or operated by the applicant (within Victoria) as well as from the Mornington Peninsula region.

Will the proposal remove land from agricultural production?

85 It was contended that the scale of the non-agricultural developments removes the land from agricultural production. Various witness statements and materials were examined by Ms Brennan as to the productivity and agricultural use options of the subject land and the agricultural and commercial viability of 5ha of grape vines.

86 The substance of Ms Brennan's contention appears to be that the proposal replaces 48ha of agricultural use with a 5ha use, and therefore, agricultural viability of the land (and perhaps the rural area more broadly) will be reduced, contrary to policy.

87 We accept the evidence of Dr Jordan that a 5ha vineyard can be commercially viable (all other factors being equal). We further note that some of the examples of wineries tendered at this hearing were of a similar extent of planting. It is of interest to us also that under the Liquor Control Reform Act 1998, winegrowing (i.e. a vigneron) is recognised where the vineyard is 1.6ha or more.

88 The fact of the matter is that grape growing is an agricultural use. Whether or not more grapes could be grown or more intense management of the site could produce increased grazing productivity is not substantive to our deliberations. While there is no doubt that a portion of the land will be removed from agricultural production by this proposal, agricultural productivity will be maintained by intensive use on portions of the land.

89 Further as noted by Member Cimino[31]:

...the MSS also acknowledges that the value of agricultural areas like this does not only lie in their capacity to generate produce, but also in their attraction to tourists. The MSS also states, at clause 21.02, that vineyards are an increasingly important industry on the Peninsula and that these wineries attract about 150,000 visitors each year to the region.

90 Rural areas also serve a recreational and tourism function widely recognised within the Mornington Peninsula's MSS. Therefore this matter does not fall over on the argument of loss of land from agricultural production, as the proposal seeks to use the land for agriculture, tourism and other uses that are supported within the planning scheme.

91 Having concluded that there is no policy or strategic reason to not allow the proposal, we turn now to whether or not the proposal can meet guidelines requirements for the land use, essentially encapsulated within the guidelines of Cl 22.07[32].

92 The matters of substance in this respect relate to the proposal's responses to visual and landscape amenity, management of native vegetation and waterway / floodplain requirements[33].

93 It is appropriate to reflect on a number of elements in setting out our considerations of the design response. The site lies along two major tourist routes, the one which will present the predominant views into the site arguably being the Mornington Peninsula Freeway. This is due in no small way to the fact that the freeway is raised above the site's boundary and motorists are afforded clear views into it.

94 From our inspection we concur with Mr McGurn that the site's dominant context is the amphitheatre setting formed by the backdrop of surrounding hills. The Freeway vista is locally dominated by the Dromana Drive-in and behind this, industrial and residential developments (predominantly those along the ridge of Arthur's Seat).

95 The site itself is of a rural nature with undulating landform developed from a series of ridges dissected by drainage lines. The height of these ridges affords views across Dromona, and conversely are exposed to external views into the site from various external vantage points.

96 Council submits that the intensity and scale of development is overbearing and will present an urban vista from external view points. Apart from the design responses in respect to the location (and hence number) of caravan clusters (discussed below) we consider this not to be the case.

97 The proposed landscaping of the site is focussed on presenting a rural amenity. We understand the landscaping will build on the remnant vegetation extending through the site by undertaking extensive revegetation, construction of a wetland and enhancement of existing wetland areas. Vegetation buffers are to be provided along all boundaries and the caravan and camping clusters are to be separated visually by plantings of trees and other vegetation.

98 We note that the proposed caravan park has a large number of sites, but the land itself is large and it is instructive to compare the density proposed, approximately 10 sites per hectare compared to that of the nearby Dromana Caravan and Tourist Park, 37 sites per hectare. This almost fourfold difference gives a clear indication of the land available to create a vegetated landscape setting for the proposed caravan park

99 Incorporating the modifications we note below, we accept Mr Czarni's and Patrick's submissions that the tourist route vistas (as well as from other external vantage points) will comprise of a vineyard with buildings dispersed within a native vegetation setting.

100 The proposed form of the site buildings and mix of materials (stone work, colourbond roofing, cladding side walls) reflect an association with rural structures. These elements were not challenged by Ms Brennan.

101 However, Ms Brennan submits that the scale of development is excessive and fails to respond to the site's setting. We agree that having regard to topography and proximity to the freeway that some parts of the proposed caravan park may be unduly prominent when viewed from outside the site. In this regard we consider the following changes are appropriate:

•

Clusters 5 and 6 lie atop a ridge that is visible from the Freeway and Highway. We consider that clusters 4, 5, 6 and 12 should be replanned so that caravan and camping sites of clusters 5 and 6are located away from the crest of the ridge.

•

Cluster 1 is within 100m of the freeway boundary. Its location on the northern slope of a low ridge and proximity to this boundary presents potential noise, landscaping and vista management issues. We consider that this cluster should be removed from the proposal. Once the caravan park is established, and the proposed landscape has matured, the issue of whether caravan and camping sites are appropriate in this location can be reconsidered having regard to landscape and noise amenity considerations.

102 One dwelling is located on the south western boundary (between the site and drive-in). This is the nearest habitable dwelling to the site, with other dwellings being located further to the south on Thurgoods Lane.

103 We accept the expert evidence that lighting can be suitably controlled to minimise stray light emissions. We also consider that as a potential source of noise, the restaurant is set sufficiently deep within the site to not present an appreciably adverse impact to the caravan park or external sensitive receptors.

104 We accept that being set close to the adjoining site's dwelling, restrictions on use of the recreational facilities at the caravan park is required. Similarly, night time use of the golf range (requiring lighting) would be inappropriate given its proximity to the freeway and intention to have the site present a rural setting.

105 We therefore consider restrictions on the recreational facilities to be appropriate, but recognise also that some flexibility is required to address longer daylight hours over the summer period.

106 It was unclear to us whether the applicant intended to include a bund along the freeway boundary to manage noise from the freeway. Regardless, we consider the use of an embankment along this boundary to be unsuitable given observations of natural drainage patterns and the need to maintain such patterns. Ergo to address possible noise conflicts with the Freeway Cluster 1 presents the more susceptible area. For this (and other reasons discussed above) we have deleted Cluster 1 from the proposal.

107 We accept the evidence of Messrs Lane and Miller has largely addressed the concerns raised by DSE in respect to native vegetation and off-set management. We consider that the proposed management of vegetation will improve native vegetation and fauna habitat conditions, particularly in light of our inspection finding that current practices raise a number of issues in this respect.

108 We accept Mr Lane's evidence that fencing should be set within the habitat zone to reduce pedestrian ingress to creeks, but need not exclude walking trails within the riparian vegetation areas.

109 We consider that the development can assist in improving water quality conditions given that cattle will no longer cross the steep creek banks and enter waterways (as observed from our site inspection). Improvement of riparian vegetation and management of buffer land as proposed by the applicant's experts are accepted practices for improving water quality.

110 In respect to drainage, we have already highlighted that existing natural drainage needs to be catered for, particularly the capacity for overbank / flood flows from Bald Hill Ck and the wetland into Dunns Ck. We anticipate that these requirements will be addressed through the appropriate permit conditions.

111 It follows from our reasons that we find that the proposal is acceptable from a policy view point. The proposal seeks to address recreational and tourism objectives of the Green Wedge zone and policy while respecting and responding to the other policy impermatives..

112 With the modifications we have outlined, the design response of the development is acceptable and meets guideline requirements.

113 We therefore find that the proposal (with minor modifications) to be acceptable and a permit should be issued.

[1] The Council reasons were based on the original submission and not the amended application.

[2] We were informed that the vine would be irrigated with recycled water from the local water authority.

[3] In the original application to Council, the golf driving range was considered to be a separate commercial use of the land with a club house. The amended proposal restricts use of the range to patrons of the site's accommodation facilities. In line with the reasons outlined in this decision, and given the aforementioned restriction in use of the range, we consider this land use to be ancillary to the accommodation proposals and hence will consider the golf driving range in this context.

[4] It is generally recognised, and the Tribunal discussed the fact in the hearing that Clause 22.08 responds to residential golf course proposals. It would be reasonable to say that the recreational components of this proposal are an ancillary use to the accommodation and that this policy has little bearing on the matter. We will therefore focussed on the other policy areas.

[5] Ms Brennan also drew our attention to the fact that ESO28 affected such a small portion of the site it was considered by the parties to be inconsequential to this matter. Similarly LSO 03 applies to the views from Nepean Highway and Mornington Freeway and was conceded to not actually apply to the site.

[6] Schedule 3 to the Green Wedge Zone indicates that earth works that change the rate of flow or the discharge point of water across a property boundary requires a permit. The proposed wetland falls within this category of works.

[7] Clause 35.04-4. A permit is required to construct a building which is within 100m of a Road Zone Category 1. The nominated buildings are within 100m of either the Nepean Freeway or Nepean Highway, both being RDZ1 zones.

[8] Clause 35.04-1

[9] Clause 21.09.

[10] Clauses 22.07, 22.08, 35.04 and 57.

[11] This is true for all the land uses relevant to this application which are required to be used in conjunction with each other.

[12] In this case Restaurant, Function Centre and Residential Hotel.

[13] In this case Vineyard, Winery and Golf Driving Range.

[14] Essential association.

[15] See paragraphs 29 & 30.

[16] Neville Boucher & Donna Burnett v Dandenong Ranges Steiner School Inc & Ors, 21 VPR.

[17] With an associated winery. and access to a golf driving range

[18] It was accepted by the applicant (indeed proposed by them) that the commercial uses of the site would not commence until the grape vines are established and producing fruit at a commercial level.

[19] We do not say that these are a completed or even always relevant indicators of a functional relationship.

[20] Vidoni v Mornington Peninsula Shire Council [2005] VCAT 1445.

[21] We include in this consideration of the caravan and camping park, the recreational facilities, caretakers residence, store and reception building and golf driving range. It would be reasonable to expect that such facilities can be part and parcel of a caravan park of this nature. The proponent indicated that these facilities would only be available for people accommodated on the site.

[22] Clause 22.07-3.

[23] It is policy under Cl 22.07-3 that a proposal "....must demonstrate that their proposal addressees a need or gap in the tourist industry and is not dependent on the development of other residential or commercial activities on the site or in the locality."

[24] We also accept that processing in this way provides a number of environmental benefits to the site, in that waste management occurs in an industrial area where such facilities can (arguably) be more readily provided for.

[25] Ruth Mihaly v Mornington Peninsula SC & Ors [2002] VCAT 59 (14 February 2002) and Jen Designs v Mornington Peninsula SC & Stoios [2005] VCAT 2376 (11 November 2005);

[26] Liquor Control Reform Act 1998, Part 2, S.13-1(a) "A vigneron's licence is subject to the condition that wine...produced by the licensee is made from fruit grown in Australia and - (a) in the case of wine, is to the extent of at least 70% made from fruit grown or fermented by the licensee."

[27] Clause 74: Land used to display, and sell by retail, vineyard products, in association with the growing of grape vines and the manufacture of the vineyard products. It may include the preparation and sale of food and drink for consumption on the premises.

[28] Reference to the Australian Macquarie Dictionary (3rd Edition, 2001) defines association to mean "connection or combination". Thus there may be a functional linkage (i.e. in connection with) or there may not (i.e. in combination with).

[29] Presumably this could include fortified wines.

[30] Clause 22.07-3.

[31] Louise Vidoni v Mornington Peninsula Shire Council [2005] VCAT 1445, parag 45.

[32] The matters relating to development along major highways and tourist routes (Cl 22.06) are substantially captured under Cl 22.07 in respect to this application.

[33] Aboriginal and cultural heritage matters (Cl 22.05) were raised by Council as having not been adequately addressed. This was not a contentious issue, with the Applicant accepting of conditions to undertake further assessment of the site.