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[2003] VCAT 718
appellant. The Council's decision on Permit Application No. P211/02 was set aside. A permit was directed to issue for subdivision into two lots in accordance with the endorsed plan, subject to six conditions...
The Tribunal allowed a review of Casey Council's refusal and granted a permit to divide a rural property into two lots of about 2.8 hectares each. Although the planning scheme generally specified a 4-hectare minimum, it allowed smaller lots in certain circumstances, which the Tribunal found applied. The Tribunal considered the site's limited agricultural prospects, surrounding land uses, subdivision pattern, and significant vegetation. It concluded that the subdivision would not detract from sustainable land use and would preserve environmental and landscape values. The permit was subject to conditions.
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In Nilsson, Noel & Holmes v Casey CC [2003] VCAT 718, Nilsson, Noel & Holmes (Surveyors) Pty Ltd applied to review the City of Casey's refusal to grant a permit for a two-lot subdivision at 12-14 Homewood Road, Cranbourne South. The review was brought under section 77 of the (Vic) [1]. The Tribunal, constituted by Vicki Davies, Member, heard the matter on 28 May 2003 and made its order on 18 June 2003.
1 cited instrument linked from this judgment.
The site was Lot 12 on Plan of Subdivision 013051. It measured 5.63 hectares, with frontage of 140.82 metres and an average depth of 399.62 metres [2]. It was relatively flat, contained an existing dwelling near Homewood Road, and had dense significant vegetation in its southern section [3]. The rural use was limited to breeding rare native birds near the dwelling and grazing six donkeys [3]. Nearby land had a mix of rural residential uses and rural activities, including cattle grazing, horticulture, hobby farming, horse training and poultry raising [4].
The proposal was to divide the property into two approximately equal lots of 2.8 hectares. The rear lot would be battle-axe shaped and have a 10-metre accessway along the western boundary. The existing dwelling would remain on Lot 1 [5].
The site was in the Rural Zone, Schedule 2, and was also affected by Environmental Significance Overlay Schedule 4, which applied to the Cranbourne South Conservation Area [6, 9]. The Rural Zone Schedule specified a minimum lot size of 4 hectares, but the Scheme allowed smaller lots in specified circumstances [7]. The Council refused the application on grounds including unplanned rural-residential expansion, undermining minimum lot sizes, failure to comply with local policy, possible precedent effects and inconsistency with Melbourne 2030 [29].
The Tribunal set aside the Council's refusal and directed that a permit issue for the two-lot subdivision shown on the endorsed plan [order, 66]. The permit conditions addressed the subdivision layout, service agreements, easements, drainage, vehicle access and expiry [order]. The decision did not authorise a future dwelling automatically: the Member observed that a permit would be required for development of a new dwelling on proposed Lot 2, and that any building-envelope question could be assessed at that time [64].
The Tribunal considered the planning scheme's provisions together rather than treating the 4-hectare minimum as an absolute prohibition. Clause 35.01-4 specified a minimum lot size of 4 hectares but permitted a smaller-lot permit in certain circumstances. Those circumstances included creating a lot for an existing dwelling, creating only one additional lot without a dwelling, and ensuring that each lot was at least 0.4 hectares [7]. The Tribunal found those circumstances applied: the existing dwelling was to remain on Lot 1, only one additional lot without a dwelling was proposed, and both lots would be about 2.8 hectares [41].
That did not end the assessment. The decision also had to account for the Rural Zone purpose, its decision guidelines, Clause 65 subdivision considerations, the ESO4 objectives and guidelines, and local planning policies [12-16, 22-24]. The Tribunal identified a policy direction against subdivision of rural land, particularly where it could fragment land needed for sustainable farming. It also recognised that the land lay in “The Farm”, an area described as having high-quality, versatile agricultural soils and threatened by incremental subdivision and non-horticultural uses [18-20].
The Member nevertheless accepted that the subject site was not within the “core” area identified for high-quality agriculture. It was in a mixed-activity area, with environmental significance, varied rural uses and an alternative-lifestyle character [39-40]. The land was assessed in 1988 as Class 3: of limited versatility, but good for dairying and grazing, sometimes suitable for orchards and extensive cropping, and unsuitable for intensive vegetable growing. A 1997 report identified 20-30 hectares as the minimum area for intensive farming and 40 hectares for grazing [37]. Against those benchmarks, this 5.63-hectare site was already below the area identified as necessary for those sustainable agricultural uses. The owners said it had not been used for agriculture since 1949 [38].
Environmental and landscape considerations were central to the outcome. The Council's representative conceded that the significant remnant vegetation would not be compromised by the subdivision [34]. The Tribunal accepted that there were house sites on cleared parts of the proposed rear lot, leaving space for bird breeding and grazing [35]. It also concluded that the proposal was unlikely to diminish the site's landscape values [35]. The Member's reasoning was not that agricultural interests did not matter. Rather, on these facts, the limited agricultural prospects of the site and the retention of significant vegetation meant the environmental and landscape benefits carried substantial weight [37-40, 52, 65].
The Tribunal also rejected the suggestion that the proposal would necessarily be out of character with its surroundings. It noted that Homewood Road was not characterised by broad-acre farming, that smaller lots existed nearby, including two one-hectare lots immediately west of the site, and that farming activity of the kind contemplated by the Rural Zone was absent in the immediate vicinity [44-46]. It also considered that a future dwelling on the rear lot would not be visible from the public realm [46].
A further point concerned Clause 22.06's lot-size policy considerations. One consideration asked whether the land had an area at least the zoning-map minimum or more than 8 hectares, whichever was greater. The Tribunal found that consideration was not satisfied, but considered it unclear why the policy referred to 8 hectares and accepted that failure to meet the consideration was not fatal [48-51]. It read the policy alongside its objectives, which included protecting farming, environmental or landscape values for future generations and allowing small-lot excisions where they would not detract from sustainable farming or compromise identified environmental or landscape values [51-52].
Finally, the Tribunal did not require a legal guarantee that the proposed bird-breeding activity would continue. It adopted the reasoning from Application for Review No. P2000/057200 on the difficulty of guaranteeing future rural uses and the risk that making such a guarantee essential could effectively remove the discretion to approve rural subdivisions [58-60]. The Member instead considered whether the subdivision would be acceptable irrespective of whether the proposed activity went ahead. She concluded that it would retain environmental and landscape values and would not affect the rural use of the land [61].
The decision describes the planning controls that applied to this application. Before the Tribunal's order, the Council's refusal stood. The relevant controls included a 4-hectare minimum in the Rural Zone Schedule 2, an express discretion to permit smaller lots in certain circumstances, the Clause 35.01-6 decision guidelines, the ESO4 controls and the local rural-subdivision policy [7-16, 22-24]. The Tribunal also had to consider the State and local policy frameworks, orderly planning and amenity, as well as the matters listed in section 60 of the Planning and Environment Act 1987 (Vic) [12].
After its review, the Tribunal set aside the Council decision and directed the issue of a permit for this particular subdivision [order, 66-67]. The decision demonstrates how the Member applied the controls to the facts before her. In particular, she treated the Schedule's smaller-lot exception as available, assessed the policy considerations against the policy objectives, and weighed rural character, agricultural capacity and environmental values together [41, 48-52, 65].
The judgment should not be read as removing the minimum lot size or establishing that rural subdivisions of this kind should generally be approved. The reasons expressly acknowledge a policy direction against subdivision of rural land and provisions aimed at maintaining sustainable farming [65]. The decision turns on its assessment of this site's agricultural capacity, location in a mixed-activity area, surrounding subdivision pattern, and significant vegetation [37-47]. The text does not identify a later statutory amendment or give a general account of how the law changed after 2003.
At [41], the Tribunal records that the Schedule required each Rural Zone lot to have at least 4 hectares, but that there was “express discretion to approve smaller lots in certain circumstances.” In plain English, the minimum was not an automatic bar if the proposal met the Scheme's stated exception and the decision-maker's wider assessment supported approval.
At [51], the Member accepts that failing to comply with the first lot-size consideration was “not fatal.” This did not mean the consideration could be ignored. The Tribunal acknowledged it was a required consideration, but gave it weight alongside the policy's objectives [48-52]. In practical terms, the Member did not treat a single numerical policy consideration as determinative of the whole application.
At [59], the Member states: “I am satisfied that the subdivision would not detract from the sustainable use of the land.” That conclusion applies the local policy's language to the case. The Tribunal considered the land's existing and potential rural uses, its size, and the way the proposed subdivision interacted with those uses [37-40, 59-61].
At [40], the Member says that “in some cases the protection of the landscape and environmental values will outweigh the benefits of supporting agricultural activities.” This explains the balance applied here, not a general rule that environmental concerns always displace agricultural policy. The finding depended on the site's significant remnant vegetation and limited prospects for sustainable agriculture [37-40, 52].
At [65], the Tribunal acknowledges the “policy direction against the subdivision of rurally zoned land” before concluding that the particular site had little prospect of sustainable rural activity and that subdivision would maintain environmental and landscape attributes. This passage is useful because it shows both sides of the reasoning: the policy constraint remained relevant, but the Member found the site's circumstances justified approval.
The decision is most relevant where a planning scheme contains both a minimum-lot-size rule and an express discretion to approve smaller lots in defined circumstances. Here, the existing dwelling stayed on one lot, there was only one additional lot without a dwelling, and each proposed lot exceeded 0.4 hectares [7, 41]. A different proposal that did not meet those specified circumstances would not match this feature of the case.
It may also be relevant where local rural-subdivision policy sets numerical considerations alongside broader objectives about sustainable farming, environmental protection and landscape values. The Tribunal treated the numerical consideration as important but not automatically decisive, and assessed it with the policy objectives [48-52]. The reasoning is particularly tied to the Member's finding that the land was below the area identified for sustainable farming, was not high-quality intensive agricultural land, and had not been farmed since 1949 according to the owners [37-39].
The environmental context mattered. The significant remnant vegetation was to be retained, and the Council's representative accepted it would not be compromised by the subdivision [34]. The Tribunal also found the proposal unlikely to diminish the landscape values [35]. A proposal involving vegetation removal or harm to identified environmental values would differ on a material point.
The surrounding pattern was also important. The Member noted nearby smaller lots and a mix of rural-residential, hobby-farming and other rural uses, rather than broad-acre farming [44-46]. The conclusion about rural character was made in that local context and should not be detached from it.
The decision also concerns the role of a proposed future rural enterprise. The applicant had no business plan, and the Member assessed the subdivision as acceptable even if the bird-breeding activity did not proceed [55, 61]. That reasoning is relevant where policy does not itself require a legally enforceable guarantee of future use. It does not establish that a future use is irrelevant to every planning assessment.
The judgment identifies and adopts one earlier VCAT decision, Application for Review No. P2000/057200 [53-60]. That matter concerned subdivision of a 5.5-hectare site at 23-25 Homewood Road into two equal lots, with a proposed horticultural operation involving juvenile Eucalypts [53]. The Member considered the sites similar in location, soil type, planning controls and proposed subdivision form, but also noted differences, including the earlier case's proposed extensive tree planting, less remnant vegetation and a business plan [54-57].
Davies accepted and adopted the earlier Member's findings [58]. In particular, she applied its reasoning that the relevant policy question was whether subdivision would detract from sustainable land use, and that the absence of a legal mechanism guaranteeing future agricultural use was not, by itself, a sufficient reason to refuse the subdivision [59-60]. She noted that the argument for approval was less strong on the proposed activity in the present case, but considered the underlying policy principle applicable [59].
The supplied judgment does not identify any later court or tribunal treatment of Nilsson, Noel & Holmes. It therefore does not establish from this text whether later decisions followed, distinguished, or limited it. Any account of subsequent treatment would require later sources not provided here.
The Tribunal said it was confused by the local policy's lot-size considerations and noted that neither party could explain why the policy referred to 8 hectares [50]. The Member offered a possible explanation: the policy might contemplate a small excision from a larger holding so that a substantial lot remained. That was presented as an assumption, not as an authoritative explanation of the policy's drafting [50].
The reasons also leave open how the Tribunal would have assessed a site with stronger agricultural capacity, a proposal that removed significant vegetation, or an area with a different established subdivision pattern. The outcome relied on findings specific to this site: limited prospects for sustainable rural activity, retained vegetation, mixed local uses and nearby smaller lots [37-47, 65].
The future dwelling issue was not resolved as part of the subdivision approval. The Member considered a permit would be required for a dwelling on Lot 2 and left the building-envelope question for that later assessment [62-64]. The permit granted in this proceeding therefore should not be described as itself approving construction of a second dwelling.
The judgment also does not explain the longer-term effect of the decision on later planning schemes, amendments or tribunal decisions. It supplies its own application of the 2003 Casey Planning Scheme and refers to one earlier VCAT decision, but contains no account of later legal developments.
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Medium Neutral Citation [2003] VCAT 718
The order of the Tribunal is that the decision of the Responsible Authority in relation to Permit Application No. P211/02 is set aside.
A permit is granted and directed to be issued under the provisions of Section 85(1)(b) of the Planning and Environment Act 1987 for the land at 12-14 Homewood Road, Cranbourne South which allows:
The subdivision of the land into two lots in accordance with the endorsed plan.
1. The layout of the subdivision as shown on the endorsed plan (being the plan submitted with the application) must not be altered or modified (whether or not to comply with any statute, statutory rule, or Local Law, or for any other reason) without the prior consent of the Responsible Authority.
2. The owner of the land must enter into agreements with the relevant authorities for the provision of water supply, drainage, sewerage facilities, electricity, gas and telecommunication services to each lot shown on the endorsed plan in accordance with the authority's requirements and relevant legislation at the time.
3. All existing and proposed easements and sites for existing or required utility services and roads on the land must be set aside in the plan of subdivision submitted for certification in favour of the relevant authority for which the easement or site is to be created.
4. Each lot must be drained to the satisfaction of the Responsible Authority.
5. Each lot must be provided with vehicular access to the satisfaction of the Responsible Authority.
s the development is not commenced within two years of the date of this permit; or
s the development is not completed within two years from the date of commencement.
The Responsible Authority may extend the periods referred to, if a request is made in writing before the permit expires or within three months afterwards.
The plan of subdivision submitted for certification under the Subdivision Act 1988 must be referred to the relevant authority in accordance with Section 8 of the Act.
Mr Nick Moore, town planner, represented the Responsible Authority.
Mr Stephen Bitmead, consultant planner, appeared for the Applicant for Permit/Applicant for Review.
The written submissions of the parties, together with numerous photographs, policy documents and other material tendered at the hearing, have been retained on the Tribunal's file. An aerial photograph will be available for collection by Mr Bitmead.
1. This is an application brought by the permit applicant under Section 77 of the Planning and Environment Act 1987 to review a decision by the City of Casey (hereafter, "the Council") to refuse to grant a permit (in Application No. P211/02) for the land at 12-14 Homewood Road, Cranbourne South to be subdivided into two lots.
2. The subject site is Lot 12 on Plan of Subdivision 013051, created in June 1951. It is located on the southern side of Homewood Road, commencing just over of 1 km west of Cranbourne-Pearcedale Road. It has a frontage of 140.82m and an average depth of 399.62m, yielding a site area of 5.63 hectares.
3. The site is relatively flat. It currently contains a single dwelling, used for residential purposes, which is located close to Homewood Road. The southern section of the site contains dense significant vegetation. The rural use of the land is limited to the breeding of rare native birds near the dwelling and the grazing of six donkeys.
4. Surrounding land is used for rural residential purposes and rural uses, including cattle grazing, horticulture, hobby farming, horse training and poultry raising.
5. It is proposed to subdivide the site into two equal lots of 2.8 hectares. The proposed rear lot (Lot 2) would be battle axed in shape with a 10m wide accessway along the western boundary. The existing dwelling would be contained within the proposed Lot 1.
6. Under the Casey Planning Scheme the subject site is zoned Rural (Schedule 2).
The purpose of the Rural Zone, stated at Clause 35.01, is:
To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.
To provide for the sustainable use of land for extensive animal husbandry (including dairying and grazing) and crop raising (including horticulture and timber production).
* Protection and creation of an effective rural infrastructure and land resource.
* Improvement of existing agricultural techniques.
* Value adding to agricultural products at source.
* Promotion of economic development compatible with rural activities.
* Development of new sustainable rural enterprises.
To ensure that subdivision promotes effective land management practices and infrastructure provision.
7. Pursuant to Clause 35.01-4 a permit is required to subdivide land in the Rural Zone. Schedule 2 specifies a minimum lot size of 4 hectares. However, a permit may be granted to create smaller lots if certain circumstances apply. They include:
The subdivision is to create a lot for an existing dwelling. Only one additional lot which does not contain a dwelling may be created in the subdivision. Each lot must be at least 0.4 hectares.
8. Clause 35.01-5 requires that an application to subdivide must be accompanied by a report which explains how the proposed subdivision:
* Responds to the decision guidelines for this zone.
* Responds to any additional objectives and performance requirements set out in any relevant local planning policy in this Scheme.
9. The subject site is also affected by an Environmental Significance Overlay (Schedule 4), (hereafter, "ESO4"), which applies to the Cranbourne South Conservation Area. The purpose of the Overlay is:
* To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and Local Planning Policies.
* To identify areas where development of land may be affected by environmental constraints.
* To ensure that development is compatible with identified environmental values.
* To conserve, enhance and extend the ecological values of environmentally sensitive land in Cranbourne South.
* To maintain and enhance the rural character of the area.
11. Pursuant to Clause 42.01-2 a permit is required to subdivide land affected by the Overlay, unless exempt by the Schedule. There is no exemption in this case. The Department of Natural Resources and Environment (hereafter, "DRNE") is a referral authority.
12. Clause 65.01 directs the Responsible Authority, and this Tribunal, to consider certain matters, including the matters set out at Section 60 of the Planning and Environment Act 1987, the State and Local Planning Policy Frameworks, the purpose of the zone, the orderly planning of the area and the effect on the amenity of the area. Also relevant under that clause are the extent and character of native vegetation and the likelihood of its destruction.
13. Clause 65.02 relates exclusively to applications to subdivide land. It directs attention to, inter alia:
* The existing use and possible future development of the land and nearby land.
* The subdivision pattern having regard to the physical characteristics of the land including existing vegetation.
* The area and dimensions of each lot in the subdivision.
* If the land is not sewered and no provision has been made for the land to be sewered, the capacity of the land to treat and retain all sewerage and sullage within the boundaries of each lot.
* Whether, in relation to subdivision plans, native vegetation can be protected through subdivision and siting of open space areas.
14. Pursuant to Clause 66.01 an application for a two lot subdivision does not need to be referred to servicing authorities. However, any permit issued must contain certain conditions - requiring the owner of the land to enter into agreements with the relevant authorities for the provision of physical services; the setting aside of relevant easements; and referral of plans of subdivision submitted for certification under the Subdivision Act 1988 to the relevant authority in accordance with Section 8 of that Act. Clause 66.01 further restricts the required referrals under Section 8 if the Subdivision Act 1988.
15. Particular decision guidelines are also included in the Rural Zone provisions of the Planning Scheme. Clause 35.01-6 provides that before deciding on an application to subdivide land, in addition to the decision guidelines in Clause 65, the responsible authority (and this Tribunal on review) must consider a range of matters, as appropriate. They include:
* The capability of the land to accommodate the proposed use or development, addressing site quality attributes including soil type, soil fertility, soil structure, soil permeability, aspect, contour and drainage patterns.
* How the use or development relates to rural land use, rural diversification and natural resource management.
* The maintenance of farm production and the impact on the rural economy.
* Whether the site is suitable for the use or development and compatibility of the proposal with adjoining and nearby farming and other land uses.
* The farm size and the productive capacity of the site to sustain the rural enterprise and whether the use or development will have an adverse impact on surrounding land uses.
* The impact on the existing and proposed rural infrastructure.
* An assessment of the likely environment impact on the natural physical features and resources of the area and in particular any impact caused by the proposal on soil and water and by the emission of noise, dust and odours.
* The impact of the use or development on flora, fauna and landscape features of the locality.
* The protection and enhancement of the natural environment and the character of the area, including the retention of vegetation and fauna habitat and the need to revegetate land including riparian buffers along waterways, gullies, ridge, ridge lines, property boundaries, discharge and recharge areas.
* The impact on the character and appearance of the area or features of architectural, historic or scientific significance or of natural scenic beauty or importance.
* The impact of the use or development on the existing and surrounding rural uses.
16. Clause 4 of the Schedule 2 to the Environment Significance Overlay contains further decision guidelines. They include:
* The impact of the use or development on any environmentally sensitive area.
* The extent of any vegetation removal proposed.
17. Relevant provisions of State Planning Policy are Clause 15.09 (Conservation of nature, flora and fauna), Clause 16.03 (Rural living and rural residential development), Clause 17.05 (Agriculture) and Clause 19.01 (Subdivision).
18. Council's MSS is at Clause 21. The parties highlighted that the subject site is located in the southern part of the municipality known as "The Farm" which is covered by Clause 21.07_._ This area is recognised as an area of "high quality, versatile agricultural soils" which are "an important economic resource because of their high productive capacity and their proximity to metropolitan markets". It is stated that "The soil should be protected because inappropriate subdivision will cause already small holdings to be further fragmented, thereby undermining the long-term viability". It is noted that "The Farm" is mainly used for agricultural purposes but there are also other rural activities and rural residential purposes. "The Farm" is being threatened by incremental subdivision, rural residential development and non-horticultural uses.
19. At Clause 21.07-2 the objectives relating to "The Farm" include:
* To consolidate urban development within the boundaries of existing rural settlements and planned commercial nodes.
* To retain quality land for intensive agriculture and ensure the viability and prosperity of agricultural activities is not compromised.
* To encourage the innovative use of farming land so that the use does not degrade the land's landscape qualities, reduce its long term availability for agricultural use or lower water quality in Western Port and promote and facilitate the development of farming systems which are environmentally sustainable, as well as being technically and economically robust.
* To ensure the protection and enhancement of remnant native vegetation, the Royal Botanic Gardens, Cranbourne, rural landscapes (particularly along and adjacent to main roads) and creation of wildlife corridors.
* Retain or reinforce existing subdivision controls for farming zones. Discourage repeated excisions that have the potential to reduce the productive capacity of rural properties.
* Allow rural residential subdivision where the criteria in Minister's Direction No. 6 have been satisfied, a holistic approach to land use management is taken and where existing agricultural activities will not be compromised.
* Promote and facilitate the opportunity for value adding within the regional economy.
* Retain or reinforce native vegetation removal controls, especially for areas with significant tracts of remnant vegetation.
21. Clause 21.10 covers Natural and Built Assets. It reinforces the importance of the high quality soils of the rural areas to the south of the municipality. An objective is "To protect Casey's agricultural, landscape, cultural or environmental attributes from inappropriate urban development".
22. Clause 22.06 is a local planning policy on Rural Subdivision. It applies to all land included in a Rural Zone and has the following objectives:
* To promote sustainable farming in rural industries and improve the management of land.
* To conserve rural areas of environmental significance.
* Rural land be protected as a long-term resource so that its farming, environmental or landscape values can be enjoyed by future generations.
* Excisions to create small lots will be allowed only if they do not detract from the sustainable use of farming or they will not compromise any identified environmental, or landscape values associated with the land.
* The smaller lot not contain native vegetation or environmental features which will be significantly affected by anticipated buildings and works.
24. Clause 22.06-4 provides the following decision guidelines relating to subdivision throughout the Rural Zone:
* Whether the land has an area at least the size specified in the zoning map for the land or in excess of 8 hectares, whichever is the greater.
* Whether the smaller lot has an area of 10,000 square metres and is capable of containing a rectangle with a minimum dimension of 35m X 35m.
25. "The Farm: A Strategy for Casey's Non-Urban South" (June 1988) is one of the reference documents for Clause 22.06. A copy of that document was tendered by Mr Bitmead.
26. Lastly, Mr Bitmead highlighted the relevance of Melbourne 2030. Under that strategy the subject site is located outside the Urban Growth Boundary in the Green Wedge area. Relevant objectives include promoting opportunities for agricultural use and preserving rural and scenic landscapes. Residential development is to be limited where it has a detrimental impact on the sustainability of agricultural production and environmental qualities and is isolated in terms of infrastructure.
27. The Application for Permit was lodged on 15 April 2002. In response to a request for further information a detailed consultant's report was supplied. That included information as required by Clause 35.01-5.
28. The application was referred to DNRE. No objection was offered provided any future building envelope was on cleared land.
29. The planning officer's recommendation that the application be refused was adopted by the Council. A Notice of Refusal to Grant a Planning Permit was issued on 12 November 2002, with the following grounds:
1. The subdivision will result in unplanned rural residential expansion, in a piecemeal fashion, at the detriment of genuine agricultural enterprises.
2. The subdivision undermines the minimum lot size requirements for subdivision stipulated in Schedule 2 of the Rural Zone of the Casey Planning Scheme.
3. The subdivision fails to satisfy Local Planning Policy with respect to rural subdivisions.
4. If approved, the application would be likely to create a precedent for other similar subdivisions in the area.
5. The proposal is inconsistent with the released Metropolitan Strategy - Melbourne 2030.
30. The application for review, lodged on 4 December 2002, stated the following grounds:
1. The proposal is consistent with relevant State and local planning policies.
2. The proposal complies with the purpose of the Rural Zone and subdivision requirements as set out therein.
3. The proposed subdivision will not undermine the agriculture quality of the land as the land is not rated as high quality agricultural land as evident by land assessments undertaken by the Department of Agriculture and Council.
4. The proposed subdivision will not impact upon the streetscape or view lines from Homewood Road.
5. The proposed subdivision will not impact upon the land being utilised for rural activity.
31. The applicant was required to advertise the application at the direction of the Registrar. Material on the Tribunal's file indicates that this was completed. No party indicated they wished to be heard in relation to the matter.
32. Mr Moore submitted that the subdivision would create lots for rural residential development which would be contrary to the spirit of the Minister's Direction No. 6.
33. I appreciate that the Minister's Direction No. 6 is referred to in the Council's MSS. However, it relates to Planning Scheme amendments, rather than development applications. In any event, it defines rural residential development as the subdivision of land into lots with areas between 0.4 hectares and 2 hectares. The proposed lots in this case are marginally larger.
34. The extent of any vegetation removal is a relevant consideration pursuant to ESO4. It was conceded by Mr Moore that the significant stand of remnant vegetation on the subject site would not be compromised by the proposed subdivision. To that extent it also accords with an objective at Clause 21.07-2.
35. Mr Bitmead noted the irony that any intensive rural use would require the removal of much of the vegetation. That would be contrary to the objectives noted above. On the other hand, the proposal is unlikely to lead to the landscape values of the site being diminished. I accept Mr Bitmead's submission that there are various house sites available on the cleared portion of the proposed rear lot, leaving sufficient area for bird breeding and grazing purposes.
36. A fundamental issue is whether the proposal would lead to the loss of high quality productive land. Such loss would be contrary to Clause 17.05, the purpose of the Rural Zone and local policies, particularly the MSS provisions relating to "The Farm".
37. On that matter I accept the submission of Mr Bitmead that the proposal will not reduce the productive capacity of the land or compromise its ability to be used for agricultural purposes. As highlighted by Mr Bitmead the land is not rated as high quality agricultural land. This is evidenced by the land assessment undertaken by the Department of Agriculture in 1988 which rated the land as Class 3 land - "of limited versatility but ... very good dairying and grazing land...sometimes suitable for orchards and extensive area cropping but not suitable for intensive uses such as vegetable growing". That assessment was confirmed in a report prepared for the Council in 1997 ("Land Use and Rural Industry Analysis"). It identified the minimum area to maintain intensive farming as 20-30 hectares and 40 hectares as the minimum area to maintain grazing. In those terms the subject site has an area well below the threshold required to support a sustainable agriculture use.
38. According to the current owners of the subject site, who provided information at the hearing, the land has not been used for agricultural purposes since 1949. Apart from some income from their son's breeding of birds there has never been any farm income. The owners work off-site.
39. As highlighted by Mr Bitmead, MSS policies regarding "The Farm" principally relate to high quality soil areas, or "core" farming areas. The subject site is not within the "core". Rather, it is within the mixed activity area identified in the Council's strategy - "The Farm; A Strategy for Casey's Non-Urban South". This area is noted as one with "environmental significance" and "high environmental value". The key objective in the mixed activity area it to "maintain the viability in the variety of agricultural and related activities that occur including broiler farms, greyhound/dog breeding, horse training, ostrich/emu farming etc". The area is also seen as "an alternative lifestyle area". .
40. The principles and actions of the Strategy include those to protect and maintain quality agricultural land, provide allotment sizes which support sustainable land uses, discourage inappropriate and unsustainable rural residential development likely to have a detrimental impact on Western Port Bay and prevent residential and rural residential land from encroaching on existing uses. However, Mr Bitmead submitted that "Alternatively, but of equal importance is the protection and maintenance of the alternate lifestyle character of the area, remnant vegetation and the creation of wildlife corridors". I accept Bitmead's submission that in some cases the protection of the landscape and environmental values will outweigh the benefits of supporting agricultural activities. I also accept his conclusion that the proposal represents such a case. The subject site has significant remnant vegetation which is to be retained and characteristics that are unlikely to support a sustainable agricultural pursuit.
41. The applicable Schedule to Clause 35.01-4 requires each lot in a Rural Zone subdivision to have an area of at least 4 hectares. However, there is express discretion to approve smaller lots in certain circumstances. Those circumstances apply to the proposal. Only one additional lot is proposed. It does not contain a dwelling. Each lot is at least 0.4 hectares. In exercising discretion regard must be had to numerous decision guidelines at Clause 35.01-6.
42. Mr Moore submitted that the proposal is inconsistent with the Clause 35.01-6 decision guidelines. He focussed on some of them. He argued that the proposed subdivision does not promote rural industry and will lessen the site's ability to sustain rural industry. He also submitted that the size of the lots would be inconsistent with the character of the area and the strategic framework for the site.
43. I have already commented on the limited capacity of the subject to sustain rural industry. Mr Moore suggested that consideration should be given to the prospect of the consolidation of lots which would increase the capacity for rural purposes, such as grazing. However, given the small size of the lots and their separate ownership I think it is meaningless to talk of such a prospect.
44. With respect to the character of the area I note that maintenance and enhancement of the rural character is also an Environmental objective sought to be achieved under ESO4. I am not persuaded that the subdivision would be inconsistent with the character and appearance of the area or with the subdivision pattern in the area.
45. On that matter I accept Mr Bitmead's submission that Homewood Road is not characterised by "genuine farming activities, but rather it is used for rural residential purposes with the rural pursuant [sic] appearing to be limited to hobby farming and grazing". There are a number of smaller lots in the vicinity, particularly on the north side of the road. They are as small as 1 and 2 hectares. Indeed, there are two 1 hectare lots immediately to the west of the subject site. As indicated on the subdivision plan and aerial photograph tendered by Mr Bitmead this is not an area of broad acre farming with lots around 40 hectares. Mr Bitmead correctly observed that farming activity as contemplated by the purposes of the Rural Zone is non-existent in the vicinity of the subject site.
46. I also accept Mr Bitmead's submission that there will be limited perception of the subdivision. It is proposed to maintain the existing dwelling and lot frontage to Homewood Road, with the exception of the 10m accessway. Any dwelling eventually developed on Lot 2 would not be visible from the public realm.
47. Mr Moore failed to emphasise that the decision guideline at Clause 35.01-6 he cited does not just refer to the character of the area. Its full wording is "The protection and enhancement of the natural environment and the character of the area, including the retention of vegetation and fauna habitat." Environmental and landscape values are also relevant to Council's local policy regarding subdivision. They are considered further below.
48. Firstly, I note that in this instance the local policy relating to subdivision (Clause 22.06) calls for a consideration of whether the land has an area of at least 4 hectares or in excess of 8 hectares, whichever is the greater. It also calls for a consideration of whether the "smaller lot" has an area of 10,000m2 and can contain a rectangle with minimum dimensions of 35m by 35m.
49. Mr Moore conceded that both lots would exceed the required size in the second guideline. However, he submitted that at 2.8 hectares the lots created "would be smaller than the required land size for an excision lot" pursuant to the first guideline. Mr Moore also argued that there needs to be compliance with both decision guidelines.
50. I admit to some confusion about the stated policy considerations. I assume that the first consideration relates to the land to be subdivided. It is, however, not clear why 8 hectares is required. Neither party could offer an explanation. It may be that if a small excision is to be permitted it is desirable that it be from a lot exceeding the minimum size of lots (4 hectares) so there is still one large lot. In any event, in this case that consideration is not satisfied. Clearly, the second consideration relates to the lots created. That consideration is not strictly applicable as both lots to be created are equal. They do, however, exceed the minimum size.
51. While those matters are required considerations under the policy I accept Mr Bitmead's submission that failure to comply with the first consideration is not fatal. Regard should be had to the policy objectives. The policy calls for the protection of rural land for alternate purposes - "so that its farming, environmental or landscape values can be enjoyed by future generations" (underlining added). The policy also calls for small lot excisions to be allowed "only if they will not detract from sustainable use of land for farming or they will not compromise any identified environmental, or landscape values associated with the land" (underlining added).
52. I am satisfied that the proposal accords with both of those objectives. It would ensure that the environmental and landscape values can be enjoyed in the future. Furthermore, it would not compromise those values. Essentially, I accept Mr Bitmead's submission that the maintenance of the character of rural areas and conservation of areas with environmental significance can outweigh the policy objective to promote sustainable farming.
53. Mr Bitmead referred me to the decision of Member Moles in Application for Review No. P2000/057200. Surprisingly, it was not mentioned by Mr Moore. That decision related to the proposed subdivision into two equal lots of a 5.5 hectare site at 23-25 Homewood Road. The site is on the northern side of the road, in close proximity to the subject site. The subdivision aimed to provide a separate title for the owner's daughter to develop the land for a horticultural operation involving growing juvenile Eucalypts with leaves to be harvested for use in floristry.
54. The circumstances in that case are similar to those before me in a number of respects. The site is within the immediate area, the soil type is similar, the planning controls are the same and the nature of the subdivision is similar. I have read Member Moles' comprehensive reasons for her decision to allow the subdivision. She held that the subdivision would not jeopardise genuine farming activities. Indeed, it would assist in the introduction of a new farming enterprise on land which was under-utilised. She also found that the proposal accorded with the circumstances recognised in Clause 22.06-3 where excisions to create small lots may be allowed. It was also recognised that the soil quality of the land was not of high agricultural value. Weight was given to the fact that the subdivision would facilitate a sustainable agricultural use and the preservation and enhancement of environmental and landscape values
55. There are, however, differences between that case and the proposal before me. The case considered by Member Moles involved subdivision which would facilitate extensive tree planting. However, it is also apparent that 23-25 Homewood Road had more limited remnant vegetation than the subject site and thus less scope for environmental "preservation". Although the Council's representative argued that no integrated land management plan had been developed, Member Moles was persuaded that the tendered business plan indicated that considerable thought had been given to the venture. In contrast, no "business plan" has been tendered to me. Mr Bitmead simply advised that there is no plan at the moment. There is to be a continuation of what is occurring with the bird breeding, albeit at a larger scale.
56. Member Moles also addressed the question of the necessity for a link between the approval of the subdivision and the intended use of the land for agricultural purposes. She noted that the land might be utilised for the growing of Eucalyptus leaves even under its current title configuration. Such a consideration applies equally to the proposal before me.
57. Member Moles also considered the question of how it can be ensured that the agricultural use of the land which the subdivision may assist will proceed. Again, that issue is relevant to my considerations.
58. Member Moles gave detailed consideration to those questions. I adopt her findings.
59. With respect to matter of the "link" Member Moles noted that the policy at Clause 22.06-3 simply requires that the subdivision does "not detract from" sustainable use of the land. She was satisfied that by permitting the subdivision sustainable agricultural workings of the land would not be detrimentally affected, and indeed would be facilitated. The argument in the proposal before me is less strong as a smaller scale venture is proposed. However, the principle applies. I am satisfied that the subdivision would "not detract from" the sustainable use of the land.
60. In relation to the matter of guaranteeing an agricultural future for the land Member Moles stated that she was "at a loss to know how a legal requirement can be imposed satisfactorily". She highlighted the general difficulty in terms of the operation of the Rural Zone throughout Victoria in that the Scheme provision and policies do not recognise this problem. Member Moles noted that the Scheme "envisages that small lot subdivisions might be approved provided agricultural use is not jeopardised - without recognising that the use might lawfully cease use upon subdivision or indeed at any time". However, she considered that it was an incorrect approach to find that because no legal requirement can be imposed to ensure land when subdivided is put to rural uses intended, that the permit should be refused. Member Moles was of the view that such an approach would inevitably lead to the refusal of any rural subdivision. That would negate the availability of discretion to grant a permit.
61. Ultimately, the subdivision needs to represent an acceptable outcome irrespective of the bird breeding activity proposal. On that matter Mr Bitmead submitted that some comfort could be drawn from idea that if the land is subdivided and the business does not succeed, or even commence, the owner would be unlikely to get a permit for an intensive agricultural use given the extent of tree removal which would be required on Lot 2. To that extent I accept that the environmental and landscape values are "guaranteed". Essentially, the subdivision would lead to a second dwelling on a lot which cannot be farmed. It would have no impact on the rural use of the land and would retain environmental and landscape values.
62. There was some discussion at the hearing about whether there is a need to prescribe a building envelope for any second dwelling, particularly in the light of the conditional approval by DNRE.
63. On that matter I note that Member Moles decided that as no further planning approval was required for the development of a dwelling on the new lot created it was appropriate to require the house site (and effluent disposal field) be committed at the time of subdivision, via building envelopes.
64. It is not immediately clear why no additional permit was required in that case. In any event, it is clear that given the size of the proposed Lot 2 in the proposal I am considering there will be requirement for a permit for the development any new dwelling. The question of envelopes could be assessed at that time.
65. There is a policy direction against the subdivision of rurally zoned land and express provisions aimed at the maintenance of sustainable farming activities. However, the planning controls and policies applicable to the subject site also include a range of objectives. In this case, the subject land has little prospect of being used for a sustainable rural activity but the subdivision would facilitate a rural residential use which has the capacity of promoting a small rural enterprise and continued grazing. Most significantly, it would also maintain significant environmental and landscape attributes of the land.
66. Accordingly I will allow the Application for Review and make the appropriate order.
67. The conditions I intend to impose are based on those tendered by the Responsible Authority and discussed at the hearing. They include the standard conditions required by Clause 66.01.
Nilsson, Noel & Holmes
Casey CC [2003] VCAT 718
The Council's decision on Permit Application No. P211/02 was set aside. A permit was directed to issue for subdivision into two lots in accordance with the endorsed plan, subject to six conditions concerning the plan, services, easements, drainage, vehicle access and expiry. The order also noted that the plan submitted for certification under the Subdivision Act 1988 (Vic) was to be referred to the relevant authority in accordance with section 8.