Construction of a single storey, four bedroom dwelling in the north-western corner of the subject site. The dwelling is setback a minimum of 32.5 metres from the northern boundary and a minimum of 33 metres from the western boundary.

Application under Section 77 of the Planning and Environment Act 1987.

Environmental Significance Overlay, Schedule 4 (ESO4)

Clause 35.04-1 - Dwelling is a Section 2 use

Clause 35.04-5 - Construct or carry out building or works associated with a Section 2 use

Clause 35.04-5 - Construct a building within 100 metres from a dwelling not in the same ownership

Clause 42.01-2 - Construct a building or construct or carry out works

The subject site is located on the southern side of Cambridge Street. The site is rectangular in shape with a width of 115 metres and a depth of 190 metres, yielding a site area of 2.01 hectares. The site features mature vegetation along all boundaries, a gravel driveway and a small dam in the southern portion of the site. The site was previously used as an orchard and is currently unoccupied.

Brown v Mornington Peninsula SC [2010] VCAT 92

Miglioranza v Mornington Peninsula SC [2011] VCAT 1552

Lyons v Mornington Peninsula SC [2011] VCAT 1761

1. In October 2011, the Mornington Peninsula Shire Council issued a Notice of Refusal to Grant a Permit. The permit applicant lodged an application for Council's decision to be reviewed.
2. We consider that the key questions for determination are:
   • Does the proposed dwelling meet the policy directions for this green wedge area?;
   • Is the proposal compatible with surrounding land uses?;
   • Is the location and design of the dwelling appropriate?; and
   • Is the draft Land Management Plan and its associated conditions appropriate?
3. The Tribunal must decide whether a permit should be granted and, if so, what conditions should be applied. Having considered all submissions and evidence presented, with regard to the applicable policies and provisions of the Mornington Peninsula Planning Scheme, we have decided to set aside the decision of the responsible authority. Our reasons follow.

Does the proposed dwelling meet the policy directions for this green wedge area?

1. In essence, the relevant components of the State and Local Planning Policy Framework, the Green Wedge Zone provisions and the Environmental Significance Overlay provisions[1] seek to ensure that new development in this location does not have an inappropriate impact on the:
   • ongoing viability of agricultural and rural production, including the protection of productive farmland;
   • environmental and natural values and resources of the area; and
   • landscape character and natural heritage of the area.
2. We have determined that in relation to each of the above matters, the proposed single storey dwelling is appropriate as set out below.

Ongoing viability of agricultural and rural production

1. In relation to ensuring the ongoing viability of agricultural and rural production and the protection of productive farmland we find that the subject site is unsuitable for productive and viable agricultural use due to its small site size of just over 2 hectares. During the hearing, Mr Newman agreed with this position and conceded that site consolidation would be required to provide an allotment of a viable size to be used for agricultural purposes. We agree with Mr Quelch's contention that due to the subdivision and ownership pattern of the area:

it is not realistic, feasible or practical to expect the consolidation of one or a number of these lots with the subject site to form one large rural landholding capable of being used for economically sustainable agricultural purposes.

1. We have considered the three VCAT decisions referred to us by Mr Newman. All three VCAT decisions related to individual Green Wedge zoned allotments located within an essentially undeveloped eleven-lot subdivision. This context meant that all three determinations set a precedent for how the balance of the subdivided land could potentially be used and developed. In these cases, purely residential use was determined to be unacceptable as it created the potential for the whole of the subdivided area to become a de facto rural residential area. Moreover, there was a broiler farm located proximate to the area. The broiler farm use created the potential for land use conflict between it and any proposed residential use.
2. We find that these two key factors (that is, the potential transformation of green wedge land into a de facto rural residential area, and the creation of land use conflict between the proposed dwellings and the broiler farm) are not analogous to the facts and circumstances of this case. In this case, the surrounding area can already be characterised as a rural residential environment; the subject site is the smallest allotment in the immediate area, thereby not forming a precedent for future development in the area; and there are no land use conflicts or interface issues created by the proposed residential use.

1. We find that the proposed use and development will not have a negative impact on the environmental, natural or landscape values and character of the area as:
   • The proposal is for a single storey dwelling which will be largely screened by the existing boundary vegetation;
   • No tree removal is proposed and the dwelling is sited to avoid any detrimental impact on the health of existing trees;
   • The flat topography of the site means that no excavation or fill is required;
   • No additional access will be required to the site as the proposed dwelling will be accessed from the existing driveway;
   • The site coverage is only 1.75%;
   • The site can be connected to essential services, with potable water provided by water tanks and the dam providing non-potable water. The size of the lot means that waste water can be contained on site in accordance with the Environment Protection Authority's Septic Tank Code of Practice; and
   • A Land Management Plan is required as part of the permit (this is discussed in greater detail in a later section of this Decision).

Is the proposal compatible with surrounding land uses?

1. We agree with Mr Newman's analysis of the land use pattern in this locale. In his submission he accepts that:

The reality though is that the rural landholdings in this and the wider area are generally quite fragmented, and there are probably as many being used for 'lifestyle' purposes (rural living and low density residential with perhaps some hobby keeping of horses etc) as there are for legitimate rural purposes.

1. The rural residential nature of the immediate location is evident in the use of land proximate to the subject site. Mr Newman provides a useful summary of the uses of nearby and abutting land as follows:

307 and 307A Coolart Road is on the opposite side of Cambridge Street and is a large (comparatively for this area) lot of 24 hectares which is used for horses. A two storey dwelling is located close to the Cambridge Street frontage and just to the north-west of the subject land.

305 Coolart Road is a lot of approx. 5.9 hectares which adjoins the west side of the subject land. It comprises open paddocks (grazing) but also contains a dwelling and outbuildings which are accessed from Cambridge Street.

8 Cambridge Street is a lot of approx. 8.1 hectares which adjoins the east side of the subject land. It is also occupied by a dwelling and outbuildings which are accessed from Cambridge Street.

196 Mornington-Tyabb Road is a lot of approx. 4.2 hectares and adjoins the subject land to the south. The site is [sic] contains a dwelling and outbuildings and also large dams.

1. We also note that, in addition to the existing dwelling, 8 Cambridge Street will also have a second two storey dwelling (approved as a 'Dependent person's unit'). Moreover, land located further eastwards, beyond 8 Cambridge Street and 307-307A Coolart Road, is zoned Low Density Residential and the use and development of this area reflects that zoning.
2. We are of the opinion that the proposed dwelling is compatible and consistent with the surrounding land uses which can generally be characterised as rural residential in nature. We therefore find that the proposed dwelling will not result in any land use conflict or interface issues.

Is the location and design of the dwelling appropriate?

1. The planning scheme requires that the siting and design of the proposed dwelling responds to the valued environmental and landscape characteristics of the site and area[2].
2. The Green Wedge Zone provisions also include a specific permit trigger where a building is sited within 100 metres of a dwelling not in the same ownership. The proposed dwelling is located approximately 90 metres from the dwelling at 307-307A Coolart Road.
3. We find that the location and design of the proposed dwelling is appropriate and does not have a negative impact on this location as:
   • it is single storey in height;
   • the proposed palette of materials and finishes are controlled by a permit condition;
   • it has a site coverage of only 1.75%;
   • it is setback a minimum of 33 metres from the side boundaries and a minimum of 32.5 metres from the front boundary;
   • it utilises an existing accessway;
   • it is sited to avoid any tree removal; and
   • it is largely screened from view by the existing boundary planting.
4. At the hearing we discussed with the parties apparent deficiencies in the design in relation to the orientation of living spaces within the dwelling to sunlight, and the adverse consequences of this in relation to amenity and sustainable energy consumption. We observe that this is a site without any real constraints in relation to the siting and orientation of the dwelling. We will impose an amending plan condition requiring some reconsideration of the orientation and internal planning of the proposed dwelling.

Is the draft Land Management Plan and its associated conditions appropriate?

1. In addition to the planning scheme provisions, the Council has adopted a policy know as the 'Interim Policy in Relation to Rural Dwellings'. We were advised by Mr Newman that this policy largely packages up existing policies relating to green wedge land and presents this in the one document. He also advised that Council has not initiated any process to include this policy in the planning scheme.
2. We agree with Mr Quelch's submission that due to the status of this policy we cannot consider it to be a seriously entertained document. This conclusion is important as the policy does introduce new requirements in relation to the content of planning permit conditions. In this case, the relevant draft conditions proposed by Council are:
   • that the building envelope must not exceed 2000m2;
   • the requirement to prepare a Land Management Plan which deals with specific matters; and
   • the requirement for a Section 173 Agreement to implement the Land Management Plan and that also recognises that the occupation of rural land should be linked to and conditional upon the owner/ occupier's acceptance of the potential amenity impacts of nearby agricultural uses.
3. As we find that the policy should not be accorded any weight, we have considered the proposed Council permit conditions on their merits.
4. The planning scheme provisions require that the use and development of the subject site provides for sustainable land management practices. We therefore consider it appropriate for the planning permit to include a condition requiring the preparation of a Land Management Plan. We note that the draft permit conditions provided by Council referred to this Plan as the Land Conservation and Rehabilitation Plan. In order to be consistent with the discussions at the hearing, we have renamed this plan the 'Land Management Plan'.
5. The permit applicant has submitted a draft Land Management Plan. Council submitted that this Land Management Plan was insufficient. The proposed Land Management Plan deals with a range of matters relating to landscaping, habitat protection, fencing, prohibition of keeping cats and dogs and prohibition of the use of motor vehicles and motor bikes on the land.
6. We fail to see how the proposed Land Management Plan is insufficient: Council provided us with no explanation as to why it was considered deficient. We find that the draft Land Management Plan generally meets the requirements of the proposed permit condition. In fact we are of the opinion that in one aspect, the draft Land Management Plan is overly onerous as it includes a Section 173 Agreement requirement.
7. We consider it unnecessary to require that the Land Management Plan be registered on the Certificate of Title through the use of a Section 173 Agreement. Permits regularly include conditions relating to the preparation, endorsement and implementation of management plans (for example, construction management plans, conservation management plans, parking and traffic management plans and patron behaviour management plans). We think there is no reason why the ongoing enforcement and implementation of the Land Management Plan cannot be achieved through appropriate oversight practices and procedures of the Council.
8. The draft Section 173 Agreement condition also includes a requirement that:

The permit holder indicates that they are fully aware of the potential emissions (visual, noise and odour) associated with agricultural activities in the locality and proceed with the use and development of their dwelling in full knowledge that one of the objectives of the Green Wedge Zone is to accommodate productive agricultural use and that this activity should be expected and that they are aware of their obligations in relation to proper land management.

1. We find that this requirement is unnecessary as there are no incompatible agricultural uses proximate to the subject site. We also find that 'proper land management' will be achieved through the implementation of the Land Management Plan.
2. We are of the opinion that the other matters included in the draft permit condition outlining the content of the Section 173 Agreement are also unnecessary. We find that the requirement which prohibits the planting of hedges and the maintenance of existing hedges in order to protect scenic views is not required. We agree with Mr Quelch's submission that this site is not in a Significant Landscape Overlay and this is not a relevant consideration for this site, particularly given the existing screening qualities of the boundary planting. Similarly, the prohibition of the construction of bund walls and the like, as well as the management of farming practices, are not relevant to this site.
3. We are therefore not persuaded of the necessity nor the benefits of entering into a Section 173 Agreement. As discussed above we are of the opinion that several components of the proposed Agreement are irrelevant and that the balance of the outcomes sought through the Agreement can be achieved through the endorsement, implementation and ongoing enforcement of the Land Management Plan and the Landscape Plan. We therefore have deleted this condition and we note that consequently any future Landscape Management Plan will not need to include a section relating to a Section 173 Agreement.
4. Secondly, we consider it not appropriate to include approval of a 2000m2 building envelope as part of the permit conditions. A 2000m2 building envelope is inconsistent with the footprint of the proposed dwelling, which is less than 500m2 in area. Any further buildings and works associated with the dwelling, such as a shed, will be subject to the normal planning assessment process. We have therefore deleted this requirement from the permit conditions. We note that any future Land Management Plan will therefore not require any clauses relating to an approved building envelope.

1. In addition to general improvements to the drafting of conditions, set out below are some more specific changes made to draft conditions.
   • The Green Wedge Zone provisions include a range of conditions relating to the provision of infrastructure. All the parties were satisfied that the draft permit conditions complied with these requirements.
   • In addition to the deletion of both the Section 173 Agreement and the building envelope conditions, we also find that the 'Requirement for a Water Management Plan' condition is unnecessary as the site is not located within a bushfire prone area and a dam is located on the site.
   • We have modified the Landscape Plan condition to allow not less than 80% of species to be either native or indigenous species, rather than requiring more than 80% of all planting being indigenous species. We think that the modified requirement is reasonable given the site size and will achieve the environmental outcomes sought by the planning scheme.
   • We have also modified the Landscape Plan implementation requirements. We consider that the proposed 6 months implementation timeframe is unrealistic and unreasonable given that the site is over 2 hectares in area. We find that a more practical approach is for the permit condition to require that a schedule setting out an appropriate timetable for landscaping implementation be prepared to the satisfaction of the responsible authority.

1. It follows from the above reasons that it is the Tribunal's conclusion that the decision of the responsible authority should be set aside and a permit should be granted subject to the conditions set out in Appendix A.

The permit allows the use and development of a single dwelling in accordance with the endorsed plans.

Plans required prior to commencement of the approved use and development

1. Prior to the commencement of any use and development approved by this permit:
   • (a) Amended use and development plans 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 be generally in accordance with the plans which accompanied the application but be modified to show:
     • (i) Changes the orientation and/or internal planning of the proposed dwelling to improve the dwelling access to sunlight and energy efficiency;
     • (ii) The location and layout of the proposed driveway and crossover;
     • (iii) A schedule of external material and finishes, being muted in tones and of non-reflective materials.
   • (b) A Land Management Plan must be submitted to and approved by the Responsible Authority. The plan must be prepared by a suitably qualified person. When approved, the plan will be endorsed and will then form part of the permit. The plan must include environmental and conservation measures consistent with Green Wedge Zone Objectives, to the extent that they are relevant to the particular site and its environs, including where relevant:
     • (i) Measures to protect bushland and area set aside for new native planting from domestic animals;
     • (ii) Fencing that allows for the natural movement of native wildlife;
     • (iii) Regeneration of the vegetated areas of the land with suitable indigenous species;
     • (iv) Measures for the preservation and enhancement of the biodiversity of flora and fauna on the land;
     • (v) The management and eradication of woody weeds and noxious weeds; and
     • (vi) The avoidance and management of erosion.

together with a time frame for the implementation of relevant elements of the plan.

(c) A Landscape Plan must be submitted to and approved by the Responsible Authority. The plan must be prepared by a suitably qualified person. When approved, the plan will be endorsed and will then form part of the permit. The plan must be drawn to scale with dimensions and three copies must be provided. The plan need only provide a conceptual framework for the future landscaping of the land and to the extent relevant to this objective show:

• (i) The location and type of all proposed plantings;
• (ii) A schedule of species proposed for planting including size at maturity and both common and botanical names;
• (iii) That not less than 80% of all proposed plantings consist of either native species or specifies indigenous to the locality.

together with a time frame for the implementation of relevant elements of the plan.

1. The layout of the approved use and development on the land, including the size and type of the proposed buildings and works, and the materials of construction, as shown on the endorsed use and development plans must not be altered or modified without the consent of the Responsible Authority.
2. The endorsed Landscape Plan and Land Management Plan must be implemented on an ongoing basis to the satisfaction of the responsible authority. Measures required by the plans that have been implemented must thereafter be maintained to the satisfaction of the responsible authority. The plans must not be altered or modified without the consent of the Responsible Authority.

1. No polluted waters or any other liquid wastes shall be discharged into the stormwater system or any other watercourse, and all wastewater must be contained onsite in accordance with Council's Wastewater Management Plan to the satisfaction of the Responsible Authority at all times.
2. The dwelling must be connected to an approved waste water treatment and disposal system to the satisfaction of the Responsible Authority prior to occupation.
3. Works associated with the proposed dwelling must not commence until a permit to install a septic system is issued by Council's Environmental Health Department.

1. Prior to the occupation of the dwelling, the driveway must be constructed and thereafter maintained and drained to the satisfaction of the Responsible Authority.

1. All disturbed surfaces on the land resulting from the development must be revegetated, battered and stabilised to the satisfaction of the Responsible Authority.

1. This permit will expire if either one of the following applies:
   • (a) The development is not completed within two years of the date of this permit.
   • (b) The use is not commenced within two and a half 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 three months of the expiry date.

[1] Clauses 11.04-6, 11.05-3, 12.04-1, 14.01-1, 16.02-1, 21.09, 22.03, 22.14, 35.04, 42.01

[2] Clause 21.09; Clause 22.14 clause 35.04; ESO Schedule 4.