6 Without the prior permission of the responsible authority a dwelling and associated outbuildings must be located within the building envelope as shown on the endorsed plan.

9 The following shall be undertaken to the requirements of the Department of Sustainability and Environment and to the satisfaction of the responsible authority:

(c) No environmental weeds as identified by the council shall be planted on or allowed to invade that part of the property forming the curtilage of the dwelling; and the curtilage of the dwelling shall be managed and maintained to exclude weeds to the satisfaction of the responsible authority.

(given orally at the hearing and subsequently revised)

1 This case illustrates that requirements that are desirable are not always lawful; and in such circumstances it is incumbent upon a responsible authority and this tribunal to confine itself to conditions which are lawful, regardless of the social and environmental reasons that may exist for a particular requirement.

2 It is necessary to set out some of the background circumstances. The land is currently comprised in three separate titles with a total area of 15.8 hectares. The proposal is to consolidate the three titles into one and then erect a dwelling on the land. Part of the land is subject to a heritage overlay, being that part that forms the environs of Salt Water River. Land adjacent to this river is subject to a Land Subject to Inundation Overlay. A small portion of the land is contained in an Environmental Significance Overlay and the land as a whole is included within a Rural Zone pursuant to the scheme.

3 A dwelling is to be located well outside any of the overlay areas.

4 It would seem that the council decided to grant a permit for the dwelling in the belief that the overall outcome would be beneficial for the environment, because it was able to attach certain conditions to the permit which would require environmental works to be performed nearby to the river. It is unnecessary to detail the precise nature of those environmental works, but they involve fencing a portion of the land adjacent to the river, revegetating that portion with native plants and weed control. There was some variation to the precise area which should be subject to these works between what was in the permit and what was put forward at the hearing before the tribunal, but that variation does not bear upon the critical issue before me.

5 Let me say at once that the conditions sought by the council relate to environmental works that are clearly desirable. Further I am satisfied that if such works are carried out it would further the policies contained within the planning scheme. But, ultimately, it is my view that any condition that is imposed upon a permit must be lawful; and, to be lawful, it must fairly and reasonably relate to the permitted development. Indeed that has been a requirement of conditions on planning permits since town planning started and is usually illustrated by reference to Lord Denning's judgment in Pyx Granite Co Ltd v Ministry for Housing and Local Government (1958) 1 QB 554.

6 The first permit that is needed is a permit to consolidate the land. That permit is only needed by reason of the provisions of clause 43.01-1 of the scheme, which is a provision giving effect to the heritage overlay. Of course that requirement strictly applies only to that very small portion of the land which is contained in Heritage Overlay HO64 which would appear to be the portion of the land that forms part of the riparian stream. A permit being required to consolidate the land I was referred to clause 43.01-5 of the scheme in relation to decision guidelines. These decision guidelines are to be considered as appropriate and in my judgment the only decision guidelines which are relevant are the decision guidelines as to whether the proposed consolidation will adversely affect the significance of the heritage place and whether the proposed consolidation may result in development which will adversely affect the significance, character or appearance of the heritage place.

7 It seems to me quite obvious that the consolidation itself will not affect the significance of the heritage place. This is because the consolidation itself makes no change which has any bearing on the significance of the heritage place.

8 Turning to the other criteria, which potentially is more relevant, it is necessary to consider whether the consolidation may result in development which will adversely affect the significance, character and appearance of the place. I think it could be said that the proposed consolidation does result in the development of the land with a dwelling. This is because it is less likely that the responsible authority would have decided to permit a dwelling if it were not for the fact that consolidation is sought. Indeed I was told, and I accept, that if it were not for the heritage overlay it would be likely that any permit for a dwelling would be subject to a condition requiring the consolidation of the land. That said, I am not satisfied that the development of the land with a dwelling has any bearing on the significance, character or appearance of the heritage place, which is the riparian area along the river. The dwelling is to be located some 200 metres from the river and whether or not it exists has no bearing upon the significance, character and appearance of the river.

9 A permit is also required pursuant to clause 35.01 of the scheme for the use of the land as a dwelling. This use must meet the requirements of clause 31.01-2, compliance with which has not been raised before me. Further, pursuant to clause 35.02-3 a permit is required to construct a building associated with a use in section 2 of clause 35.01-1. Clause 35.01-6 sets forth decision guidelines in relation to applications to use land within the Rural Zone and also to construct a building within that zone. Those decision guidelines set out a range of matters that include things such as the capability of the land to accommodate the proposed use, likely environmental impacts and the impact of the use or development on the flora, fauna and landscape features of the locality. Further there are clearly policies which, looked at in the broad, support the type of environmental conditions that the council seeks to impose.

10 The real problem with the conditions is that they are related not to the consolidation or the erection of the dwelling, but, rather, to farming operations that occur on the land. In this respect it is relevant that clause 35.01-1 of the scheme provides that a permit is not required to use the land for crop raising or extensive animal husbandry. It is the crop raising, and possibly the animal husbandry, that poses the real threat to the environment. It is these activities which it would be desirable to manage in order to ensure that the riparian area is protected. But the planning scheme is adamant that these uses are uses that may occur without obtaining a permit. Whether or not the land is consolidated and whether or not the dwelling is erected, these uses can take place. Indeed, the crop raising use is likely to continue to take place if this permit is not granted. Thus I find it difficult to see how the conditions proposed by the council, worthy as they are, have any relationship to the permit that is now sought by the landowner. Rather it is a type of condition that relates to a use which the planning scheme permits as of right.

11 If any long term technique is to be used to address the negative implications of farming practices, it would need to take account of not only the fact that farming is generally permitted without a permit in rural zones, but also the fact that farming is protected by existing use rights in most areas of the State. There is of course an ability for the Parliament to pass a law which involves the approval or ratification of a code of practice which could then effectively apply notwithstanding the existence of existing use rights. In this respect I specifically point to section 6(4A) of the Planning and Environment Act which provides that a planning scheme may require a use which has existing use rights to comply with a code of practice which has been approved or ratified by the Parliament under an Act. The council may wish to give consideration as to whether to make representations to the Minister for Planning to give effect to such a reform. If that was done it would mean that the type of environmental works that the council now seeks to impose upon a person who needs a permit, namely someone who wants to erect a dwelling, could in fact be applied much more broadly and hence more fairly, and more effectively, to all farming practices. But this is essentially a matter for the Parliament and I say no more about it.

12 What I can say is that however worthy a condition is, it is necessary that it have a proper connection with the permit being granted. In this case I do not regard the condition requiring environmental works to be implemented to have the connection that is required with the consolidation of the land or the construction of the dwelling.

13 Mr Fadgyas applied for an order as to costs. I find that the council has acted in good faith. I find that the conditions it has sought to impose were designed to achieve an environmental and planning objective. I regard the question of the power to impose these conditions as one that is not as simple as might appear, particularly to those practising at the coal face of town planning. I also note that section 109 of the Victorian Civil and Administrative Tribunal Act provides that the general rule is that each party is to bear their own costs. There is a power to depart from that general rule if it is fair to do so. I rarely depart from that rule in planning merits matters and I do not propose to do so in this case having regard to the findings that I have made.