Victorian Civil and Administrative Tribunal|2002-12-18

Parkworth Pty Ltd & Anor v Casey CC [2002] VCAT 1594 (18 December 2002)

PLANNING AND ENVIRONMENT LIST Tribunal No.P001195/2002

MEDIUM NEUTRAL CITATION: [2002] VCAT 1594

Almost rectangular area of land having a frontage of 740.7m to the east side of the Berwick-Cranbourne Road, a depth (on its southern boundary) of 205.2m and area of 15.36 hectares.

I direct pursuant to s 85(1)(e) of the Planning and Environment Act 1987 that permit P 891/00 issued by the Responsible Authority on the 18 April 2002 must contain condition 1 as it appeared in that permit when so issued.

Ms Katherine Paterson, town planner of the City of Casey, appeared for the Responsible Authority. She presented written and oral submissions.

Mr C Canavan QC appeared with Ms Forsyth on the instructions of Frenkel Partners, lawyers, for the applicants. They presented written and oral submissions and called Mr Andrew Biacsi, town planner, as an expert witness. He gave oral evidence and presented a written report. They also relied upon a report of Mr Raymond Neil Phillips of N.R. Phillips & Associates Pty Ltd trading as Agribusiness dated 3 December 2002.

Various plans, photographs and other documents were tendered. The evidence and submissions in documentary form have been retained on the file of the Tribunal.

Application under s.80 of the Planning and Environment Act 1987 (PE Act) for review of a condition in a permit.

Rural Zone (Schedule 6) and partly subject to a Public Acquisition Overlay under the Casey Planning Scheme.

Condition 1 on Planning Permit P891/2002 issued by the Responsible Authority on the 18 April 2002 which condition reads:-

1. The use or development must not be commenced until the landowner has entered into an agreement under Section 173 of the Planning and Environment Act with the Responsible Authority to prohibit the subdivision of the land.

Condition 1 of the permit is unreasonable, unfair and beyond the power of the Responsible Authority.

At the commencement of the hearing the ground that the condition is beyond the power of the Responsible Authority was abandoned by the applicants and the case proceeded on the ground that the condition was alleged to be unreasonable.

1. This case concerns an area of grazing land upon which there is an existing house. The area is just over 15 hectares. The proposal is for the construction of a second house on the land. There is a first house under construction on the land.

2. The land is in a Rural Zone and subject to the provisions for that zone found in Clause 35.01 of the Planning Scheme. Dwelling is a Section 2 use according to the table of uses in Clause 35.01-1. Section 2 uses require planning permission. Clause 35.01-3 provides that the construction or carrying out buildings or works associated with the use in Section 2 of the Clause require planning permission. An application was made to the Responsible Authority for such a permit.

3. The Responsible Authority considered the application. The Council was cautious about granting a permit for this second dwelling. As stated on page 8 of its written submissions:-

The Council does not usually support applications to construct second dwellings on land that is smaller than the minimum lot size specified in the planning scheme, based on the objectives of the Municipal Strategic Statement.

4. A permit is also required, under Clause 35.01-4, to subdivide land. That clause also provides:-

Each lot must be at least the area specified for the land in a schedule of this zone. If no area is specified, each lot must be at least 40 hectares.

5. It is common ground between the parties that the minimum lot size for subdivision in this instance is 40 hectares. It follows, of course, that this land cannot be subdivided unless an exception to this 40-hectare rule applies. The current application was for construction of a house, but did not include an application for permission for subdivision.

6. I do not doubt that the caution displayed by the Responsible Authority in relation to the application reflects a responsible consciousness of the important planning policy considerations that are relevant to the construction of rural houses and to rural subdivisions.

7. The question of rural houses and rural subdivisions are interrelated. There has been an important policy evident in Victorian planning controls in relation to these things for 30 years and more. Originally the concern was evidenced by minimum sizes for rural subdivisions, such as the 40-hectare minimum that is applicable in this case, and control provisions restricting the construction of rural houses. There have been many cases over those 30 years and more where the planning tribunal, in its various forms, has dealt with these problems.

8. Over that period there has been pressure, particularly for sites within commuting distance of the metropolis and substantial regional cities and towns, to construct rural houses on farm properties, and/or to subdivide rural property into small allotments. These problems have been discussed in many cases. An example of where I dealt with these issues is Searls v Romsey Shire Council No. 1 (unreported 1990/13135 noted at [1990] 5 AATR 306) and Searls v Romsey Shire Council No. 2 (unreported 1991/24963 noted at [1991] 8 AATR 4).

9. Rural planning policy recognises that farming land is a very important economic asset of the state, quite apart from its value to the individual owners. However, its value for farming purposes can be compromised or lost if it is fragmented into small pieces that are not useful for farming purposes. The demand for rural houses and rural subdivisions comes from people wanting to exploit the residential value, as opposed to the farming value, of such land. There is a demand from people who like to live in the country on rural residential lots or hobby farms. Such use is essentially residential, rather than farming, in nature. Fragmentation into small holdings makes the land unuseful for genuine farming. It also inflates the per hectare value by endowing it with a residential rather than a farming value. The land value so inflated often means that farming activities cannot justify farming investment in it. Hobby farmers are not genuine farmers and contribute little or nothing in terms of primary production. Genuine farmers complain that the introduction of these amateurs is detrimental to genuine farming. The amateurs frequently have little skill, aptitude and desire to farm properly. They don't have the same incentives of genuine farmers to keep down vermin and noxious weeds and dogs, other than genuine farm working dogs, often present a danger to stock and wildlife. Furthermore, rural residents frequently start demanding town services which are uneconomic to provide to scattered houses or scattered hamlets in what is supposed to be farming land. These demands involve seeking to have other ratepayers, whether real farmers or urban dwellers, subsidise rural residential lifestyles. The inefficiency of trying to provide urban services in such areas is obvious enough.

10. It is important to notice the interrelationship between extra rural houses and rural subdivisions. Some of the problems referred to above arise from extra rural houses constructed for rural residential commuters rather than to meet the genuine accommodation needs associated with the farm, even when no subdivision is contemplated.

11. Three decades ago the rural planning policies in relation to these questions were implicit in the planning scheme, and in the subdivision restrictions and rural house constraints that then appeared in planning controls. They were not necessarily spelt out in zone objectives, decision guidelines and statements of planning policy. Planning schemes have changed over that period so that now all these features are common, with layering of multiple policy statements. These expressions of zone and overlay purposes and planning policies strongly express the sort of planning policy concerns in relation to rural houses and rural subdivisions that had previously been spelt out from the bare control provisions that have existed all along.

12. Good planning generally looks for urban activities, including residential uses, to be confined to urban areas and be constrained from spreading out onto farming areas. If permitted at all, rural residential and hobby farm type activities should be confined to planned areas picked out as suitable for such activities. Areas of low farming value on the periphery of towns and villages are likely to be preferred.

13. The bad planning implicit in the loss of the best farming lands in the state to rural residential occupation and hobby farms is obvious enough. That does not mean that the concern is limited only to the best farming land. The best farming land in Victoria amounts to only a small percentage of the total farming land in the state. Medium quality and other grades of farming land are also of great importance. In fact, medium or lower grades can less bear the ill effects of residential use and fragmentation, and are more readily rendered unproductive by such development. The new planning scheme following the Victorian Planning Provisions form tend to have so many policy statements as to be burdensome and confusing. The purposes of the Rural Zone includes:-

To provide for the sustainable use of land for Extensive Animal Husbandry (including dairying and grazing) and Crop raising (including Horticultural and Timber production).

* Protection and creation of an effective rural infrastructure and land resource.

* Improvement of existing agricultural techniques.

* Protection and enhancement of the bio-diversity of the area.

* 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.

14. Many of these purposes, including particularly the first in relation to sustainable farm use, are compromised by excess rural houses and excessive rural subdivision. They can be seen as economic development that is incompatible with rural activities.

15. Clause 35.01-6 deals with decision guidelines in relation to the rural zone. It states that, before deciding on an application to use or subdivide land, construct a building or construct or carry out works, in addition to the decision guidelines in Clause 65 of the planning scheme, the Responsible Authority must consider as appropriate quite a list of issues. Amongst the most important is:-

Whether the dwelling is reasonably required for the operation of the rural activity conducted on the land.

* The maintenance of farm production and the impact on the rural economy.

* The farm size and the productive capacity of the site to sustain rural enterprise and whether the use or development will have an adverse impact on surrounding land uses.

16. Apart from these matters no less than 6½ pages of the 13 (and a little bit) pages of the written submissions of the Responsible Authority are devoted to planning policy considerations, both statewide and local. The objective in relation to agriculture in Clause 17.05-1 is quoted as :-

To ensure that the State's agricultural base is protected from the unplanned loss of high quality productive agricultural land due to permanent changes of land use and to enable protection of productive farm land which is of high quality and strategic significance in the local or regional context.

17. I have already noted that the protection of productive agricultural land, whether high quality or not is of importance. I think the above quotation could be better expressed in this respect. However, the evidence indicates that this particular land is relatively high quality.

18. On page 7 of its written submissions the Responsible Authority refers to various local planning policy provisions including those in its Municipal Strategic Statement. I will not repeat all that is said there. However reference is made to the nomination of this site as within the farm region in accordance with Clause 21.07. The main issues relating to the farm region include:-

* Loss of farm land from incremental subdivision, rural residential development and non-horticultural activities.

* The problems that arise between the interaction of agriculture and rural living.

* Retaining clear delineation between urban and non-urban land, and the protection of non-urban land for urban activities.

19. The relevant objectives and strategies 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.

* Retain and reinforce existing subdivision controls for farming zones. Discourage repeated excisions that have the potential to reduce the productive capacity of rural properties.

20. I take "repeated excisions" to be a reference to repeated excisions in the area rather than repeated excisions from one particular lot or parcel of land. All such excisions contribute to fragmentation. I am not impressed with a suggestion made by Mr Biacsi that one only looks at repeated excisions from one lot.

Allow rural residential subdivisions where the criteria is specified 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.

22. The Minister's Direction No. 6 deals with rural residential development and seeks to ensure that planning scheme amendments that allow areas for such development are properly considered in strategic planning terms.

* Safeguard the natural resource through encouraging and assisting sustainable farm practices.

* For all rural settlements, consolidate urban development, and provide defensible urban boundaries and a clear demarcation between urban and non-urban areas.

* Discourage the establishment of unwanted urban land uses.

24. Reference is also made to relevant objectives and strategies of natural and built assets including:-

* To protect Casey's agricultural, landscape, cultural or environmental attributes from inappropriate urban development for the future enjoyment of Casey's communities.

* To protect the high quality soils of the south from inappropriate subdivision for intensive farming purposes.

25. All in all, it is not to be wondered at, that the Responsible Authority was cautious about granting permission for an extra rural house on the subject land, quite apart from any consideration of the possible further step of subdivision in the event. However, it decided to grant a permit for the house. It apparently regarded this as an exceptional case. After stating that it would not usually support such an application it said, on page 8 of its submissions :-

However, in this particular case, it was considered that the construction of a second dwelling on the land may enable the land to be used more effectively, based on the information provided in the agricultural report. However as the subdivision of the land would further fragment the site, a condition requiring a Section 173 agreement was placed on the permit.

This condition would ensure that the land would not be fragmented, and further developed for residential purposes, something that is not supported by the Municipal Strategic Statement.

26. I note the use of the word "may" in the first paragraph of the above quotation. I would have thought that more than the recognition of a possibility was called for in this connection. The agricultural report referred to is that of Mr Phillips. The condition requiring a Section 173 agreement is, of course, the one now under challenge.

27. It is important to note the scope of this review proceeding. The Responsible Authority has determined to grant a permit and the decision to grant a permit is not, itself, subject to this review. The review is limited to the inclusion of condition 1. If I was dubious or unconvinced about the appropriateness of granting a permit for the house, or even if I was convinced that the decision to grant was a mistake, I am nevertheless obliged to confine myself to determining the question of the inclusion or otherwise of condition 1. Section 85(1)(e) empowers me to direct that the permit must or must not contain that condition. The only circumstance where the cancellation of the permit might arise is under s 85(1)(g). That paragraph enables the Tribunal to cancel a permit if it upholds an application to review a condition in a permit on the ground that the Responsible Authority has no power to impose the condition and the Tribunal considers that the permit should not or would not have been granted without the condition.

28. The initial grounds of review include the proposition that condition 1 is beyond the power of the Responsible Authority. However, at the commencement of the hearing, Mr Canavan made it plain that this ground, of the condition being allegedly beyond power, was not being pursued. He said that the application for review was confined to the question of whether or not the condition is unreasonable in the circumstances. With the matter being thus dealt with on the merits, rather than on the legal question of power, I should merely disallow the application for review if I am of the view that the permit should not be granted without the condition.

29. I have nevertheless considered the question of rural subdivision, and further subdivision of this land, because they are clearly involved. Also Mr Canavan submitted that condition 1, which is designed to create a bar against subdivision, is inconsistent with what he conceives to be the Council's rationale for granting permission for the house. I have thus been obliged to consider the rationale of the Responsible Authority.

30. It is not always easy to consider the rationale of the Responsible Authority. The Responsible Authority is the Council of the municipality. If the Council has passed a resolution granting a permit it will seldom, if ever, recite its reasons for doing so. In those circumstances the "rationale" is inaccessible. That is, perhaps, less so where a decision has been made by a Responsible Authority through its delegate if the delegate is an individual and/or if the delegate has stated a rationale.

31. In this case there is an officer's report, apparently adopted by a delegate, which places some reliance on the report of Mr Phillips. It may well be that I have all the relevant information that was before the delegate. In any event, as I have explained, and subject to the qualification I have expressed, I am bound by the decision of the Responsible Authority to grant the permit. I don't suppose that means I am bound to accept the rationale, if I consider it to be faulty, illogical or inappropriate. Ultimately I am to review the imposition of the condition, and to maintain its imposition if I consider that to be appropriate on the planning merits. In other words, I should maintain the condition if I think that is justified, even if I thought that the Responsible Authority had reached the right result on a faulty rationale, and even if I thought that the imposition of the condition did not logically follow from the rationale for granting the permit. If the Responsible Authority came to the right result for the wrong reasons, I am not compelled to adopt the wrong reasons and impose the wrong result. Rather I should impose the right result for the right reasons.

32. On this basis I am not overly concerned with arguments along the line that I am compelled to remove the condition because that is said to logically follow from the rationale of the Responsible Authority. Furthermore, if I did consider the grant of permission for the house to be a false step, that would not justify compounding the situation by a further false step in the wrong direction. Ultimately, I have come to the conclusion that, whatever the merit of granting permission for the house, if a permit is granted the imposition of the condition constraining subdivision is both reasonable and warranted.

33. As I have already observed, Clause 35.01-4 provides that subdivision of this land requires a permit but prohibits such subdivision of this land (because the lots would necessarily be less than 40 hectares in area) subject to certain exceptions. There are four such exceptions set out in the Clause. It was not suggested that any of those exceptions apply at the moment.

34. However, a subdivision creating lots smaller than 40 hectares can be granted by a permit if:-

The subdivision is to create a lot for an existing dwelling. Only one additional lot which does not contain a dwelling may be created by the subdivision. Each lot must be at least 0.4 hectares.

35. I had initially understood it to be being put that the construction of the second dwelling would bring this exception into operation because the second dwelling would then become an existing dwelling in relation to which there could be an excision subdivision. That is true enough. However, on re-reading the exception, it appears to me, that the exception is already operative. There is already an existing dwelling on the land, or will be when its construction is completed. The second sentence in the exception does not require an existing dwelling on each lot to be created. On the contrary, it provides that there can be one additional lot that does not contain a dwelling. Thus there could be an excision of the existing dwelling, provided that each lot so created is of at least 0.4 hectares.

36. I have already referred to the approach of the Responsible Authority where it says it would not usually support an application for a second dwelling on an allotment as small as this. It treated this case as an exception because an agricultural report persuaded it that a second dwelling "may" enable the land to be used more effectively. On the face of it this is a quite improbable suggestion. How could it possibly be that a holding of just over 15 acres of grazing land even "may" be capable of more effective use by the presence of an extra house? The answer to this question lies in the report of Mr Phillips. Whether it is a sufficient answer is something that calls for consideration. The Phillips' report is before me. It has been relied upon by both sides.

37. Mr Phillips has a Bachelor of Agricultural Science from a New Zealand University and a Master of Business Administration from Melbourne University. In his "Consultant Profile" he claims special fields of competence in the following terms:-

Specialist skills are in farm and business management, environmental and land use surveys, industry studies and strategic planning. Experience is under various climatic conditions, usually in the livestock, cropping and intensive agricultural industries. Activities include whole farm planning, financial analysis and budgeting, loan negotiation, market research, rural surveys and strategic analysis. Clients include farmers, businessmen, agricultural companies and organisations, and Regional and State Authorities.

38. His report, dated 3 December 2001, commences with a property description. He refers to a classification of the soil by a Dr Ian Sargeant as "Bittern sandy loam". It is said to be suited to intensive agriculture where the A horizon is deep, and the topography allows good surface drainage. By intensive agriculture he apparently means market gardening. He says the land is low lying with relatively poor surface drainage. He continues:-

The combination of soil type, contour and climate characteristics result in a property which is suited to grazing rather than cropping enterprises. Intensive agricultural soil based pursuits (primarily vegetable production) are not feasible due to low soil permeability and an absence of a reliable irrigation supply. Although Clyde Creek runs along the southern boundary, its irrigation capabilities are fully committed (through off stream pumping) by the numerous downstream vegetable producers.

The property is well suited to pasture production and in a fully improved state capable of supporting a stocking rate of between 20-25 dry sheep equivalents2 (d.s.e's)/ha. [A footnote indicates that dry sheep equivalent is that amount of dry matter required by one mature wether per annum].

However its current level of productivity is likely to be significantly less due to its pastures having partially reverted to unimproved species (Yorkshire Fog, Sweet Vernal, poa species and various weeds) and soil fertility levels being at moderate rather than high levels. My estimate of pasture productivity would be at 14-15 d.s.e/ha providing it could be utilised efficiently (through appropriate fencing) by the gazing animal.

39. His previous descriptions had included that the land is improved with "a good boundary fence, a recently established indigenous (sp. plantation) and a near completed house". He also observed that the land is divided into two paddocks which are both serviced by reticulated water.

40. I am prepared to accept what Mr Phillips says so far. He goes on to state that the district supports two main forms of agriculture being intensive vegetable production on the one hand and pasture grazing by dairy, beef or equine enterprises on the other. He observes that:-

Dairying is the most intensive of these activities although its presence in the immediate district is restricted to the grazing and agistment of replacement heifers. Milking herds tend to be further north or east.

The minimum area required to maintain sustainable grazing enterprises is considered to be in the 35-45 ha range. These areas are sufficiently large to allow part-time, but commercial grazing practices to be undertaken. Such an area is sufficiently large to justify adequate levels of investment into water supply, fencing, access lanes, other farm improvements, fodder, conservation and periodic pasture renovation. Below this level, land management becomes increasingly difficult as the areas become too small to attract commercial farmers, yet too large for urban based land holders who only have time for weekend management.

He then goes on to his "Conclusions" in the following terms:-

The natural resource characteristics of the land holding, particularly soil type, climate and pasture type, are quite productive for well managed grazing activities. Intensive cropping is not considered a viable option due to the site's propensity for winter waterlogging and the absence of an adequate irrigation water supply.

However, the site area of less than 15 ha of grazing land is marginal to poor to support sustainable grazing activities. Commercial farmers seek larger areas for lease or purchase due to the limitations of scale small areas impose.

Conversely, urban based landowners find such areas too large to manage effectively given the constraints of time and lack of technical agricultural skills.

The property lies in a difficult no mans land; too small and highly capitalised to be useful for commercial farm acquisition, and too large for the weekend based, urban resident to manage.

41. I do not accept these conclusions at all. Mr Phillips was not called, and I had no opportunity of hearing from him as to how he would explain and justify his conclusion, particularly his assertion that the holding falls into some sort of "no mans land". As I have said, the issues of proliferation of rural houses and rural subdivision have been very live policy issues in relation to rural planning for decades. There are some old and fallacious "chestnuts" frequently trotted out in relation to the discussion of such issues. One of the oldest of such fallacies is to say that a piece of farming land has to be a sustainable and viable farming unit, standing on its own and alone from other land, before it can be considered as useful farming land worth preserving from the harmful effects of the proliferation of rural houses and the fragmentation of farming land into small pieces. The size for a viable farming enterprise varies greatly throughout Victoria and is dependent on many factors such as soil, topography, water supply, rainfall, suitability for various particular forms of farming and so on. The size for viability in this sense is tended to increase over the second half of the 20th century. Fifty years ago a dairy farm of 15 to 20 hectares on fertile soil with favourable topography and good rainfall might well support a family dairy farm. I doubt that this would be so today. However, the sleight of hand involved is to suggest that all of the viable farm undertakings has to be in one piece. Many viable farming undertakings involve more than one piece of farmland, not necessarily contiguous one with another. If this allotment is not a viable farm standing alone, it does not follow that it is not a useful and valuable piece of farming land capable of being a useful and valuable adjunct to a farming undertaking on other land. If the anti-house proliferation and rural fragmentation policies were only to apply to existing contiguous viable farms, there would only be a relatively small proportion of farming land in Victoria to which they would be relevant. That argument would suggest that such policies are already defeated in relation to much farming land, but that is not the case. The policy still applies and are still important. This piece of land, so far as the evidence in this case shows, is quite a good example. It may be disadvantaged somewhat, from a farming point of view, by having the partly constructed house on it, but its usefulness is not destroyed by that circumstance. It may be further disadvantaged by a second house, but again grazing value remains.

42. Mr Phillips' evidence, in my opinion, does indicate grazing as the appropriate use for this land. Why it should be thought that a piece of grazing land of this size needs a second house to be properly managed is not, to put it mildly, obvious or apparent. Although an intention to subdivide is denied on behalf of the applicants, the review is brought against a condition that would prevent such subdivision. Although Mr Phillips has not explained the point at all clearly, the implication of his report seems to be that it would be appropriate for this land to be divided into two hobby farms with a house on each. Certainly the motivation for such a subdivision would arise from the existence of two houses.

43. From a rural planning point of view, and having regard to rural planning policies, it is appropriate that this piece of grazing land should continue as such rather than that it should be fragmented for rural residential or hobby farm activities.

44. In its discussion of Mr Phillips' report the submissions of the Responsible Authority say, on page 6:-

It is noted that if the land were to be commercially viable for rural purposes, the land would need to be consolidated with neighbouring properties to form a larger parcel of land. It is considered that by subdividing this parcel of land, this would further reduce the agricultural viability of the land.

45. I agree it would further reduce the agricultural viability of the land. I do not agree that it has to be consolidated with neighbouring properties to form a larger parcel. It does not have to be connected, and does not have to be in the same ownership. Someone may wish to buy it, or lease it, and use it in relation to adjoining or other land.

However, it is acknowledged that its current size is too large for a weekend based resident to manage. As such, approval was given for a second dwelling to enable the land to be more effectively managed.

47. It is a good thing that it is too large for a weekend based resident to manage, whether such person comes for the weekend, or commutes from the land. The larger it is the more useful it is likely to be to a genuine farm. It is not apparent to me, either from the submissions of the Responsible Authority or the report of Mr Phillips, that the land would be more effectively managed by there being a second dwelling. On the contrary, from the point of view of genuine farming, a second dwelling would be a detriment. There is not enough land here to warrant a second resident farm worker. If the existence of a second dwelling were to be followed by a subdivision, that would compound the detriment and more seriously compromise the opportunity for the land to be effectively managed for genuine farming purposes.

48. Mr Canavan says that the imposition of condition 1 is inconsistent with the Council's rationale to grant the permit. If by this he means that the rationale is that the land should be used for rural or residential or hobby farm purposes, and managed in two little bits in that way, then that rationale is contrary to good principles of rural planning and the relevant local and more general planning policies and purposes of the planning scheme. The Responsible Authority sees a distinction between allowing a second house, and allowing further subdivision of the land. It regards the latter as undesirable fragmentation. Without being persuaded of the appropriateness of the second house, and whilst recognising that the question of the second house is beyond the scope of the proceeding before me, I agree with the Responsible Authority that such subdivision would be contrary to good planning and should be prevented, so far as the submissions and evidence advanced in this case are concerned. The creation of the second house would create the temptation and motivation for subdivision, and if the house is to be allowed, the subdivision should be prevented. Provisions such as s 173 PE Act and the subsequent sections related to it, and s 62(2)(f) have been enacted to enable permits to be granted where appropriate, which, in the absence of such agreements, would have to be refused because of what they would enable or create motivation to achieve.

49. Part, at least, of the usefulness of these provisions can be illustrated by the example of a little child who wants to play in a sand pit of the house next door. That might be quite acceptable, and responsible parents might allow that, but they might need to consider the situation further if there was also a swimming pool in the adjoining backyard. Such swimming pools are required to be enclosed in childproof fences. The child's mother might allow the child to go next door to play in a sand pit, provided that the gate to the swimming pool enclosure is closed and locked. If that precaution is impossible, the mother might forbid the child to go into the yard next door at all. It would only be in circumstances where the locking off of pool gate could be assured that entry to the yard would be allowed.

50. The Responsible Authority has considered that granting permission for the second house "opens the way" for a subdivision that it considers undesirable and contrary to policy. Whether it took that view on the basis that it would open the exception in the planning scheme to allow an otherwise prohibited subdivision, or whether it took the view that it would open the way by creating the motivation for such a subdivision, I consider it an appropriate use of the s 173 provisions to ensure that the granting of a second house will not result in ultimate subdivision.

51. I have considered the evidence of Mr Biacsi. What I have said already indicates that I disagree with what he says about policy considerations and his conclusions. I do not think it necessary to deal with everything he says, point by point, particularly if this would involve a good deal of repetition. However, I do not agree with him that the imposition of the proposed condition circumvents any "right" of the landholder under the planning scheme. Furthermore I do not agree that it removes a discretion conferred upon the Responsible Authority by the planning scheme. It is really the exercise of a discretion conferred on the Responsible Authority by the planning scheme. The landholder retains a discretion as to whether or not to act on the permit. He says that he does not accept the legitimacy of the Responsible Authority's motivation in imposing the condition. I am not aware of what wrong motive the Responsible Authority is supposed to have. I see no reason to assume that it is doing other than its best to carry out its duty under the Act in a conscientious way. He also wanted to argue that the Responsible Authority is effectively compelled by the logic of its decision to grant the second dwelling to also refrain from imposing the anti-subdivision condition. For my part, I am not persuaded by the first proposition, and am unmoved by the second. I disagree with him when he says that he is satisfied that a two-lot subdivision, if it was being considered, would "accord with and respond positively to the relevant strategic policy objectives of the Planning Scheme". I do not think that the circumstance that a portion of the land is subject to an overlay in case a 20m strip might be required for road widening changes of this. I do not agree with his proposition that grazing is not a viable option for the land and I do not think such a proposition is justified on the evidence. I do not agree that the possibility of further subdivision is an irrelevant consideration.

52. He also argued that the land is on the fringe of urban development, but in reality it is 800m away and the land is not zoned for urban purposes. If and when there is a rezoning will be the time to consider urban developments. He argues that overlay controls extend as far east as Cranbourne Road, but that does not mean that land up to that road will be rezoned for urban purposes within the next three decades, or ever. In any event, the overlay he referred to does not extend across the road to where this land is located. This land is rural now and for all foreseeable times and purposes.

53. Rural houses are sometimes justified. A farm will often need a farmhouse for the farmer to live in. A substantial farming holding might need a further house for a son, manager or farm worker to live in. These things are needed to enable the proper working of the farm. I cannot see that any such considerations apply here, and even if they did they would not justify subdivision. The son who works on the farm or the worker or manager provide a good example of where a further house might be justified with the precaution of just such a condition as this one to prevent excision or subdivision.

54. Mr Canavan argues that the condition effectively excludes the jurisdiction that the Responsible Authority or the Tribunal to consider an application for a permit that is available under the planning scheme. I have already explained why I consider it to be the exercise of a jurisdiction rather than the exclusion of a jurisdiction. Mr Canavan referred to my decision in Rosemeir v City of Greater Geelong (No. 1) 20 AATR 86 in this connection. He quotes me from page 113 of the report of that case as saying that a permit cannot override or extinguish a provision of a planning scheme or a discretion created by such a provision.

55. I feel he has quoted me out of context. I was there discussing an old permit or permits containing conditions prohibiting further subdivision. I considered whether those conditions validly achieved that purpose. My recollection is that I concluded that they did not. I refer to s 173 PE Act and s 52A of the Town and Country Planning Act 1961. Section 52A was a forerunner of s 173. Both gave statutory recognition and force to agreements such as an agreement to forswear further subdivision. These provisions were put into those Acts to enable and authorise such restrictions to be imposed, or to make it clear that such restrictions could be validly imposed. They were inserted in the legislation to overcome the limitations such as those I was referring to in the passages quoted. It was considered necessary or desirable that an effective means of providing limitations should be provided where a simple permit condition, without an agreement backed by statutory authority would be ineffective. A condition requiring agreement against subdivision or further subdivision is a good (and common) example. I was certainly not suggesting that these statutory provisions should not be used in appropriate cases. I am persuaded that this is an appropriate case and that it illustrates an appropriate use of those provisions.

56. Mr Canavan went to a further quote about conditions in the pre-statutory agreement situation, amounting to serious warnings but not legally binding prohibitory conditions that bar or predetermine future subdivision applications. That was the effect at the time of imposing the condition I was there considering. However, the situation has been changed because that result was considered to be insufficient and unsatisfactory. It has been changed deliberately by a deliberate legislative reform. Sections 62(2)(f) and 173 are now available. Recognition of the inadequacy of the situation before they (and their previous equivalents) were enacted is not a reason for not using them now that they are part of the law.

57. Mr Canavan also refers to an agreement pursuant to s 173 as being "in the nature of an inflexible private agreement". It is not so private if it is required by a public authority like a responsible authority exercising its public duties in requiring such a condition pursuant to s 62(2)(f) of the Act. In any event, it is not ultimately compelled because as no one compels the owner to act on the permit. It is only if the owner chooses to go ahead and build a second house that it will have to comply with condition 1 and enter a 173 agreement.

58. Mr Canavan put his case on the basis that the condition is unreasonable, rather than that it is not valid. I am satisfied, for the reasons given, that it is valid, reasonable and appropriate.

Parkworth Pty Ltd & Anor v Casey CC [2002] VCAT 1594

At a glance

Court

Decision date

Source

Judgment (112 paragraphs)

Parkworth Pty Ltd & Anor v Casey CC [2002] VCAT 1594 (18 December 2002)

Parties