A permit is not granted in permit application no. DR/964/2005; no permit is to issue.

The decision of the Responsible Authority is affirmed. In permit application number DSD/965/2005 no permit is granted.

Mr Trevor Ludeman, Town Planner, who called Mr Phil Jeffery, Civil Engineer, to give evidence on effluent disposal.

Mr Ken Gilchrist, Solicitor of Beck Legal, assisted by Ms Sue Pilley, Town Planner of Greater Bendigo City Council.

1 This case is about two applications for adjoining sites in Eaglehawk. The first application is for the construction of a dwelling at 156 Whipstick Gully Road (P1834/2006). The second application is for a two lot re-subdivision and construction of a dwelling on each lot created at 132 Whipstick Gully Road and 15 Clymo Road (P1835/2006). I find that the applications are not supported by planning policy or controls of the Greater Bendigo Planning Scheme.

2 The City of Greater Bendigo refused the second application for subdivision and dwellings on the following grounds:

That the proposed development is contrary to key policies for rural dwellings and rural subdivisions and that it would result in :

a.

Sporadic development of existing small lots for rural living.

b.

Increased infrastructure servicing costs, ie. Increased maintenance of rural roads.

c.

Fragmentation of land capable of agricultural production.

d.

Concentration of lots that adversely affects the general use and character of rural areas.

The applicant has failed to demonstrate conclusively that wastewater can be managed on the land.

3 At the hearing Mr Gilchrist for the applicant advised that the second ground of refusal was no longer being pursued.

4 The refusal by Council of this application appears to have crossed paths with the application for review under Section 79 of the Planning and Environment Act 1987 (the 'Act'). At the hearing I indicated that I could amend the application for review under Section 64 of Schedule 1 of the Victorian Civil and Administrative Act 1998. There were no objections to this amendment and I duly amended Application for Review P1835/2006 to an application under Section 77 of the Act. In relation to Application for Review No P1834/2006 the application remains under Section 79 of the Act since no decision was made on this application.

5 The land the subject of this review comprises three existing titles as follows:

• 156 Whipstick Gully Road, comprising an area of 2.7ha. The northern portion of the site is bushland with the southern part cleared.

• 132 Whipstick Gully Road, comprising an area of 1.93ha. This site is largely cleared.

• 15 Clymo Road comprising a narrow strip of land (20m wide) adjacent to the Clymo Road frontage with an area of 0.88ha. This land is cleared and is a disused Coliban Water easement.

6 The land has a gentle slope to the east away from Whipstick Gully Road.

7 There is a rural water supply channel along the eastern boundary of the site. Between Nos 132 and 156 Whipstick Gully Road there is a Crown reserve for a redundant channel. Further east is a cleared property with frontage to Clymo Road and developed with a dwelling.

8 To the south and west of the site is bushland which forms part of the Bendigo Regional Park.

9 To the north are bushland properties, some with cleared land, fronting Prowse Road.

10 The land is located approximately 1 km to the north of the urban area of Eaglehawk North. Both Clymo and Whipstick Gully Roads are unsealed.

11 Application for Review No P1834/2006 relates to a proposal to construct a dwelling at No 156 Whipstick Gully Road. The proposed dwelling is to be sited in the cleared area of the land, setback some 50m from the road.

12 Application for Review No P18335/2006 proposes to resubdivide the two existing lots at No132 Whipstick Gully Road and 15 Clymo Road to create two new lots, each with an area of just over 1.4ha. A house is proposed on each of these lots.

13 The sites are zoned Farming under the Greater Bendigo Planning Scheme (the 'Scheme'). In this zone a permit is required for subdivision and each lot must be at least 40 hectares. A permit may be granted to create smaller lots where the subdivision is the re-subdivision of existing lots and the number of lots is not increased. Clause 35.07-3 requires that an agreement under Section 173 of the Act must be entered into with the owner of each lot created which ensures that the land may not be further subdivided so as to increase the number of titles and the agreement must be registered on each title.

14 A permit is required for use of the land for a dwelling where the lot is less than the area specified in the Schedule to the Zone. In the schedule to the Zone the minimum area for which no permit is required to use the land for a dwelling is 40ha. As each of the sites (the two lots proposed to be created by resubdivision of 132 Whipstick gully Road and 15 Clymo Road and the existing lot known as 156 Whipstick Gully Road) have an area less than 40ha a permit is required for a dwelling and the requirements of Clause 35.07-2 must be met.

15 A permit is required for construction of the dwelling under Clause 35.07-4 as the use is in Section 2 of Clause 35.07-1. Decision guidelines are provided at Clause 35.07-6 and at Clause 65 of the Scheme.

16 With respect to the State Planning Policy Framework (SPPF) Clauses 11, 12, 14, 15 and 17 are relevant with 12.03 Networks with the regional cities and 17.05 Agriculture being of key importance.

17 The Local Planning Policy Framework (LPPF) includes the Municipal Strategic Statement (MSS) which identifies issues associated with rural living and agriculture under the key themes of Settlement and Economic Development. The local planning policies of relevance include:

•

Clause 22.02 Rural Dwellings Policy

•

Clause 22.03 Rural Subdivision Policy

18 The parties at the hearing relied on both written and oral submissions and a number of photographs and plans were tendered to the Tribunal. I inspected the subject site and surrounds following the hearing.

19 At the commencement of the hearing Mr Ludeman sought leave to substitute plans for this development. There was no objection and accordingly, pursuant to Section 64 of Schedule 1 of the VCAT Act, the revised plans marked 'Plan of Proposed Development Version 1 Sheets 1-3 (inclusive)' were substituted.

20 The key issue for consideration in this case is whether the subdivision and the erection of three dwellings on three lots would be consistent with State and Local policies, particularly the Rural Dwellings Policy, the Rural Subdivision Policy and the purpose and decision guidelines of the Farming Zone.

21 The Council submitted that the applications are contrary to many of the policies of the SPPF, MSS and LPPF and identify the major concerns as follows:

•

The review sites are not within the preferred rural living locations and there is ample supply of existing rural residential lots in the preferred locations.

•

The proposed subdivision and development is inconsistent with the purpose of the Farming Zone and does not achieve the policy objective of discouraging the construction of dwellings on existing small lots within the Farming Zone.

•

Acknowledging that the review sites are not high quality agricultural land, there would be some capability for a small scale horticultural development.

•

Potential impact on adjoining farmland in respect of pest and weed control and control of domestic animals.

•

Visual impact to the landscape values of the nearby Bendigo Regional Park.

•

Potential for increased infrastructure costs.

•

If permits are granted there could be potential for further development of this type.

•

Impact of effluent if the waste water systems are not maintained having regard to the close proximity of the Coliban water assets, namely the Cockatoo Hill channel.

22 The applicant for review argued that the site is suitable for the subdivision and dwellings proposed based on the following points:

•

The Farming Zone applicable to the site approved under Amendment C67 to the Greater Bendigo Planning Scheme was a direct translation from the previous Rural Zone and was not based on any strategic assessment. This has resulted in an inappropriate zone that does not reflect the current development and settlement pattern of the area.

•

The land is unsuitable for farming and therefore its development will not result in the loss of any agricultural land.

•

The proposal will not result in loss of any native vegetation.

•

The land can satisfactorily accommodate on-site disposal of waste.

•

The land is located in an established hobby farming/rural residential area rather than an agricultural area. Dwellings on the land would thus not be adversely affected by agricultural activities nor would the operation or expansion of nearby agricultural uses be adversely affected.

•

The purpose of the zone and its provisions need to be tempered by the reality of the site's location, the type of surrounding development and the limitations on use of the land for farming.

23 The Scheme provides direction in relation to dwellings and subdivision in rural zones. In summary, the sections of the SPPF[1] relevant to these matters seeks to:

•

Ensure appropriate land use and development which integrate relevant environmental, social and economic factors in the interest of net community benefit and sustainable development.

•

Reduce the proportion of new housing development in rural areas, discourage development of isolated small lots in rural zones for use for rural living and encourage consolidation of existing isolated small lots in rural zones.

•

Protect existing landscape values and environmental qualities.

•

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

24 The MSS, whilst recognising that rural living is a legitimate aspect of settlement in the municipality, acknowledges concerns associated with such development. These concerns include an oversupply of land for such development, wildfire hazard, standard of infrastructure, loss of agricultural land and adverse environmental effects. Strategies[2] include:

•

Discourage the rezoning of land in the Farming and Rural Conservation Zones to Rural Living Zones, while there is an adequate supply of rural living land.

•

Discourage the construction of dwellings on existing small lots within the Farming Zone.

•

Discourage the subdivision of agricultural land and dwellings not associated with agricultural activities within rural areas.

•

Manage development in an environmentally sustainable manner.

25 The protection of the agricultural resource base and of land with significant environmental values identified in State policy and the MSS is reinforced by two local policies. Clause 22.02 Rural Dwellings Policy and Clause 22.03 Rural Subdivision Policy both contain objectives discouraging the fragmentation of rural land, or land with significant environmental values.

26 The Farming Zone objectives are important considerations in these applications. The objectives of the Zone are:

• 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 use of land for agriculture.

• To encourage the retention of productive agricultural land.

• To ensure that non-agricultural uses, particularly dwellings, do not adversely affect the use of land for agriculture.

• To encourage use and development of land based on comprehensive and sustainable land management practices and infrastructure provision.

• To protect and enhance natural resources and the biodiversity of the area.

27 There are a number of decision guidelines to be considered under the zone provisions including specific matters relating to agricultural, dwelling and environmental issues.

28 State and Local policy and the provisions of the Farming Zone provide a clear message that increased housing in the rural areas, outside those areas specifically zoned for rural living, is not supported unless such housing supports or enhances agricultural production. I find that the applications which will result in three dwellings on relatively small rural lots are contrary to the planning policy framework and controls. This finding is based on the following matters:

•

The land can be used for productive agricultural purposes. I note that there was no dispute that the review sites do not include high quality agricultural land and that the northern portion of No 156 Whipstick Gully Road is heavily vegetated. Acknowledging that the size and land capability of the review sites will limit viability of agricultural use, there was no evidence put to me that agricultural activities cannot be undertaken on the land.[3]

•

A low productivity of land does not justify converting the land for rural residential or hobby farm purposes, particularly given that the majority of the review sites comprises cleared grazing land.

•

There is no connection between the proposed houses and the operation of agricultural activity conducted on the land as required under the decision guidelines of the Farming Zone.

•

The subdivision and use for three dwellings is not compatible with the utilisation of the land as a sustainable agricultural resource.

•

The subdivision and three houses proposed would result in permanent fragmentation of land which has some potential for agricultural use.

•

The construction of three dwellings on the total property of 5.51ha will contribute to the fragmentation of rural land and will entrench the rural living use of the land contrary to the purpose of the Farming Zone.

•

The subdivision and three houses proposed will contribute to a concentration of smaller lots changing the general use and character of the rural area contrary to the Rural Subdivision Policy.

•

The existence of other small lots and hobby farm activities nearby does not justify creation of additional small lots or dwellings. The Scheme actively discourages these outcomes for this area and I agree with the findings of the Tribunal referred to me by Mr Gilchrist in which the existence of non-rural activities and smaller allotments nearby was not found to be a sufficient basis to depart from the policies and controls of the Scheme.[4]

29 Having found that the applications are not consistent with the applicable planning policies and controls, I find it appropriate to comment only briefly on other issues raised at the hearing.

30 Mr Ludeman submitted that approval of the applications would not create a precedent for the Farming Zone as the sites are within a hobby farm area and there is no impact on existing agricultural uses. I am not persuaded by this argument for two reasons. Firstly, the aerial photos together with my inspection of the area show that there are a number of lots under the minimum lot size of 40ha which are not developed for housing. Approval of these applications would create a precedent for similar proposals resulting in a change to the general rural character of the area contrary to the policy and zone provisions. Secondly, I agree with Mr Gilchrist that No 15 Clymo Road was never intended to be developed as a separate lot since it reflects a disused easement and its dimensions are such that development would be difficult. Relying on this lot to create a new useable lot, whilst technically possible under Clause 35.07-3, would create an undesirable precedent in the Farming Zone contrary to the purpose of minimising fragmentation of agricultural land.

31 Mr Jeffery gave evidence that wastewater treatment and effluent dispersal on-site is sustainable for each of the three dwelling proposed. I accept this evidence. I note Mr Gilchrist's concerns regarding potential pollution if the systems are not maintained but I am satisfied that conditions could be imposed to ensure appropriate maintenance were permits to issue.

32 Potential for increased infrastructure costs was raised as a concern by Council. I note that there is no reticulated water available to the land and the access roads are unconstructed. I agree that increased density of housing in rural areas can create demand for services not generally expected in rural areas but I do not find this issue determinative in these applications.

33 I agree with Mr Gilchrist that three houses and associated works will have a detrimental visual impact in the landscape setting of the nearby Bendigo Regional Park.

34 I do not accept the applicant's connection between additional housing and opportunity for planting with indigenous vegetation. The land can be environmentally improved without additional opportunities for houses.

35 Mr Ludeman made extensive submissions to argue that the sites are inappropriately zoned Farming. He argued that State and Local policies on agriculture are not particularly relevant or useful for consideration of three dwellings in a 'hobby farming precinct'. I do not agree with this submission. The applicable law in determining a proceeding is the law in force when the hearing is determined and I must therefore have regard to the Scheme as it currently exists. The overall thrust of Scheme is to limit the construction of houses in rural areas and to focus rural residential development into suitably zoned land. I find that the applications before me are contrary to the direction sought in the Scheme. The matter of zoning is not open to this review and any revision to the zoning should appropriately occur as part of a strategic process.

36 On the basis of clear policy and zone objectives and guidelines supporting the limitation of residential intrusion into the rural areas and for the reasons outlined above, I conclude that the decisions made by the Responsible Authority should be affirmed. I will direct that no permits be issued.

[1] Contained at Clauses 11.03 Principles of land use and development planning; 12.03 Networks with regional cities; 17.05 Agriculture

[2] Contained at Clauses 21.05-2 Settlement (Rural Living); 21.07 Economic Development (Agriculture);21.08 Environment

[3] At the hearing Mr Ludeman tendered a letter from Mr John Whiting dated 13 September 2006 advising that the review sites are not suitable for viable commercial viticulture. Mr Gilchrist objected to this letter being tendered since no expert was called and there was no opportunity to counter the information provided. I have given this document no weight in the absence of an expert available to question and failure to provide an expert witness statement in accordance with the relevant VCAT Practice Note.

[4] Martin v Surf Coast SC [2006] VCAT 1019 (30 May 2006) Para 30