Mr M Kirby, Town Planner, represented the Responsible Authority.

1 This is an Application for Review pursuant to Section 77 of the Planning and Environment Act 1987 against the decision of Mildura Rural City Council to refuse Application for Permit No. P03/144 for "realignment of boundary (subdivision)".

1. The proposed subdivision is contrary to the objectives of the SPPF and LPPF especially Clauses 17.05 - Agriculture; Clause 21.04-5 - Agriculture and Horticulture; and Clause 22.05-1 Protection of Agricultural and Horticultural Land.

2. The proposed subdivision is contrary to important purposes of Clause 35.01 - Rural Zone.

3. The proposed subdivision will be detrimental to the rural amenity of the area.

4. The proposed subdivision will be detrimental to the on-going rural productivity of the area by creating an opportunity for the introduction of further urban use(s) and/or development into the area.

5. No demonstrable needed for the subdivision to enhance farm productivity has been given.

6. The proposed subdivision will create a precedent for further similar unjustified subdivisions in the area specifically and the municipality generally.

7. The proposed subdivision will be contrary to the sound and proper planning of the area.

3 This application seeks resubdivision of two existing titles, one developed with a house and the other being a remnant sub-minimal Crown Allotment of 1.052 hectares adjoining the eastern boundary of the large title (being Lot 2 of LP 222010A. Both titles are in common ownership and are developed for horticultural purposes. The Applicant states that an identical application was approved by the Council in 2000 (Application No. 00/355) but due to unforeseen circumstances it was not completed, hence this re-application. The Tribunal was advised that the proposal is for the parents to retire and remain in the existing dwelling on the land, with the son to operate the vineyard holding.

4 The subject site is on the western side of the urban edge of Merbein Township. It has two road frontages, the west to Quandong Avenue and the east to Sanders Street. Sanders Street is the western urban growth boundary of the Merbein Township.

5 The site is presently developed with a dwelling and a vineyard plantation. The smaller allotment is integrated with the subject horticultural holding but also provides some area of drying racks. The area is relatively flat and predominantly sown down to vines. The dominant title has already been subject to one excision. The Tribunal was told that a larger title was excised in 1991 (Lot 1 - 2700 square metres approx).

6 There are a number of other residential excisions to the north and across the road to the west (along Quandong Avenue), west of the subject site. Otherwise the area is typical of an irrigated horticultural area sown down to vines.

7 The subject land is zoned Rural and is not subject to an overlay. A permit is required pursuant to Clause 34.01-4 of the Planning Scheme to subdivide land. The Tribunal was told the schedule to the Rural Zone in the Mildura Planning Scheme sets a minimum subdivision area within a gazetted irrigation district of 10 hectares. However Clause 35.01-4 provides exception in a number of cases including the following as an example to this application:

"The subdivision is the re-subdivision of existing lot. The number of lots must not be increased and all lots must be at least 0.4 hectares."

8 In this case the proposed subdivision would result in one lot becoming 0.4134 hectares. It would have an 8 metre frontage to Quandong Avenue and be of a battleaxe shape thereby having the axe handle widening out to dimensions of between 45.09/68 metres and a longitudinal head of 60 metres. Lot 2 is proposed to be 8.531 hectares. The subdivision shows that a parcel of land abutting Sanders Street would be consolidated onto the larger remnant site.

9 There are various planning controls and policies of relevance in this application including:

* Clause 21.03 Vision and Strategic Land Use Framework

* Clause 22.05-1 Protection of Agricultural and Horticultural Land

10 At the review hearing Mr Kirby read from a draft submission but he was unable to provide a written submission due to a computer failure at the Responsible Authority's offices. His submission was subsequently provided to the Tribunal. The Tribunal gave orders that a copy of Mr Kirby's submission be provided to Mr and Mrs Piscioneri and that they be given a further 7 days to respond to the submission having regard to the nature and technicality of the submission and were directed to forward a copy of such response to the Tribunal and the Responsible Authority.

11 The Responsible Authority's submission is best outlined in the conclusion in Mr Kirby's submission which stated:

Approval of this subdivision would further facilitate fragmentation of productive agricultural land. There was no supporting evidence submitted to indicate that the proposed subdivision would enhance the productive rural activity of the property in any way whatsoever. In fact, Council believes that as a result of this resubdivision, there would be a likelihood of long term lesser productive use due to the potential impacts of the location of the existing dwelling.

The appellant, based upon, the very limited grounds of appeal, might be expected to argue that a permit has previously been issued for the subdivision, and that they expect a right to re-align what is their land. They further make note of advise regarding proposed changes to the "rules" regarding subdivision. It is to be noted the previous permit was granted prior to the highly relevant Cummins VCAT case which has been cited in this report. It was the result of this case which enabled Council to realise the intent of the State and Local Policy in its application of the planning scheme, both in the practicality, and also importantly, in the politicallity. This consideration is even included in Council's recent draft Rural zones policy, which in all other regards is a liberal interpretation of the provisions of the planning scheme, further highlighting the consequence of this issue to Council.

The siting of the dwelling provides further potential for land use conflicts by failing to provide a satisfactory level of separation from the horticultural land holding.

Council has demonstrated convincingly how this proposal fails all of Council's relevant policies, the zone provisions, and other important Decision Guidelines.

There is no doubt that approval of the subdivision will send a very poor message to other rural property owners and set an undesirable precedent for further attempts to fragment rural lands especially through the formalisation of lots otherwise of no particular usage, other than through integration with adjoining horticulture. Council's recent attempt to clarify the discretion in Local Policy and the Rural zone identified such an expectation and sought to eliminate this possibility.

The district is crossed by many redundant channel reserves, bisecting properties and creating numerous potential opportunities for like development. If allowed, this type of development has the potential to irreversibly change the nature of the Rural zoned horticultural areas to the detriment of the industry and the district.

Therefore it is respectfully submitted that in the absence of any further information provided to the contrary of the case put forward by Council, that the application for review be disallowed and the Tribunal support Council's decision and direct that no permit be granted.

12 It is also noted that at the commencement of the hearing Mr Kirby had raised concern about the lack of relevant grounds to this application raised by the Piscioneri's. The Tribunal advised the parties that it believed it was expedient if the Tribunal heard the arguments from both parties (and it subsequently directed circulation of the Responsible Authority's submission and further response from the Piscioneri's).

13 Mrs Piscioneri outlined the reasons for contesting the Responsible Authority's decision. These being:

Our grounds for appealing the decision by the Mildura Rural City Council to refuse to grant a permit are based on:

a) A permit to subdivide/realign boundary on our property had been approved on 25.9.00. Due to poor business practice b our Planing Consultant, being Mr Roy Costa, we were not informed, or made aware that we only had 2 years to comply with permit requirements.

b) Upon being made aware of the Permit being expired (in late March 2003 - 6 months over the 2 year Permit requirements - we consulted with Mr Roy Costa and advised him we would like to reapply for the subdivision/realignment of boundary.

c) The Planning Consultant (Mr Roy Costa) advised us that we should have no problem whatsoever in having our application approved as that no laws had changed, and that it met with every by-law and council requirement.

d) On 8th July 2003, we are advised that our application had been rejected. We were totally dissatisfied with and request to be in attendance with Mr Roy Costa and the Director of Mildura Rural City Council, Mr Gary Healy.

e) 11th July 2003, we meet with MRCC Director. He informs us of future changes to laws relating to situations similar to our case.

Our interpretation of this meeting was that - Planning Laws had not changed in the past. Their decision was based on new laws that they would like to change in the future.

Their decision, we believe, should be based on laws that are in force at the time of the application received.

14 The Piscioneri's subsequently forwarded a written response to the Council submission, which in summary claimed;

They had undertaken work to improve the agricultural holding ,including expanding onto the old channel reserve.

The proposed lot would not impact on horticultural practices.

Persons who resided in houses on lot amongst farms accepted a farmers "right to farm".

Whilst the proposed lot was below the size specified in the planning scheme, it was larger than many lots on the area.

Siting of a dwelling on the lot would not cause land use conflicts.

15 Whilst the Tribunal appreciates the disappointment experienced by the Applicants for Review and acknowledges that the Responsible Authority, as recently as September 2000, approved subdivision of this land, however it considers that the Responsible Authority has acted correctly in this instance.

16 It is also noteworthy that Mr Kirby conceded that a permit had been issued and that there has been no change in policy since that earlier decision.

17 Mr Kirby did advise of a proposed amendment to the Planning Scheme to clarify parts of Council policy but that policy, at the time of this review hearing, had not been placed on exhibition nor could it be said to have reached the stage of being considered as a "seriously entertained planning proposal".

18 In this instance Clause 22.05-1 of the Mildura Planning Scheme is fundamental to the Council's reasons for rejection of this application. The policy basis is that the Council is seeking the protection of agricultural land from urban encroachment including small lot subdivision of horticultural properties. Importantly a number of the policy provisions of this clause state:

* Subdivision of land (within a gazetted irrigation district or where a Water Licence has been issued and applied to land for horticultural) in order to provide a lot for an existing or additional dwelling which is not incidental to the use of the land for crop raising, is strongly discouraged.

* The use of rural land for purposes other than agriculture, horticulture, extractive industry, leisure and recreation, mining or natural systems, or uses which support these uses, be strongly discouraged, especially:

- retail type uses on main roads including take away food and convenience facilities and peripheral sales;

- dwellings not directly associated with the use of the land for agriculture or horticulture;

* If a lot is to be created in accordance with the provisions of Clause 35.01-4 which allow subdivision to create a lot for an existing dwelling, the following principles should be applied:

- the minimum size of the lot prior to subdivision should be at least 10 ha;

- no further subdivision should be allowed from the parent lot;

- a note or agreement is to be placed on the title of both the parent lot and the new lot, indicating that they have been the subject of subdivision and that no further subdivision are possible; and

- where possible, the houses on the parent and subdivided lot should use a common accessway/driveway and common services, be located as close as possible so as to achieve a grouping of buildings and sited so as not to require the removal of native vegetation.

20 What this proposed subdivision will do is create a small battleaxe shaped lot to serve an existing dwelling which was previously on the parent title. Whilst an additional 1 hectare of land will be added from a remnant reserve, the quantum of the new lot and the remnant larger lot will still be less than 10 hectares in area. Further, it will allow for the separate disposal of a parcel of land used for a dwelling which will not be directly associated with land used for horticulture or agriculture.

21 The Tribunal is not aware of the circumstances of the September 2000 permit and why the then Council issued a permit contrary to the Local Policy. It may be that the policy had only recently been part of the recently adopted Mildura Planning Scheme and the then Council may have treated the application as a transitional case. But it is clear the Council has applied the policy for some time.

22 During the hearing Mr Kirby referred to a number of Tribunal decisions, including Estate of EMD Cummins v Rural City of Mildura (2000/063271) which upheld the Responsible Authority's decision to refuse a permit for subdivision of rural land. Mr Kirby argued that the Cummins case was an important case because it was determined by the Tribunal about 3 months after the issuance of the earlier permit for the subject site and that since the issuance of the Cummins decision, the Responsible Authority had been far more insistent on compliance with Local Planning Policy and in particular Clause 22.05-1.

23 At the conclusion of the hearing I provided some oral commentary about difficulties for the Applicants in seeking subdivision of a land which did not meet Local Policy and in particular, reference to likely or possible conflicts between residential landholdings and rural landholdings. I suggested that it was undesirable to encourage residential landholding abutting rural landholdings as future conflicts could occur. Having regard to the further comments provided by the Piscioneri's I do not resile from those comments.

24 Mr Piscioneri informed the Tribunal that it was not intented to separate the family landholding and that they intended to continue to farm the remnant parent title. I accept the Piscioneri's are genuine in their intent to retain both, but as I explained at the hearing once the land is subdivided any verbal undertaking about future intent of land is largely meaningless because a persons circumstances can change for one reason or another.

25 I acknowledge the Piscioneri's feel hard done by because the had a permit for subdivision ( which apparently was issued under the same policy criteria), but for one reason or another did not act upon it. However the reasons claimed for failing to act on it do not justify a reversal of the Councils decision. This issue is not about issuing permits on the basis of hardship but rather seeking good planning outcomes of the kind sought by the purposes of the Rural Zone and the policies appearing in the planning scheme.

26 Whilst the Planning Scheme has not changed since the issuance of the earlier permit, the responsible authority's reliance on local policy, and in particular Clause 22.05 has altered (based on this decision, the Cummins decision and similar cases heard by this tribunal member).

27 Accordingly I am not satisfied there has been a good planning argument to refute the Responsible Authority's decision, nor am I satisfied that it demonstrate that the subdivision promotes effective land management practices or advances any of the other purposes of the Rural Zone.