1. Subdivision was still not commenced because of the current drought causing a shortage of irrigation water supply for allocation throughout the Mildura district. The most severe restrictions commenced in the financial year 1 July 2007 to 30 June 2008. The percentage of water allocations has been as follows:

1. The consequence was that farmers had to purchase water allocations - an economic constraint on them. For example, if the farmer is allocated 43%, he has to purchase 57% of his requirement at a cost of $550.00 per megalitre. Twenty acres requires 66 megalitres. Based on the current allocation of 35%, the farmers will need to purchase 42.9 megalitres to produce a crop from the subject land, at a cost of $23,600.00. Their priorities have been to buy water rather than engage land surveyors and pay the cost of subdivision including service authorities' fees.

1. The land is zoned Farming. Clause 35.07-3 desires each lot to be at least ten hectares pursuant to the schedule to the Farming zone (as it is within a gazetted irrigation district). A permit may be granted to create smaller lots if the subdivision is to create a lot for an existing dwelling and the subdivision is a two-lot subdivision (which is the case here). The zone mandates a section 173 agreement on each lot created, ensuring each lot may not be further subdivided so as to create a smaller lot for an existing dwelling.
2. When this subdivision permit was originally granted in 2004 under the then Rural zone, it was not mandatory to impose such a section 173 agreement on the permit. But condition 2 of the subject permit requires a section 173 agreement in any event. Its wording is different to clause 35.07-3 in that it prohibits further subdivision so as to increase the number of lots, but is silent as to the presence of an existing dwelling on either of the lots.
3. Pursuant to section 2 of clause 35.07-1 (table of uses) a dwelling on a lot less than ten hectares in size (which is the case here) is discretionary and should meet the decision guidelines for dwellings under clause 35.07-6.

1. Clause 22.06 applies to all land within the Farming Zone (FZ) and is the current agricultural land policy even though replacement Am C30 is awaiting consideration by the Minister for Planning.
2. This policy recognises that:
   1. Mildura Rural City is nationally and internationally significant in terms of its horticultural output; and
   2. Important in this regard is the protection of agricultural land from urban encroachment including the small lot subdivision of horticultural properties.
3. It is policy that dwellings not directly associated with the use of the land for agriculture or horticulture are strongly discouraged.
4. It is interesting that an exception seems to be made in the case of subdivision to create a lot for an existing dwelling where, inter alia, the following principles should be applied:
   1. the minimum size of the lot prior to subdivision should be at least 10 ha;
   2. no further subdivision should be allowed from the parent lot.

1. A Development Contribution Plan Overlay Schedule 2 applies to the site, applying infrastructure fees for subdivision. Despite this contribution plan, no fees are applicable to resubdivision into the same number of lots. Therefore if I refused this extension and a fresh application for subdivision were made; no condition seeking infrastructure fees would be imposed on a fresh planning permit.
2. The parties and the witnesses in the appeal made both written and verbal submissions, a number of plans, photographs and other documents were tendered to me and remain on the Tribunal's file.
3. Aerial photos clearly show that a house or a dwelling allotment has been excised in the more distant past from a larger parcel of land to which these two subject lots belonged.
4. The responsible authority, in their PN2[2] material and also before me at the hearing, made it clear that if a fresh application were made (if this extension were refused) a permit would be approved as the proposal is supported by the purposes of the Farming zone, the state and local planning framework and relevant policies.

1. Kantor lists the following seven issues to take into account in deciding whether to extend a permit:

(a) whether there has been a change of planning policy;

(b) whether the land owner is seeking to "warehouse" the permit;

(c) intervening circumstances bearing on grant or refusal of the extension;

(e) whether the time limit originally imposed was adequate;

(f) the economic burden imposed on the land owner by the permit; and

(g) the probability of a permit issuing should a fresh application be made.

1. The most critical issues in this case will be the intervening economic considerations and, given the more stringent purposes of the current Farming zone, the probability of a permit issuing should a fresh application be made.

1. Key purposes of the Farming zone are, inter alia, to encourage the retention of productive agricultural land and ensure that non-agricultural uses, particularly dwellings[4] do not adversely affect the use of land for agriculture.

1. In Mapkams[5] Senior Member Horsfall accepted that the unforeseen circumstances of unprecedented water shortages for irrigation allocation and the need to purchase water allocations were an intervening circumstance justifying the extension of a subdivision permit.
2. Senior Member Horsfall considered that the depletion of the permit holder's resources in order to buy a water allocation was a reasonable explanation for the economic constraint of paying for surveying fees, council certification and Titles Office fees and referral authorities' fees.
3. I make no further comment on this factor, as my decision turns on other reasons.

Would a fresh permit be issued under the present planning controls?

1. Ms Shaw, council's planning officer, has explained that a fresh planning permit would still be granted for this particular subdivision layout, because it is not inconsistent with the change in planning controls. Their attitude was also expressed in the Planning and Environment List Practice Note No. 2 material. Their reasons follow.
2. Firstly, an existing permit condition already imposes a section 173 agreement constraint.
3. Secondly, on the facts of this case, there are no relevant fees under the new development contribution plan overlay.
4. Thirdly, after excising the house onto its own 0.4 hectare lot, the increase in size of the large remnant lot to 7½ hectares (from two separate lots of four hectares each) is a benefit to agriculture by agglomerating land parcels pursuant to the decision guidelines of clause 35.07-6.
5. Fourthly, agricultural land policy at clause 22.06 seems to make an exception in the case of subdivision to create a lot for an existing dwelling, although I concede the total lot size here is less than the expressed 10ha.
6. Although an application can be made for a new dwelling on the larger remnant lot, there no guarantee that a permit will be granted, and it must not be assumed that a permit would be granted.
7. The planning officers must apply the decision guidelines under clause 35.07-6; in particular is the dwelling reasonably required for the operation of agricultural activity conducted on the land? Other factors will be whether the dwelling will be adversely affected by, or will it adversely affect, agricultural activities on adjacent land (due to dust, noise, odour, use of chemicals and farm machinery, traffic and hours of operation).
8. If any proposed dwelling is not required for the operation of agricultural activity conducted on the land, then policy is clearly against the grant of a dwelling permit.

1. Council reminded me of my decision in Hill[6] where I refused a third extension of a planning permit for a new dwelling on land zoned Farming because, inter alia, the dwelling might result in alienation of that land from multiple farm holdings used for agriculture, contrary to the purposes of the Farming zone.
2. I distinguish Hill because this case does not involve the construction of a new dwelling in the Farming zone but instead the excision of an existing dwelling.
3. I also distinguish Capogreco[7]. Senior Member Horsfall refused an extension for a two-lot re-subdivision because, despite the existence of a dwelling on one of the lots, the size of the proposed lots barely differed to the size of the existing lots. The existing lots were Lot 1 (3.277 ha) containing a dwelling sheds and vineyard, and Lot 2 (11.47 ha) containing a vineyard and shed. The proposed lots were Lot 1 (2.267 ha) to contain the existing dwelling and shed) and Lot 2 (12.432 ha) containing more of the vineyard. This proved that the re-subdivision did not support the Farming Zone policy of enhancing agricultural production by agglomerating land parcels.
4. I follow Waddleton[8] where the only result of the subdivision was to include a driveway presently on lot 2 onto lot 1 for access; the subdivision not resulting in any of the results discouraged by the Farming Zone. There was no increase in the potential for an additional dwelling to be located on a new small vacant allotment and no land was removed from agricultural production.

1. Warehousing permits is not the ideal, as explained in 12 Fitzroy Street St Kilda Pty Ltd[10], but it does not sound an automatic death knell. It is one of the issues to be considered.

The purpose of limiting the life of permits is so that they will not survive unacted upon until they are revived after they have become inappropriate due to changes in circumstances. Such changes might be changes in the nature of the land and locality so that the proposal is no longer appropriate. The other sorts of changes referred to in the authorities is where planning policies have changed or planning scheme provisions have changed so that the proposal has become undesirable or contrary to current policies or, indeed, prohibited.

1. There is no reason whatsoever for me to refuse this third extension of subdivision permit since:
   1. this extension of time agglomerates agricultural land into a larger parcel consistent with the purposes of the Farming zone;
   2. this extension of time does not automatically generate a new rural-residential dwelling which might conflict with the purposes of the Farming zone;
   3. the permit already contains the section 173 agreement constraint on further subdivision;
   4. the permit does not avoid any infrastructure fees under the current development contribution plan overlay; and
   5. council officers advise they would grant a fresh permit.

[1] Jackson v Mildura Rural City Council P3638/2008.

[2] Planning and Environment List Practice Note No. 2

[3] Kantor and Anor v Murrindindi Shire Council (1997) 18 AATR 285

[5] Mapkams Pty Ltd v Mildura Rural City Council [2008] VCAT 2609

[6] Hill v Surf Coast Shire Council [2008] VCAT 1082

[7]Capogreco v Mildura Rural City Council [2008] VCAT 2593

[8] Waddleton9 v Mildura Rural City Council [2008] VCAT 2624

[10] 12 Fitzroy Street St Kilda Pty Ltd v Port Phillip City Council 3 VPR 103 @ para 22