Pulis v Macedon Ranges SC [2012] VCAT 1457

1. The decision of the Responsible Authority is affirmed.
2. In permit application 2110012 no permit is granted.

Mr Joseph Monaghan, solicitor from Russel Kennedy. He called the following witnesses:

• Mr Paul Williams, a hydrogeologist of Paul Williams and Associates Pty Ltd.
• Mr Rob Viney, a town planner

Ms Lisa Laskovski, a town planner from Macedon Ranges Shire Council.

Mr Neil Repacholi, an officer of Goulburn Murray Water

Mr Anthony De Pasquale, a town planner from Glossop Town Planning. He called the following witness:

The permit application is for the use and development of the land with a four bedroom dwelling.

Review of a failure to make a decision within the prescribed time pursuant to Section 79 Planning and Environment Act 1987.

Zone and Overlays applying under the Macedon Ranges Planning Scheme

Environmental Significance Overlay (Clause 42.01 and Schedule 4)

Use and development of the land in a Farming Zone (Clauses 35.07-1 and 35.07-4) and building and works in an ESO (Clause 42.01-2 and Clause 3 of Schedule 4).

1. Mr and Mrs Pulis own a 17ha rural property on the outskirts of Kyneton. They use this property to graze Angus cattle while living in Kyneton. They would like to live on the property to support their plans to breed these cattle and raise vealer calves. They sought a planning permit from Macedon Ranges Shire Council for the dwelling as required under the Farming Zone and Environmental Significance Overlay that apply to their land.
2. The Council failed to make a decisions within the specified time and the Pulis's now seek a review of that failure.
3. The Council advises that having now considered the application, it would not support the grant of a permit for the dwelling. The Council believes that the use of the land for a dwelling is contrary to the purposes of the Farming Zone and to a range of planning policy about the use and development of agricultural land.
4. The Pulis land is located in the declared open water supply catchment of Lake Eppalock which is the subject of the Environmental Significance Overlay that applies to the land. This ESO addresses water quality issues in this catchment.
5. The application was referred to the manager of Lake Eppalock, Goulburn Murray Water. Initially GMW did not object to the grant of a permit for the dwelling. However on review of another proceeding by the Tribunal,[1] GMW revised its position. It advises that it does not support the grant of a permit because Eppalock is a source of potable water supply to Bendigo and Heathcote. GMW considers that a dwelling on the Pulis property would not comply with guidelines applicable to a potable water supply catchment and therefore presents an unacceptable level of risk to potable water supply quality.
6. At the direction of the Tribunal the application was referred to Coliban Water. This authority is responsible for drawing, treating and distributing water from Eppalock to Bendigo and Heathcote. It raises the same concerns about water quality impacts as GMW.
7. The Tribunal must therefore decide whether the dwelling:
   • Presents an unacceptable risk to water quality through the intensification of residential land use and on-site wastewater treatment and disposal?
   • Has a reasonable nexus with the agriculture enterprises proposed for the land or will it fragment agricultural land by extending rural living into farming land or otherwise be contrary to policy and the purposes of the Farming Zone?

1. The subject land is located on the northern outskirts of the regional town of Kyneton. It is one of seven similarly sized lots of 16 to 17 hectares to the immediate north of the urban boundary of Kyneton. Beyond these seven lots, is a series of smaller sized lots,[2] several of which contain dwellings.
2. Three of the lots to the north of the Pulis property contain dwellings. To the south are two vacant lots, the immediately neighbouring lot being in the Farming Zone. The southern most lot is associated with the land that is zoned Public Use and forms part of the Kyneton wastewater treatment plant. To the west of this facility is Kyneton airfield.
3. The eastern boundary of the Pulis land is Redesdale Road, beyond which are a number of small properties (of 5hectares or less) developed with a variety of dwellings and sheds. This land is also zoned Farming. Further east is a Rural Living Zone with dwellings occupying even smaller lots, while to the south-east is Public Park and Recreation zoned land.
4. To the west of the Pulis property are a variety of lots. This land is less intensively developed with dwellings. Mr Viney identifies this land as being used for broad acre farming enterprises.
5. The land use in and around the Pulis property is thus a mix of livestock grazing, horse keeping and crop raising (a small grove being present on a property to the north-east). It would be difficult to characterise the land use into any one description. It would be fair to say that there is a mix of agricultural and rural lifestyle uses occurring. Such context is argued by the Pulis's to weigh in favour of their application, a matter I address later in these reasons.
6. The Pulis land itself comprises of an almost rectangular lot of approximately 16.8ha. It has a frontage of 210m to Redesdale Road and an average depth of approximately 800m. A drainage easement, marking the course of an unnamed creek bisects the property from south to north. A smaller drainage line cuts obliquely across the land and feeds into a dam located some 250m from the eastern boundary of the property. Overflow from the dam passes further westward along a poorly defined path to join into the creek line to the west. These drainage lines form part of the wider tributary network of the Campaspe River that feeds Lake Eppalock some 30km to the north as the crow flies.[3]
7. A range of improvements and works have occurred on the Pulis property. The eastern most drainage line has been fenced to keep stock out and trees planted along the banks. The dam has also been fenced to prevent direct stock access. Crossings over the waterways have been reconstructed to enable cattle to cross without encroaching on the banks. A shed is present for the storage of fodder and farming equipment. A bore is located near the shed for additional stock and domestic water supply

1. A purpose of an ESO is to identify land that may be constrained in its development by its environmental values.[4] Another purpose is to implement planning policy frameworks relevant to the identified environmental values.
2. It is common ground that the property is located in the Lake Eppalock declared potable water supply catchment. The identified environmental value of this land is its position within and contribution to water quality in this catchment. Schedule 4 of the ESO is applied to 'ensure the protection and maintenance of water quality and water yield'[5] of this catchment.
3. State and local planning policy frameworks identify similar issues and seek similar outcomes.[6] The application of the ESO to this and other catchments throughout the shire is seen as one of several strategically supported means of addressing water quality requirements through land use planning.
4. There is no dispute between the parties about the primacy given under policy for water quality protection in potable water catchments and the strategic support of the ESO's purposes.
5. What is in contention with this application turns on whether or not the Code of Practice - Onsite Wastewater Management[7] and the Guidelines for planning permit applications in open, potable water supply catchment areas[8] are, or can be satisfied, by the proposed use and development of the land with a dwelling.[9]
6. Mr and Mrs Pulis rely on the expertise of Mr Williams and his land capability assessment to address matters relevant to the Code of Practice and the Catchment Guidelines. Coliban Water relies on the expertise of Mr Ford.
7. From their respective evidence in chief and from responses under cross-examination, the following conclusions or findings can be made about some specific aspects relevant to these water quality issues.
   • Water quality risks:
     • The primary human health risk to potable water supply is from human pathogens.
     • The prime risk from the wastewater treatment systems is from failures rather than routine, normal operations. Appropriate buffers may ameliorate human pathogen risks in the event of system failures by providing long detention times in the soil environment that work to reduce pathogen numbers.
     • The more complicated a system or the more complex its management the higher the degree of risk of system failure and potential for impact.
     • Management of catchment impacts on water quality form one step in the multiple barrier approach in the protection of potable water supply required under the Australian Water Quality Guidelines (AWQ guidelines) referred to by Mr Ford.
   • Buffer distances:
     • The purpose of a buffer distance, as measured from the wastewater system[10] and a water course, is to address residual risks arising from a system failure.
     • If some specific requirements could be met by this proposal, the recommended buffer distance of 100m from a watercourse in a potable water supply catchment could be reduced. However the Code of Practice leaves this decision to the Council (as the decision maker) based on the balance between the residual risk and public health.
     • The location of this dwelling within a potable water supply catchment leads to a requirements for the highest possible protection of public health and therefore there should be no reduction in the 100m buffer distance in order to address the residual risk arising from system failures. Consequently all components of the wastewater system including all internal dwelling fixtures, piping, treatment plant and disposal fields need to be located at least 100m from the nearest watercourse in order to comply with the Code of Practice.
   • Dispersal of treated wastewater:
     • An adequately sized disposal field with an appropriate means of dispersal of wastewater is required to address the site soils that have relatively poor drainage or low permeability.
     • The disposal fields need to be sized to accommodate water loads and nutrient loads. This can be accommodated on the site.
     • The use of a mound system rather than just an in-situ, subsoil pressure drip system recommended by Mr Williams, would add another treatment step in the management of wastewater, consistent with a multi-barrier approach.
8. The two experts agree that the subject site is flat and there is low risk of overland flow into the nearest waterway that could short circuit the 100m buffer if subsurface irrigation of wastewater occurs. Save for some design details about what form the disposal field should take, as set above, they agree that the size necessary for dispersal of the projected water and nutrient loads could be accommodated on the site.
9. Mr Ford agrees that if his concerns about the design of the disposal field were addressed and the location of the dwelling refined so that all components of the wastewater system were outside a 100m buffer, then the incremental risk to water quality might be so small as to be inconsequential. In such circumstances, he agrees that the intent of the Catchment Guidelines could be met not withstanding that the 'rule of thumb' density adopted under the Catchment Guidelines to address cumulative risk of one dwelling per 40 hectares would not be achieved.

1. Having so considered this and other evidence from Messrs Ford and Williams, I accept that a wastewater treatment system could be established on the Pulis property that meets all the necessary requirements of the Code of Practice. However I am not persuaded that the proposed dwelling location shown on the current application plans provides for the 100m buffer required under the Code of Practice from the nearest watercourse (i.e. the eastern drainage line).
2. Mr Williams has prepared a scaled plan to indicate the 100m buffer would leave room within the building envelope to contain a re-orientated dwelling. The dimensions of the envelope and its location generally match those plans provided with the application dated 12 January 2011 prepared by Keith Altman & Associates. Having reasonable agreement of such scale however leads to the disquieting finding that when the purported 100m buffer line is scaled back to the watercourse, the actual buffer distance is between 80m to 85m. Similarly, scaling of the 100m buffer on the Keith Altman plan identifies that the dwelling cannot be accommodated within the envelope.
3. I conclude from these plans therefore that Mr Williams is in error and that once a 100m buffer is applied from the eastern watercourse, there is insufficient room for the re-orientation of the dwelling that is proposed under this application so that it is outside this buffer.
4. While it may be that other sites within this land may be available for a dwelling, it is not for the Tribunal to redesign this application to accommodate identified problems of this magnitude. Consequential matters might arise from a relocation of the proposed dwelling, such as the need for vegetation removal or avoidance of more productive agricultural land as identified by Mr Viney.
5. In any event, while the specific's about its location on the lot may go to addressing some relevant matters under the Code of Practice, that is not the whole of the considerations about such a use. There are wider issues that go to the use per se.
6. One of the wider issues is about the overall impact of activities on this land on water quality. Evidence led or adduced from the two experts is that the agricultural enterprises could be managed along with other land management steps to address wider water quality issues. This could include fencing of waterways and the dam, maintenance of grassed and treed verges and corridors and removal of stock access to the water courses and dam. Indeed submissions were made and photographs produced to demonstrate that many of these management steps have been undertaken by Mr and Mrs Pulis.

1. The above matters lead me to consider how this proposal responds to the Catchment Guidelines. The Catchment Guidelines contain five 'guidelines' and sets out that:

Each of these guidelines must be addressed where a planning permit is required to use land for a dwelling.

1. The five guidelines address density of development, effluent disposal and system maintenance, waterway corridor management, buildings and works and agricultural activity management. They are cumulative and each must be satisfied in order for the proposed dwelling to be consistent with this guideline.
2. The evidence, as heard and summarised above leads me to conclude that Guideline 3 (vegetated corridors and buffers), Guideline 4 (works) and Guideline 5 (agricultural activities) are satisfied by the proposal as it stands.
3. Guideline 2 (effluent disposal and septic tank maintenance) seeks compliance with the Code of Practice. The failure of this proposal to achieve a 100m setback of the septic system (as defined under the EP Act) consistent with the Code of Practice means in turn that this Guideline has not been satisfied. I recognise however that this could, under a revised scheme be rectified. However as I have stated it is not for this Tribunal to perform this rectification.
4. The outstanding matter and one which consumed much of the evidence and submissions, is the issue of dwelling density within the catchment.
5. The guidance on dwelling density is understood to be a means by which the incremental or cumulative risk arising from the use of septic tank or wastewater systems within the catchment can be addressed. As such, the application of the density target of one dwelling per 40 hectares is understood as being applied to unsewered dwellings.[11]
6. Various points of view were put about whether the measurements of density should be within a one kilometre radius of the proposed dwelling site as per the water authority's approach or at a catchment scale.
7. Mr Williams favours a catchment wide density calculation because the guideline is dealing with a catchment wide issue. Mr Ford relies on the one kilometre radius approach because it has a focus at the local scale and local assessment of the cumulative risk.
8. Both experts consider that the distance to Lake Eppalock, essentially taken to be the point of use for off take and treatment of potable water supply forms part of the input into the assessment of risk. Mr Ford was prepared to accept that the distance of the Pulis land from Lake Eppalock could have some unspecified mitigation on the level of risk.
9. While Mr Ford is unaware of what uses and quality issues confront Lake Eppalock, Mr Williams highlighted that ESO4 and other material did not identify septic tanks as a specific issue in the catchment. His evidence is that it is other water quality issues, as advanced by GMW, about sediment and nutrients, that are an issue and not human pathogens. This was said to be further emphasised by the fact that Lake Eppalock while providing potable water supplies, remained open for recreational use. It is put that such activity presents a higher level of risk for dispersal of human pathogens into the water supply than the incremental increase of risk represented by this proposal.
10. This evidence about distance from, and other uses of the storage, misses the point about Guideline 1.
11. Guideline 1 seeks to address the risk of human activity within the catchment as measured by the density of dwellings (or the related intensity of land subdivision). The sort of evidence advanced by Mr Williams about flow distances, sources of contamination and the other activities undertaken within the storage or its catchment are elements or matters that one might consider in the assessment of water quality risk. Indeed the approach adopted under Guideline 1 recognises that such a risk assessment on a catchment wide basis would be one means by which to adopt a different density of development. However such an assessment needs to be a systematic catchment wide assessment of 'land use planning issues and the cumulative impact of onsite waste water/septic tank systems has been prepared for the catchment'. The guidelines also require that the outcomes of such an assessment must inform 'the objectives, strategies and requirements' of a catchment management plan (or similar) prepared and incorporated into the planning scheme'
12. No such systematic development of a catchment management plan (or project) has been prepared for this catchment nor has one informed any plan incorporated into the planning scheme. The evidence advanced by Mr Williams was to a large degree given on the basis of his understanding of catchment issues rather than a systematic assessment. Therefore I give the evidence about flow paths and the like little weight.
13. It is fair to say however that the Catchment Guidelines have been of significant weight in a number of Tribunal decision in land use and development applications similar to this.[12] The essence of the submission for the Pulis' is that too much weight has been given over to these guidelines, particularly Guideline 1 and the one dwelling per 40 hectare density target. It is submitted that the Catchment Guidelines are but one part of a policy matrix and that in any event, as guidelines, they are not mandatory.
14. In this respect it is highlighted that Guideline 1 is not couched in mandatory terms, i.e.:

...the density of dwellings should be no greater than one dwelling per 40 hectares...

1. It is true that the Guideline is just that, a guideline. As such it does not form a mandatory rule and as per Mr Monaghan's references to various text on administrative law,[13] this guideline is a form of policy guidance that is to take into account the context of this application. Similarly in statutory terminology, the density guideline is not mandatory, the density of one dwelling 'should' rather than 'must' be no greater than one dwelling.
2. That said, I reject the implied notion that the Catchment Guidelines are mere 'informal policy'. Nor is it a general or abstract guideline. The purposes of this guideline are clear and by way of 60(1A)(g) of the Planning and Environment Act 1987 it has the force of a policy adopted by the Minister for Planning.
3. Within the statutory framework of planning decision making, this policy adds to the weight of state and local policy frameworks and the purposes of ESO4. It identifies a means by which these planning policies and the purposes of the EOS can be achieved. Together this bundle of policy and planning provisions set out a consistent directive to ensure that land use and development within potable water catchments protect and maintains water quality. Achieving a density of one dwelling per 40ha in a potable water supply catchment is a clear means of achieving this outcome in the absence of any other systematic catchment wide assessment of 'land use planning issues and cumulative impacts from...septic tank systems'.
4. Further, in considering the weight and intent of the planning framework, a point was raised that unlike the Rozen matters, where the primary purpose of the land was established through the Rural Conservation Zone and hence the protection of water quality, this site is subject to the Farming Zone. While this is true, it is also true that the purposes of the Farming Zone do not promote the use of the land for a dwelling. The primary purposes are to support agriculture and to 'protect and enhance natural resources'. Potable water supply is a natural resource. The purposes of the Farming Zone thus lend further to the weight to be given the Catchment Guidelines.
5. Conversely there is no imperative to support a dwelling land use under the purposes of the Farming Zone. Indeed, a case against such a use form the basis of the Council's grounds for opposing the grant of a permit.
6. Thus I find that the combination of the zoning, strategic planning policy and the state and local planning policies weigh against allowing a land use on the site that presents a risk to water quality. The Catchment Guideline provides added emphasis to the need to be more vigilant to the cumulative risk to potable water quality, however incrementally small that risk may be, in accord with the precautionary principles, as set out under this guideline.

Does the proposal satisfactorily address water quality risks?

1. The expert evidence about buffers and other compliance with the Code of Practice, leads Messrs Ford and Williams to agree that if certain design elements for the collection, treatment and dispersal of wastewater can be met, the intent of the Catchment Guidelines and other planning objectives to protect water quality could be achieved. This agreement should only be taken as far as addressing Guideline 2 of the Catchment Guidelines for the reasons I have set out earlier.
2. In terms of meeting the Code of Practice and Guideline 2 however, I find that the proposal before me is unsatisfactory because the proposed location of the dwelling does not achieve the 100m buffer setback from the nearest watercourse. Accordingly the proposal presents an unacceptable risk to water quality.
3. Even if it were, and I concede may be possible, under a revised proposal to locate the dwelling outside the 100m buffer, the location of a dwelling would need to address the requirements of Guideline 1. In this respect, even if I were to entertain a more catchment wide estimate of density, Mr Williams' evidence about low overall densities has little weight in view of the speculative nature of his estimates.
4. Mr Ford's evidence based on the local density levels of dwellings is preferred. His evidence is that the current density of dwellings within one kilometre of this site is approximately one per 17 hectares. The Pulis dwelling would result in a figure of one dwelling per 16.5 hectares.
5. Mr Ford concedes that if the dwelling was relocated to the western end of the property, then his calculation of dwelling density is likely to be lower and meet the one dwelling per 40 hectares. This is largely due to the lower density of development to the west. However for reasons related to agricultural land use, I am not persuaded that this is an appropriate outcome, being located on what Mr Viney agrees is the more productive land of the Pulis property.[14]
6. This conflict between the productive use of the land and its use for a dwelling only serves to highlight the constraints that apply to this property. This application has failed to recognise these constraints and so brings it into conflict with what are important planning outcomes for the protection of potable water quality and agricultural land use.
7. In respect to the water quality issues and risks to potable water supply, it follows from what I have set out that the failure to respond to Guidelines 1 and 2 of the Catchment Guidelines and the failure to accommodate a 100m buffer in accord with the Code of Practice weigh against the granting of approval for a dwelling. Put simply it has failed to demonstrate that the water quality risks it posed by this proposed dwelling have been adequately dealt with.

1. Because the Pulis property is less than 40ha, a permit is required for use of the land as a dwelling.[15]
2. As I have set out earlier, the purposes of the Farming Zone includes implementing state and local planning policy frameworks, supporting agricultural use of the land and protecting natural resources. Apart from being a section 2 permit required use, if a dwelling is proposed on a lot that is less than 40ha, an application is required to address a number of requirements and mattes arising from the decision guidelines specified under the zone provisions. Relevant to this application are the following matters:
   • Whether the dwelling will result in the loss or fragmentation of productive agricultural land.
   • Whether the dwelling is reasonably required for the operation of the agricultural activity conducted on the land.

• The potential for the proposal to lead to a concentration or proliferation of dwellings in the area and the impact of this on the use of the land for agriculture.

1. Apart from the zone requirements, State planning policy seeks to '...protect productive farmland which is of strategic significance in the local or regional context'.[16] Under the Macedon Ranges MSS,[17] agricultural land is identified as an economically valuable resource which is under threat from amongst other impacts development demand on the edges of town.[18] Local planning policy draws together a number of agricultural land use themes and identifies that for this land, lying as it does in the northern catchments area, is important because of it water resources values and support for agricultural output that is important to the shire's economy. Such benefits are identified as being under threat from unrelated residential land uses on such land and fragmentation of agricultural land.[19]
2. The Pulis property lies in an area identified under local planning policy as Agricultural Landscape Area 1.[20] The vision for this and other agricultural landscape policy areas is for this land to form '... a productive, broad acre farming area'. To attain this vision, policy seeks to retain the areas under this policy for agricultural use, protect such use from other land use threats and protect the associated agricultural landscape. Amongst other policy guidance in support of the vision and objectives are directions that go to the heart of the issues in this application, namely:
   • Council will only grant a permit for ....construction of a dwelling where it can be demonstrated that it is required to facilitate or enhance the ongoing primary use of the land for productive, sustainable agriculture.
   • The productive agricultural activity must be the primary use of the land and any residential activity must be secondary or ancillary.
   • In siting and design of buildings, consideration must be given to protection and enhancement of the agricultural landscape.
   • Council will not support a change in land use that is contrary to the vision for the area.
3. To support an application under this policy 'a whole farm' is required along with a report detailing amongst other matters:

How the land is to be used for sustainable, productive agriculture, including details of the proposed stock or crop, stocking rates, type and location of fencing, paddock rotations, pasture species, weed control and other management activities.

1. The Council submits that the application has failed to address the purposes of the zone, the decision guidelines, these policy requirements and failed to present a report of sufficient detail about how the agricultural enterprise will be managed. It is submitted that permitting a dwelling on the land will be contrary to the zone and these policies.
2. In response to zone and policy matters raised in the Council's grounds, the Pulis's case is that:
   • A dwelling will enable more productive agricultural use of the land because it will enable them to undertake cattle breeding activities not just grazing.
   • Cattle breeding will require more intensive management and hence justifies a 24 hour, seven day a week presence on the land thereby justifying the need for a dwelling.
   • Ongoing agricultural use of the land will entail ongoing beneficial environmental management of the land.
   • Locating a dwelling on the existing small lot does not fragment farming land because agricultural activities will continue, the land is already in small lots and it has too high a value to be incorporated into a larger farming enterprise solely as farming land.
3. In essence the Pulis' case amounts to this:
   • The dwelling will support, indeed is necessary for them to undertake more intensive agricultural use of the land; and
   • The horse has already bolted in terms of fragmentation of agricultural land.
4. The difficulty of course with the 'horse has bolted' argument is that there is no point as to where one might draw the line. It can be readily seen that accepting the 'horse has bolted' would be tantamount to allowing incremental spread of lifestyle land use outward into bona-fide farming land.
5. In any event, I do not accept that the horse has bolted in terms of surrounding land use. I agree that on the eastern side of Redesdale Road, numerous small lots have been developed for what are lifestyle and small farm activities. However this intensity of development has not occurred on the west side of the road. In fact one can discern lesser intensity of development at the immediate interface with the Kyneton township boundary on the west side signals a clear change in land use. Not withstanding some dispersed settlement further to the north, to allow more dwellings to populate this side of the road would repeat the pattern of the east side. The result would be a blurring of the town's urban edge and yet another incremental step in the movement of residential use outside the urban area and into the agricultural landscape. State and local planning policy clearly seeks to avoid this.
6. Turning to the other tests I have set out above, this proposal needs to demonstrate a legitimate need in support of the agricultural activity being undertaken on the land.
7. Mr Viney's evidence is that the Mr and Mrs Pulis currently run a small grazing enterprise based on four to six head of cattle. The intention is to more intensively manage a herd of possibly six to eight head for breeding and vealer calf raising. Mr Viney's evidence goes on to justify that this more intensive agricultural enterprise will require a higher level of stock and general farm management than grazing and so a 24 hour presence is needed. A dwelling is therefore justified on the basis of the more intensive agricultural use and higher level of management.
8. It is evident that Mr and Mrs Pulis use the land for grazing of a small herd of cattle. I also do not question their bona-fides about wanting to conduct a breeding enterprise. However for the following reasons I agree with the Council that the application has failed to justify why this change in agricultural use requires a dwelling.
9. Mr Viney's evidence seeks to justify the need for a dwelling on the basis of 24 hour presence being required on the land for security, stock and herd breeding management reasons. It may be true that a breeding herd requires more management than a grazing herd, however the assertions that 24 hour presence is required lacks veracity and weight when it is conceded that:
   • Mr and Mrs Pulis have other employment that does not tally with their purported need for a 24 hour presence on the farm;
   • Mr and Mrs Pulis presently live only 10 to 12 minutes drive from the property and therefore any short or longer term need to attend the property on a daily basis is not an onerous requirement; and
   • Many of the so termed stock management and property security issues raised for a breeding herd are just as applicable to a grazing herd, the operation of which has been conducted apparently with success while living remotely from the site by Mr and Mrs Pulis.
10. Further while I agree with the Council that the Farm Management Plan submitted with the application is light on substance, those activities that are identified as being necessary to support the breeding herd do not carry any imperative for a 24 hour presence on the site. Indeed many of the activities are seasonal rather than daily requirements and are consistent with general stock grazing and farmland management. Apart from the need to monitor cattle in late stages of pregnancy other aspects of breeding management appear to have no imperative for an ongoing 24 hour presence.
11. Apart from having to have a substantive connection or need to support the agricultural enterprises on the land, policy and the zone decision guidelines call for consideration on issue about the dwelling use being subsidiary to the agricultural use and the impact on the agricultural landscape.
12. The scale of the agricultural enterprise is small. As the Council helpfully and concisely puts it the dwelling '...will not support a substantial agricultural use but will simply be occupied by someone who runs a small scale agricultural enterprise'. The dwelling is not a use that will be secondary to or ancillary to the use. Rather it is a use of the land that in many ways will have equal if not more dominance over the agricultural use, being the primary place of residence for people who only undertake agricultural pursuits on a part time basis. In other aspects, the dwelling will convert the land into defacto residential land.
13. Finally, it follows from what I have observed about the pattern of subdivision and development in this area, that west of Redesdale Road, the lesser intensity of dwelling development has retained some agricultural landscape value. To allow a use of the land which would at worst dominates the agricultural use or at best diminishes this use within an where policy seeks to retain an agricultural landscape would corrode this value further and be counter to this local policy objective. In affect it would form an incremental repeat of the poor outcome observed on the east side of Redesdale Road and to that to the north. Policy requires a line in the sand, the drawing of which weighs against this proposal.

1. It follows from the above reasons that the proposal for a dwelling on this land is not supported when regard is had to the applicable planning controls of the Farming Zone and Environmental Significance Overlay and the relevant planning policy. In short the proposed use and development of the land for a dwelling would be counter to the purposes of water quality management in this potable water supply catchment and it would be counter to the outcomes sought for agricultural land.
2. For these reasons I will uphold the decision of the Responsible Authority and direct that no permit be granted.

[1] Simpson v Ballarat CC (includes Summary) (Red Dot) [2012] VCAT 133

[2] Located on the south-west corner of Red Hill and Redesdale Roads.

[3] As measured from the centre of the Pulis property to the tail-water end of Lake Eppalock.

[5] Clause 2 of Schedule 4 to Clause 42.01.

[6] Clauses 14.02-1, 21.03, 22.03 and 22.19.

[7] Publication 891.2, December 2008, Environment Protection Authority.

[8] Department of Planning and Community Development , 2009.

[9] Both these guidelines are referred to under state and local policy and the Code of Practice is an incorporated document under the Scheme.

[10] As defined in the section 53J of the Environment Protection Act 1970, a septic tank system includes all forms of wastewater systems, fitting, pipes and the disposal area and its infrastructure.

[11] I make this point because much was made about how it is that the density is to be determined and whether or not it should include town dwellings on reticulated sewer.

[12] Western Water v Rozen and Anor (2008) 24 VR, [2008] 133 VSC 382; Rozen v Macedon Ranges SC (includes Summary) (Red Dot) [2009] VCAT 2746; Rozen v Macedon Ranges Shire Council & Anor [2010] VSC 583; Simpson v Ballarat CC (includes Summary) (Red Dot) [2012] VCAT 133.

[13] Various passages were referred to from Douglas and Jones's Administrative Law, 4th ed, The Federation Press.

[14] In order to maintain the productivity of the property, it is Mr Viney's evidence that the dwelling has been sited (and should be maintained) in the less productive treed portion of the land.