1. Mr Forbes who carried out a land capability assessment of the subject site (assessed at between 4, poor and 5, very poor) described the subject land as being dominated by steep terrain (which is untractorable) and skeletal soils, which are prone to erosion especially if grazed. The land has little value or potential for agricultural production, and has a high risk of erosion if used as such. There is insufficient water storage that exists on the site to sustain stock in any continuous way. This is in contrast to the land opposite on the north-western side of Banksdale Road which is tractorable and arable with an extensive vineyard to the immediate north.
2. The purpose of the Farming Zone is:
   • 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 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 comprehensive and sustainable management practices and infrastructure provision.
   • To protect and enhance natural resources and the biodiversity of the area.
3. The decision guidelines relating to dwellings under the Farming Zone are:
   • 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.
   • Whether the dwelling will be adversely affected by agricultural activities on adjacent and nearby land due to dust, noise, odour, use of chemicals and farm machinery, traffic and hours of operation.
   • Whether the dwelling will adversely affect the operation and expansion of adjoining and nearby agricultural uses.
4. The purpose of the Wildfire Management Overlay is:
   • To ensure that development which is likely to increase the number of people in the overlay area:
     • Satisfies the specified fire protection objectives.
     • Does not significantly increase the threat to life and surrounding property from wildfire.
   • To detail the minimum fire protection outcomes that will assist to protect life and property from the threat of wildfire.
5. The application was referred to the Country Fire Authority (CFA) who indicated they had no objection to the application subject to specified conditions which related to water supply, access and vegetation management requirements. The applicant on the lodging of the application advised they were able to fully comply with the requirements of the CFA "because the house site is on open ground without surrounding trees, only 20m from an all season road which provides access to 11 other existing dwellings. As a fully insured, weekend dwelling, the house also will not introduce additional fire danger as our fire plans, enacted in 2007, is not to defend and to stay away in case of severe or higher fire danger warning. In addition the materials and rammed earth construction techniques proposed for the dwelling represent proven best practice design solutions for building in wild fire prone areas".
6. The proposed dwelling is not intended to be used to support an agricultural activity on the land. Based on the evidence provided by Mr Forbes I conclude that the land has minimal agricultural value and a dwelling on the land will not result in productive agricultural land being removed from production. Nor is the land being fragmented from agricultural production. The cleared area of the land is 0.9ha and apart from the olive trees planted on the land, which are to be retained, no other agricultural use of the land is evident. Given also the condition of the nearby land abutting to the east, west and south which has been described as similar to the subject land and of virtually no agricultural capacity, it is not expected that the subject land would be incorporated into any of the abutting land to contribute to the agricultural use of these areas. It was also evident that land further to the east which formed part of the vineyard was not used as such indicating the unsuitability of the land along this side of Banksdale Road to be used for agricultural purposes.
7. The condition of the subject land is at odds with the polices within the planning scheme that seek to protect agricultural land but do not say anything about land that is not usable for agricultural activities[2]. The Responsible Authority referred to its Draft Rural Land Strategy which is currently out for community consultation. This document clearly as do the policies within the planning scheme, aim to protect and promote agriculture within the municipality. Such policies have little application to the land in the condition of the subject land.
8. Whilst one of the assessments is to consider whether a dwelling will support an agricultural activity on land when land cannot itself support an agricultural activity then this particular assessment is of little assistance. As stated in Lovrecic v Hepburn SC[3] 'the proposed dwelling is neither necessary to, or would, enhance agricultural production on the land'. This however does not mean that land zoned for farming cannot be used for other activities.
9. I am unable to conclude a dwelling on the land will have an adverse impact on the agricultural activities on nearby land. There is a significant separation between the vineyard activity opposite and the subject land and there are already existing dwellings in the area. Mr Forbes referred to guidelines for spray drift and agricultural chemicals, suggested to be 30m, as well as the presence of trees and shrubs as a buffer. The dwelling is to be located approximately 94m from the closest boundary of the vineyard and 170m from the nearest vines within the vineyard. There is also a wide road side verge that contains vegetation which is considered to provide a sufficient buffer from any likely impact on the dwelling from the use of the vineyard.
10. There will be no impact on the abutting property which contains a dwelling and having a similar area to the subject land is used in a similar way with little or no agricultural activity occurring. The separation distance is approximately 74m. As noted by Mr Forbes there will be an increase in traffic along Banksdale Road as a result of a dwelling on the land, however the road currently services 11 other dwellings and when the vineyard is in full production vehicle traffic is relatively constant.
11. Banksdale Road is a well gravelled road that is obviously used by a number of vehicles of various sizes, given the number of dwellings in the near vicinity, as well as the type of vehicles expected to be used in the nearby vineyard operation. I consider this road does not pose any issue regarding access either to or from the subject land. There are some sections of Banksdale Road where the road verges are well vegetated but the road is at least 4m in width for its entirety and the area in front of the subject land is relatively open with wide road side verges that do not constrain access to the subject site. I note the CFA has not raised any concern regarding access.
12. The Responsible Authority expressed concern that allowing a dwelling on the land would introduce additional people into the area of significant fire risk. In this respect the Responsible Authority referred to bushfires that covered the subject land and nearby area in 2007. It is not as though this is a pristine area where there are no dwellings. There are a number of dwellings in close proximity to the subject land, including a dwelling on a lot abutting the subject land that is of a similar size. To some extent the area has been changed and allowing another dwelling will not increase the existing threat to life and property from bushfires in the future that threat already exists.
13. The Responsible Authority also considered that having a dwelling on the land, used only as a weekender, would result in the land not being maintained for weeds and fire protection. In my view it is more likely that having a dwelling on the land will result in the land being maintained in terms of weeds and fire protection. This is more likely than if left in its current state where there is no incentive to carryout such maintenance.
14. In the context of this site it is considered the land can be used for a dwelling.

1. The Responsible Authority provided a set of draft conditions for discussion at the hearing. These conditions included the recommended conditions by the CFA, as well as a condition requiring the owner to enter into a section 173 Agreement with the Responsible Authority. The agreement requires the owner to provide annual evidence that the CFA conditions are being complied with, as well as the owner accepting the as-of-right agricultural uses of the adjoining and surrounding land.
2. The applicant suggested the requirement for annual evidence be detailed to ensure both the Responsible Authority and applicant knew what information was expected. I consider this reasonable and have incorporated some changes into this condition.
3. The conditions are considered appropriate.

1. The decision of the Responsible Authority is set aside. A permit is granted subject to conditions.

• Use of a dwelling in the Farming Zone
• Development of a dwelling in the Farming Zone and under the Wildfire Management Overlay

1. The use and development permitted by this permit as shown on the endorsed plan(s) and/or described in the endorsed documents must not be altered or modified (for any reason) except with the prior written consent of the Responsible Authority.
2. Prior to the commencement of development, the owner of the subject land must, at no cost to the Responsible Authority, enter into an agreement (in a form satisfactory to the Responsible Authority) with the Responsible Authority pursuant to Section 173 of the Planning and Environment Act 1987. This agreement must provide that:

(a) The owner must provide evidence to Council annually that all conditions required by the Country Fire Authority are being complied with, such evidence is to be in the form of a Statutory Declaration and may include photographs indicating the area cleared around the dwelling, maintenance of the access and the provision of water supply; and

(b) The owner of Lot I, LP208029 Banksdale Road, (the subject land) acknowledges that the adjoining and surrounding land is zoned Farming Zone under the Wangaratta Planning Scheme and accepts that from time to time there may be some off-site effects associated with the as-of-right agricultural uses of the adjoining and surrounding land (e.g. noise, odours, etc.) that may impinge on the subject land.

An application must be made to the Registrar of Titles to register the section 173 agreement on title to the subject land under section 181 of the Act.

1. All external materials and trim of the approved dwelling must be of a non- reflective nature. Cladding materials must be coloured or painted in muted shades or in colours satisfactory to the Responsible Authority.
2. Prior to the commencement of the development, the applicant must obtain a permit from Council for an access crossover, and this crossover is to be constructed to the standards specified and to the satisfaction of the Responsible Authority. The minimum distance from the edge of shoulder to the gate is to be 12.5 metres. If required the gate is to be set back into the property from the property boundary to achieve the minimum dimension conditions

(a) The development is not commenced within two years of the date of this permit;

(b) Provided (a) is complied with the development is not completed within four years of the date of this permit.

The Responsible Authority may extend the periods referred to, if a request is made in writing before the permit expires or within three months afterwards.

6 A static water supply must meet the following requirements:

(a) a minimum of 10,000 litres on-site static storage must be provided on the lot and be maintained solely fire fighting;

(b) the water supply must be located within 60 metres of the dwelling;

(c) fire brigade vehicles must be able to get to within four metres of the water as indicated on the wildfire development plan;

(d) the water supply must be readily identifiable from the building or appropriate signage (see Appendix A: Figure 1) must point to water supply. All below-ground water pipelines must be installed to the following depths:

(iv) all fixed above-ground water pipelines and fittings, including water supply, must be constructed of non-corrosive and non- combustible materials or protected from the effects of radiant heat and flame.

1. If the static water supply is above ground the following additional standards must apply:

(a) all above-ground static water supply must provide at least one 64 mm. thread/25 mm x 50 mm nominal bore British Standard Pipe (BSP), round male coupling (see Appendix A: Figure 2);

(b) all pipe work and valving between the water supply and the outlet must be no less than 50 mm nominal bore;

(c) if less than 20 metres from the building, each outlet must face away from the building to allow access during emergencies.

1. Access to the dwelling must be designed to allow emergency vehicles access. The minimum design requirements are as follows:

(a) curves in driveway must have a minimum radius of ten metres;

(b) the average grade must be no more than 1 in 7 (14.4%) (8.1º) with a maximum of no more than 1 in 5 (20%) (11.3°) for no more than 50 metres;

(c) dips must have no more than a 1 in 8 (12.5%) (7.1°) entry and exit angle.

1. If the driveway from the road to the dwelling and water supply, including gates, bridges and culverts, is greater than 30m long, the driveway:

(a) must be designed, constructed and maintained for a load limit of at least 15 tonnes';

(c) must provide a minimum trafficable width of 3.5 metres, and

(d) be clear of encroachments 4 metres vertically (see Appendix A: Figure 3).

1. If the driveway is longer than 100 metres, a turning area for fire fighting vehicles close to the dwelling must be provided by either:

(a) a turning circle with a minimum radius of 10 metres; or

(c) a "T" head or "Y" head with a minimum formed surface of each leg being 8 metres in length measured from the centre point of the head, and

(d) four metres trafficable width (see Appendix A: Figure 4).

1. If the length of the driveway is greater than 200 metres, passing bays must be provided. Passing bays must be 20 metres long and must be provided every 200 metres, with a trafficable width of six metres (see Appendix A: Figure 5).

1. A distance of 30 metres around the proposed dwelling or to the property boundary (whichever is the lesser) must be maintained to the following requirements during the declared 'Fire Danger Period' to the satisfaction of the Responsible Authority.

• There must be no elevated fuel on at least 50% of the area. On the remaining 50% the elevated fuel must be at most, sparse, with very little dead material.
• Dry native shrubs must be isolated in small clumps more than ten metres away from the dwelling.

• Trees must not overhang the roofline of the dwelling.

1. Building construction to a minimum Bushfire Attack Level (BAL) of BAL 12.5 in accordance with AS3959-2009.

[1] I have considered all submissions presented by the parties although I do not recite all of the contents in these reasons.

[2] Clause 21.05 Rural Land Use and Agriculture; Clause 22.01 Rural land Use and Agriculture Wangaratta Planning Scheme

[3] [2009] VCAT 329 (27 February 2009)