1. The site and area is in the Farming Zone ('FZ') which, apart from implementing the Municipal Planning Strategy ('MPS') and Planning Policy Framework ('PPF'), includes the purposes of providing for the use of land for agriculture, encouraging retention of productive agricultural land, ensuring non-agricultural uses, including dwellings, do not adversely affect the use of land for agriculture, encouraging retention of employment and population to support rural communities and use and development of land based on comprehensive and sustainable land management practices.
2. I note the Schedule to the FZ does not contain any additional purposes. Relevantly, 'Map 1 to the Schedule to Clause 35.07' identifies the site within the 'Thompsons Creek Catchment/Otway Hills and Coastal Hinterland' which specifies a minimum area of 60 hectares for which no permit is required to use land for a dwelling. Accordingly, because of the size of the site, a permit is required under the FZ for the use and development of a dwelling.[3]
3. The FZ also contains a range of decision guidelines[4] concerning general issues, agricultural issues and the impacts from non-agricultural uses, accommodation issues, environmental issues and design and siting issues. The key decision guidelines relevant to the proposal includes:
   • Site suitability for a dwelling and compatibility with adjoining and nearby land uses.
   • Whether the proposal will support and enhance agricultural production.
   • Any adverse impacts on soil quality or permanent removal of land from agricultural production.
   • Potential for the proposal to limit the operation and expansion of adjoining and nearby agricultural uses.
   • The capacity of the site to sustain the agricultural use.
   • The agricultural quality of the land.
   • Any integrated land management plan.
   • Whether the dwelling will result in the loss or fragmentation of productive agricultural land.
   • Whether the dwelling will be adversely affected by surrounding agricultural activities.
   • Potential for the proposal to lead to a concentration or proliferation of dwellings in the area and impacts on the use of land for agriculture.
   • Environmental impacts of the proposal.
   • Design and siting impacts of the proposal including on the character and landscape values of the area.
4. The western half of the site is also affected by the Significant Landscape Overlay Schedule 8 - 'Rivers of the Barwon: Barwon River (Parwan) Corridor Environs' ('SLO8'). A permit is required for the portion of the proposed dwelling that is within the area of coverage of the SLO8 and that is above 6 metres in height.
5. Relevant to the nature of the proposal, the SLO8 has objectives seeking to ensure buildings and works are not visually dominant when viewed from the waterway corridor, are set back from the banks of the waterway and avoid visual intrusion within the landscape and protects vegetation along the waterway corridor.
6. Policies that are directly relevant to the proposal to use and develop land in the FZ for a dwelling generally seeks to ensure agricultural land is protected and agricultural production is not adversely impacted. I have outlined those key policies that are relevant including:
   • Clause 02.03-1 relating to 'Settlement' identifies how the township of Winchelsea is an inland settlement that services the surrounding farming community. Strategic directions under the policy include concentrating urban growth into towns like Winchelsea and protecting the rural landscape from urban intrusion.
   • Clause 02.03-2 relating to 'Environmental landscapes and values' and the 'Great Ocean Road and significant landscapes', recognises the adverse impacts of urban intrusion and visually prominent development on eroding significant landscape qualities and that development should complement rural landscape character. The site is identified within the 'Mixed Farming Area 3 Landscape Precinct' which includes undulating, cleared pastoral land bisected by the Barwon River.
   • Clause 02.03-4 relating to 'Natural resource management' and 'Protection of agricultural land', describes how the agricultural capability and current allotment and tenement sizes in the farming areas of the Shire including around Winchelsea remain conducive to agriculture with much of the land still used for broadacre farming. However, the policy also recognises that these areas are under increasing pressure with the rural landscape changing including from hobby farming and rural residential development. Land values increase above productive values from inappropriate development resulting in decreases in farm affordability and loss of agricultural land. Strategic directions include protecting the ability of future generations to productively farm the land, avoiding the loss of agricultural productivity associated with land use conflicts between farming activities and non-farm related residential development, discourage use and development in rural areas that are unrelated to agriculture or that does not complement an agricultural use and does not complement the landscape character and environmental values.
   • Related to 'Sustainable agriculture', the policy seeks to protect and encourage diverse and sustainable agricultural activity.
   • Clause 14.01-1S related to 'Protection of agricultural land' seeks 'to protect the state's agricultural base by preserving productive farmland'. Relevant strategies relate to avoiding permanent removal of agricultural land without considering the economic importance of the land for agricultural production, protecting agricultural land that is of strategic importance, protecting productive agricultural land from unplanned loss due to permanent changes in land use, limit new housing in rural areas by directing housing growth into settlements, discouraging development of isolated small lots for dwellings, encouraging consolidation of existing isolated small lots and consider land use compatibility and impacts on adjoining agricultural land and activity including to land values and infrastructure.
7. In addition, there are other policies relating to 'Rural residential development' (Clause 16.01-3S) and 'Rural residential development in Surf Coast' (Clause 16.01-3L) which do not support dwellings on existing isolated small lots and in good quality agricultural areas.
8. Policy under Clause 17.01-1L relating to 'Diversified economy - Surf Coast' where agribusiness is encouraged and innovative land use complementing agricultural production is supported.

1. I have had the benefit of submissions from Mr Tim Berger for Council and Mr Tom Morrison for the applicants and the evidence of Ms Deborah Jones on equine matters and have given consideration to their respective submissions and the expert evidence.
2. With this matter, I must decide whether the proposal will produce an acceptable outcome having regard to the relevant policies and provisions in the planning scheme. Net community benefit is central in reaching a conclusion. Clause 71.02 - 'Integrated Decision Making' of the planning scheme requires the decision-maker to integrate the range of policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit and sustainable development for the benefit of present and future generations.
3. With this proposed development I must decide whether a permit should be granted and, if so, what conditions should be applied.
4. Having considered all submissions and evidence presented with regards to the applicable policies and provisions of the planning scheme and from my inspection, I find I am generally in agreeance with Council. I find the proposal represents an unacceptable outcome.

1. The applicants say the site is suited to the proposal to conduct horse husbandry and a horse stud. Reference is made to the outcomes of the Farm Management Plan and the evidence of Ms Jones that the soil quality of the site is not conducive to intensive agricultural use given the quality of the soil, small size of the site and the presence of remnant old growth native trees on the site that should be retained. Ms Jones' evidence is that she considers the site is well suited to horse breeding and agistment because it is sufficient for what is proposed with adequate pasture supplemented with hard feed, good shade and shelter and close to a strong equine and racing community around Winchelsea. The applicants say the agricultural use of the site is an effective and efficient use of the land that promotes agricultural production.
2. The applicants say conducting a horse husbandry/horse stud on the site means that it is essential for the horses to be cared for 24 hours seven days a week which makes a dwelling and an ability to reside on the land essential for the horse stud.
3. The evidence of Ms Jones is that management of a horse stud is very labour intensive:

....Tasks involving the horses include, visual and hands on inspections, monitoring health and welfare, feeding, watering, catching and handling, grooming, first aid care, bandaging, ground work, vet work, handling for farrier, dentist etc, lunging, riding, show preparation, washing, clipping, sale preparation, float/transport training, in hand work, hoof care and maintenance, rugging, unrugging, stabling and turn out, stallion handling, paddock serving, hand serving, Artificial Insemination, checking mares prior to foaling, foal watch, foaling down, stable care after foaling, mare and foal monitoring and care, handling foal, headcollar and lead training, weaning and further groundwork for foals.

Tasks not involving horses include, stable and yard cleaning, formulating ration plans, paddock cleaning and maintenance, pasture improvement, weed maintenance and spraying, implementing worming programs, paddock rotation, fencing and gate maintenance, water trough cleaning, equipment/machinery maintenance, float, truck, quadbike etc. maintenance, gear checking and maintenance, feed inventory, gear inventory, first aid inventory, bookkeeping, shows and exhibition planning, pedigree research, training and exercising planning, marketing and computer input.

Horses need a consistent feeding routine and are often fed up to three times a day. Water must always be accessible, and troughs must be kept clean.

The handling/exercise/training should also be done at the same time each day. Depending on what is required this can take 1- 2 hours per horse.

1. The applicants also rely on the letter from veterinarian Dr Jade Janssens:

In our professional opinion, the safe and successful operation of any equine breeding program - particularly one involving mares in foal, neonatal foals, and breeding stallions - requires 24-hour supervision by a competent person residing on the property. On-site accommodation is critical for:

• Monitoring mares during late-term pregnancy and intervening during foaling emergencies, which often occur overnight
• Ensuring animal safety during severe weather, fire risk, or illness
• Preventing injury or escape due to fencing breaches, predator threats, or behavioural issues

From an animal welfare and operational standpoint, it is standard and widely accepted practice for horse studs to have qualified personnel residing on-site.

1. The applicants say the proposal for a dwelling is related to agricultural use and will not result in the loss of land from agricultural activity. They say the dwelling will not impact on adjoining agricultural activity because of the link between the dwelling and the horse husbandry/horse stud. They say the dwelling is necessary and convenient for the operation of the horse stud and therefore consistent with the purposes of the FZ and relevant policy.
2. Council says the proposal will adversely impact on agricultural land and entrench a dwelling as a change of use for what, based on the small scale of the agricultural use, would become the dominant use of the site. Council says the actions outlined in the Farm Management Plan do not rely on the proposed dwelling to be undertaken and that there is an absence of a compelling link that the dwelling is necessary for conducting the agricultural use.
3. Council says the evidence of Ms Jones does not demonstrate that a dwelling is required for the farming use but rather shows simply a relationship of convenience between the farming activity and the dwelling.
4. Council says the agricultural use of the site for a horse stud can occur now, without the need for a permit and that a dwelling would not support or enhance the agricultural use that has been established.
5. Council says many of the activities described in the evidence of Ms Jones can be undertaken without the need for a dwelling. The applicants have constructed a shed/stable building to be used for equine purposes which has a floor area that includes stables, float parking, horse wash, foaling area, tie ups and toilet/bathroom and kitchenette (refer to Figure 7).

Figure 7: Floor layout of the constructed shed/stables building.

1. Council says this building can provide an appropriate area where management of the horses can occur including those activities that are closely aligned with the more intensive and direct care of horses such as during foaling.
2. I note that much of the emphasis of the applicants' submission and the evidence of Ms Jones was on the bone fides, legitimacy and appropriateness of the agricultural use of the site. This focus was on the idea of using the site for a horse stud or for horse husbandry. I accept that the site can be used for horse husbandry which includes breeding. A permit under the FZ is not required for such activity. It can, and indeed, is occurring on the site now. However, it is whether the dwelling supports, enhances or adversely affects the agricultural land that I must consider.
3. Both the applicants and the Council made submissions about how the dwelling is required or needed to support the horse stud operation. This was mainly because horses are unpredictable animals that the applicants and the evidence of Ms Jones say requires daily and constant supervision, care and management. This line of argument is interesting because Mr Morrison's submissions described how Amendment VC103 changed, in 2013, the decision guidelines of the FZ that removed the consideration about whether a dwelling was 'reasonably required for the operation of an agricultural activity on the land'. My attention was drawn to the decision in Jordan v Baw Baw SC (No. 2) [2024] VCAT 1112 at paragraph 35 where the Tribunal made clear that it is not essential to justify a need for a dwelling on land in the FZ. This is correct; however, the planning scheme still includes under policy, consideration about discouraging the use and development of farming land for a dwelling that is unrelated to agricultural activity.[6]
4. The consideration of the relationship between the dwelling and agricultural production remains an element in the planning scheme, albeit, at a policy level.
5. The planning scheme establishes strong policy to protect and retain agricultural land.[7] Of note, I understand that the site is a crown allotment[8] located in an area where many other similar sized crown allotments are evident. The PPF identifies negative impacts evidenced through development of multiple 'old Crown' titles with dwellings. Clause 02.03.4 relating to 'Protection of agricultural land' recognises the important value of agricultural land around Winchelsea for broadacre farming and that increasing pressure in rural areas often associated with, amongst other uses, include hobby farming.
6. The scale of the proposed horse stud, which is promoted by the applicants for requiring a dwelling is akin, in my view, to a form of hobby farming. Council says there is a risk that, while much argument, such as provided in Ms Jones' evidence, for the need for a dwelling to enable occupation on the site permanently to look after the horses, is based on the applicants' experience, the dwelling represents a permanent change in land use. This risks the potential for the dwelling to become more akin to a rural lifestyle outcome, particularly if the applicants move on and the horse stud operation discontinues.
7. Mr Berger submitted that it is relevantly important to consider the planning scheme in an overall sense, including the zoning and policy frameworks to gain an appropriate understanding of what is sought for the agricultural areas of the Shire. He says it is the combination of the size of the site, the scale of the agricultural activity and of what is proposed and the desired outcomes sought by the planning scheme.
8. Council's position is that the zone and policy framework of the planning scheme discourages development of small crown allotments for a dwelling unless the site forms a tenement within the meaning of policy under Clause 14.01-1L-02. Council says the policy relating to tenements seeks to ensure the long term protection of rural land for agricultural purposes. It is a policy that recognises that there is a plethora of small rural lots across the municipality that have historically contributed to agriculture as part of a larger agricultural base. Council says the policy seeks to avoid dwellings unless the broader tenement would have allowed for a dwelling to avoid fragmentation and loss of agricultural land.
9. The applicants say the policy relating to tenements is not a control and, as policy, is only a guide in considering a proposal. I acknowledge the role of policy. However, I also acknowledge that policy aids in achievement of desired outcomes.
10. From what I understand, it appears that the site does not satisfy the tenement requirements and fails to satisfy the intent of a site of this ilk being consolidated as apart from being individually developed with a dwelling irrespective of what agricultural activity may be occurring on the site.
11. I find the proposal for a dwelling does not support and enhance agricultural production on the site. In reaching a conclusion about the acceptability of the proposal, it is important to consider, in addition to current planning outcomes, longer term planning outcomes as well. In this sense, the dwelling proposed on a small lot with a small scale agricultural use that, is not all-together clear it is required for the use, represents a change in land use that would permanently alter future options for the site for agricultural production through the physical presence of the dwelling and the effects it has on land values within an agricultural area in the FZ. I do not consider this represents orderly planning.
12. It may be convenient for the applicants to live on the site to conduct the horse stud. However, it is of a small scale that I consider the dwelling would become the dominant partner in terms of land use. Activities associated with the horse stud can be conducted daily with the inconvenience of living off-site not insurmountable, given the township of Winchelsea is around a 10-minute drive away.
13. I was referred to numerous Tribunal caselaw[9] where permits were granted and were not granted for dwellings associated with various forms of agricultural use, some of which included proposals for horse husbandry activity. However, I note that for many of the cases where permits were granted, the differentiating characteristic was the presence of other dwellings on adjoining or nearby small lots. This is not yet the case in this instance. There are some rural lifestyle developments to the north-east and north-west of the site. However, the site is at the area of transition to larger sized agricultural properties and does not have dwellings on adjoining lots to the east, west or south. This is a different context and one where I am not convinced should be affected by a permanent change in land use with a dwelling.
14. Overall, I accept the Council's submission derived from the caselaw that:

a) Horse breeding enterprises in close proximity to townships can be managed from an offsite location. > > b) Limited weight can be given to the subjective intentions, or experience of the owners. > > c) Regard ought to be had to the long term impact of a dwelling and the greater certainty that the dwelling will 'outlive' the farming activity. > > d) Horse operations that occur on small scale blocks, and with numbers in the single or low double digits, are not generally of such scale to warrant a permanent dwelling presence.

15. I find the proposal is a similar fit to the above and is not an acceptable outcome.

1. Given my findings above, my consideration of visual impacts on the Barwon River corridor and the SLO8 are somewhat academic. However, for completeness, I provide the following.
2. The applicants say the nearest part of the Barwon River waterway to the proposed dwelling is at least 1,080 metres away to the west, on what the applicants describe as 'fairly flat country'. The applicants provided a plan showing the limit of coverage of the SLO8 which is shown in Figure 8.
3. The coverage of the overlay and the proposed location of the dwelling straddles the overlay boundary. I note the part double storey form of the dwelling is also located outside of the overlay coverage.

Figure 8: The extent of the SLO8 over the site and proposal, sourced from the applicants' submission.

1. Together this means that it is only that portion of the proposed dwelling that is over 6 metres in height associated with the single storey portion of the built form that triggers the permit requirement.
2. Overall, I am satisfied that the proposal will not form a prominent visual presence when viewed from the Barwon River waterway and that impacts on views from the waterway corridor will not be significant.

1. For the reasons given above, the decision of the responsible authority is affirmed. No permit is granted.

[1] The submissions and evidence of the parties, any supporting exhibits given at the hearing and the statements of grounds filed have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.

[2] Horse husbandry is defined under Clause 73.03 as 'Land used to keep, breed, board or train horses' and is included in 'Animal husbandry'.

[3] Refer to Clauses 35.07-1 and 35.07-4 respectively.

[5] Under Clause 73.01 Tenement is defined as:

a) a lot which does not adjoin another lot in the same ownership; or

b) lots in the same ownership and which adjoin each other.

Lots are considered to adjoin each other if they are separated only by a stream, stream reserve, or unmade or unused government road or rail reserve'.

[7] Refer to Clauses 02.03-4, 14.01-1S, 14.01-1L-01 and 14.01-1L-02.

[8] Crown Allotment 23, Parish of Tutegong.

[9] Which I do not refer to individually, but which are on the Tribunal's file.