1. In application P1392/2018, the decision of the Responsible Authority is set aside.
2. In permit application no. 507/2017/P, no permit is granted.

Construction of a building with two wings. The western wing comprises a double storey dwelling with five en-suite bedrooms, living areas and kitchen. Common areas (including a pool) and a four-car garage lead to the single storey east wing with 10 en-suite bedrooms and a common dining area and retreat. The building will allow up to 20 bed and breakfast guests. An existing dwelling will be used for storage in association with the bed and breakfast use. No vegetation is to be removed. Additional on-site parking is proposed.

Application under section 82 of the Planning and Environment Act 1987 - to review the decision to grant a permit.

Rural Conservation Zone Schedule 2 [RCZ2]. Bushfire Management Overlay [BMO]. Environmental Significance Overlay Schedule 1 Native Vegetation and Fauna Habitat [ESO1].

Clause 35.06 to use and develop a dwelling; use the land for bed and breakfast (20 persons); construct an outbuilding of more than 100m2 and within 100 metres of a dwelling not in the same ownership. Clause 44.06-2 for buildings and works associated with the use of the land for accommodation.

Clauses 11, 12, 13, 14, 15, 16, 17, 21, 22.06, 35.06, 42.01, 44.06, 52.06, 44.06, 52.06, 65 and 71.

The land is on the south-west side of Potts Road and is approximately 10ha in area. It contains a dwelling and outbuildings. A large stand of vegetation is in the western part of the land.

1. Bayside Town Planning applied to the Frankston City Council for a planning permit to use and develop the subject land for a dwelling and bed and breakfast accommodation for up to 20 guests.[3] The Council determined to grant a permit, subject to conditions. It is this decision that the applicant, Mr Ross, has asked the Tribunal to review.
2. I must decide whether to grant a permit and, if so, what conditions should apply to a permit. I must decide whether the proposal will produce an acceptable outcome having regard to the relevant policies and provisions in the scheme.
3. Having regard to the grounds relied upon, and addressed in submissions, the key issues in this proceeding are:
   • How the proposed land use should be categorised.
   • Whether the requirements of the Aboriginal Heritage Act 2006 and Aboriginal Heritage Regulations 2018 have been met.
   • How the proposal responds to the scheme's provisions and policies relating to green wedges and the purpose of the Rural Conservation Zone.
   • How the proposal responds to the adjacent and nearby quarry operations.
   • Whether the proposal appropriately responds to its location in terms of bushfire management.
4. Clause 71 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. However, in bushfire affected areas, planning and responsible authorities must prioritise the protection of human life over all other policy considerations.

1. The permit application has been processed and determined by the Council as the construction of one dwelling and use of the land for bed and breakfast accommodation.

1. Mr Ross contends the proposal should be categorised as a residential hotel rather than bed and breakfast accommodation. He submits that the definition of bed and breakfast facility implies that the main purpose of the building is a dwelling with the bed and breakfast portion being ancillary. In this permit application, 10 of the 15 bedrooms are in a separate wing of the building for guest accommodation. The dwelling is subservient to the guest accommodation and consequently, as the dwelling will be ancillary to the guest accommodation, the appropriate definition is as a residential hotel.
2. Relying on Tribunal decisions[4] and findings of the Land Use Terms Advisory Committee[5], Mr Ross submits there is a 10 person limit on bed and breakfast as a section 1 use. Beyond 10 people, Mr Ross submits the use ceases to be ancillary and becomes a residential hotel, which is a form of residential building. He adopts the categorisation as residential hotel because of the emphasis in its definition on accommodating people away from their normal place of residence. Mr Ross is critical of the large scale of the proposed use, demonstrated by using the whole of the existing dwelling for storage purposes.
3. The Council and respondent submit that bed and breakfast is the appropriate categorisation, having regard to the layout of the building and because the resident will operate the bed and breakfast facility. They submit the proposed bed and breakfast use is not disproportionate to the size of the dwelling. Mr Truong states that the owner, and possibly family members, will run the bed and breakfast facility without additional staff.

A dwelling used, by a resident of the dwelling, to provide accommodation for persons away from their normal place of residence.

1. 'Bed and Breakfast' is nested under 'Dwelling'. There is no dispute that the proposed development includes a dwelling.[7]
2. The scheme defines 'Residential Hotel' as:

Land used to provide accommodation in serviced rooms for persons away from their normal place of residence. If it has at least 20 bedrooms, it may include the sale of liquor for consumption on, or off, the premises, function or conference rooms, entertainment, dancing, amusement machines, and gambling.

1. 'Residential Hotel' includes 'Motel' and is nested under 'Residential Building'.

1. Mr Ross referred to the Tribunal's findings in Gance:[8]

...The Tribunal must identify the real and substantial purpose of the use, having regard to ordinary terminology.[9] This is necessarily a question of fact and degree in each case. If more than one activity is involved and if one is dominant and the other(s) are lesser or ancillary, there is only one purpose (ie the dominant purpose).[10] Alternatively, if there are two or more activities and each is seen as substantial in its own right, it can be held that multiple distinct uses are concurrently operating on the one site.

1. I am not particularly assisted by the Tribunal's findings in McGeogh[11] to which I was referred. The facts of that case are different. They required the Tribunal to consider how a development should be categorised, including as shared housing, dwelling or residential building. On my reading of the decision, bed and breakfast was not part of the consideration.
2. It is necessary to consider how is the development shown on the plans capable of being used, and is likely to be used, as well as how it is intended to be used.
3. On the information in the permit application, confirmed at the hearing by Mr Truong, the accommodation will be operated by the resident/s of the dwelling. The permit application is premised on the accommodation being part of, and integrated with, the dwelling. On these bases, it would fit with the elements of the definition of a bed and breakfast use in the scheme. This is how the Council processed and decided the permit application.
4. Taken on its face, that description accords with what I consider is the ordinary understanding of what this use entails. That is, the resident/s living in the dwelling and conducting the use. Interaction with the resident might be part of this. The proposed guest rooms have facilities for sleeping and bathing but no other facilities that would result in self-containment. There are common dining and leisure facilities and the offer of breakfast. Mr Truong indicated other meals may be offered too. The meals are to be made in the kitchen that is part of the dwelling. There is a physical relationship between the dwelling and accommodation via the single entry.
5. The large dwelling has five en-suite bedrooms. The proposed accommodation wing, with 10 en-suite bedrooms and up to 20 guests, is large. The size of a bed and breakfast land use is not capped by clause 73. That a permit is triggered where there are more than 10 guests by clause 35.06 is not determinative that 10 guests is a limit to be applied in defining the land use. However, I think that there will be a size at which the notion of a bed and breakfast facility associated with a dwelling becomes a different land use, in this case, the contention is that it is a residential hotel.
6. The size and configuration of the bed and breakfast component raises the legitimate question as to whether it is a residential hotel use.
7. The inclusion of the guest rooms in a single wing is part of this question as is the substantial scale, in relative terms. The use of the whole of the retained building (currently a three bedroom dwelling) for storage associated with the bed and breakfast use is another indicator of the considerable scale of the proposed accommodation use and the appropriateness of the bed and breakfast categorisation.
8. Other than a submission that the use will be run by the resident/s, there is little information about how the use is proposed to operate and how this number of guests will be managed.[12] There are also questions about the layout. As examples:
   • The route to the guest rooms passes through the ground level of the dwelling via the edge of the kitchen and dining area. Given the open plan layout, there are questions about the privacy for the resident/s. I have noted that this may be able to be simplified by the addition of an entry, as suggested by Mr Truong.
   • There is no proposed 'reception' type desk/space, and there are no facilities in the common areas for tea/coffee and the like.[13]
   • The common area and retreat for up to 20 guests are modestly-sized.[14]
   • The dwelling's kitchen is arguably also modest to cater for up to 20 guests for breakfasts and possibly other meals.
   • One side of the master bedroom opens to the pool and common area.
9. The proposal is to provide accommodation in serviced rooms for persons away from their normal place of residence. The more specific scheme definition is preferable if the proposal is found to fit the definition of bed and breakfast on the facts. Because of the scale and configuration, and limited information about the operation and management, I have doubts about this. I have assessed the application using both categorisations, and, for reasons set out below, either way, I would refuse a permit.

HAVE ABORIGINAL HERITAGE REQUIREMENTS BEEN MET?

1. It is common ground that the subject land is located within an area of Aboriginal cultural heritage sensitivity.

1. Mr Ross submits a Cultural Heritage Management Plan should be prepared. He contends the proposal is a high impact activity under the Aboriginal Heritage Regulations 2018. This is because the use is a residential hotel which is nested under the definition of residential building.
2. If the proposal is categorised as a residential hotel, which is nested with residential building in the Victoria Planning Provisions, it would be a high impact activity under regulation 46. In this case, the permit applicant would need to demonstrate that the area for the proposed activity has been the subject of significant ground disturbance to reach a conclusion that no Cultural Heritage Management Plan is required. While there is evidence of the location for the proposed dwelling being cleared and disturbed, there is no material before me to conclude it has been the subject of significant ground disturbance for the purpose of the Aboriginal Heritage Regulations 2018. If minded to grant a permit on the merits, I would be unable to do so because this matter is unresolved.

1. If the proposal is categorised as one dwelling with a bed and breakfast use for more than 10 guests, I agree with submissions on behalf of the Council and respondent that a Cultural Heritage Management Plan is not required because:
   • One dwelling is an exempt activity.
   • Bed and breakfast is not a high impact activity.[15]
2. I would not need to turn to questions of whether the land has been the subject of significant ground disturbance or other matters that might be relevant to determining whether a Cultural Heritage Management Plan is necessary.

IS THE PROPOSAL ACCEPTABLE IN THE GREEN WEDGE AND RCZ?

1. Mr Ross submits the proposal is inappropriate in the green wedge and the RCZ. Among the applicant's concerns are that the proposal will alienate agricultural land, potentially impact on the adjacent horse keeping operation, blurs the boundary between the rural and urban area and fails to achieve outcomes sought for this location because of its impact on landscape values, environmental values, and the urbanisation that it presents. In Mr Ross' submission, it fails to meet outcomes sought by Plan Melbourne 2017 - 2050 with respect to productive agricultural land in the green wedge. The proposal will not, in his submission, meet the purpose of clause 35.06, RCZ2 or clause 51. Nor does it accord with policies in clause 11.01-1R, clause 14.01-1S and clauses 21.04 and 21.06 relating to green wedges generally and this green wedge.
2. Further, Mr Ross submits the proposal will have an unacceptable visual impact and fails to protect the landscape values associated with the green wedge. He says the proposal will have a detrimental impact on a reserve proposed on the east side of Potts Road (part of the Burdett's Quarry site).
3. The Council and respondent disagree. They submit the proposal is compatible with the purpose of clause 35.06; it will not result in a loss of vegetation or agricultural land as the development will be located on a cleared and disturbed area of land. Further, the agricultural potential will remain and the use will not conflict with the use of adjacent properties (from which there are no objections).
4. Mr Mellawa and Mr Truong refer to the size of the building relative to the 10ha lot upon which it would be constructed. They submit that the scale of development is not unusual in this location, particularly when compared with the adjacent properties. Further, an outbuilding and shipping containers will be removed. No vegetation is to be removed. New vegetation will be provided on the southern boundary and new landscaping can occur. Mr Truong submits that the retention of the existing dwelling, for storage, will assist to limit views to the proposed building from Potts Road. That will be assisted by the dwelling's very deep setback from Potts Road. He refers to the position of the dwelling nearly 180 metres from that road.
5. No party contends that the dwelling fails to meet the servicing requirements of clause 35.07-2 and policies relating to appropriate wastewater disposal.

1. The zoning of the subject land and environs is shown in the property report extract below.

1. Key provisions and policies with respect to the green wedge and RCZ2 are:
   • Clause 35.06 including its purpose and decision guidelines as well as Schedule 2.
   • Clause 51.02 addressing metropolitan green wedge land : core planning provisions.
   • Policies including clauses 11.01-1R, 14.01-1S, 21.04 and 21.06.
2. I do not recite them all, but have considered them fully.
3. Although the subject land is one lot removed from the Urban Growth Boundary it is part of the green wedge and cannot be treated as if it is within the designated urban area. However, the quarry, other adjacent land uses, and wider land use and physical context are relevant to an assessment.
4. My photograph below indicates the evident proximity of dwellings to the south-east, within the Urban Growth Boundary, over the front of the subject land and property at No. 135 Potts Road.

1. If I adopt the proposal's categorisation as a residential hotel (with or without a separate dwelling use), I would accept Mr Ross' submission that the proposed use is prohibited. It does not meet a condition in clause 51.02-2 that it must be used in conjunction with agriculture, natural systems, outdoor recreation facility, rural industry or winery.
2. Clause 64.02 states:

1. The purpose of clause 51.02 includes:
   • To protect metropolitan green wedge land from uses and development that would diminish its agricultural, environmental, cultural heritage, conservation, landscape natural resource or recreation values.
   • To protect productive agricultural land from incompatible uses and development.
   • To ensure that the scale of use is compatible with the non-urban character of metropolitan green wedge land.
   • To encourage the location of urban activities in urban areas. ...
2. The Council's submission that the bed and breakfast is used in conjunction with the dwelling is not relevant to this, as there is no condition that a dwelling must be in conjunction with another use of the land.[16]
3. The respondent is unable to say how the use of the land will be in conjunction with agriculture, natural systems, outdoor recreation facility, rural industry or winery. There is no specific proposal for the balance of the subject land that is not associated with the dwelling and bed and breakfast uses.
4. I do not accept Mr Truong's submission that the applicant does not have to say more about how the balance of the subject land will be used because agriculture is as of right in clause 35.06. I disagree because:
   • Clause 64.02 sets out what is required to be determined by the decision-maker.
   • I do not agree that agriculture and other uses such as winery are section 1 use in clause 35.06. I agree with Mr Ross on this point.
5. There is no evidence of the land currently being used for agriculture, natural systems, outdoor recreation facility, rural industry or winery. The cleared part of the land is heavily affected by bracken and there are other weeds such as blackberries. Although the respondent offered some ideas or possibilities at the hearing about the use of the balance of the land, there is nothing before me that would enable a conclusion to be reached that there is an essential association between uses or a genuine, close and continuing functional relationship in the terms referred to in clause 64.02.

1. Strategically, the subject land is within the green wedge in an area with sizeable lots. Through clause 11.01-1R, the objective for green wedges is "To protect the green wedges of Metropolitan Melbourne from inappropriate development". Consistent with this, clause 21.04 identifies a key issue as managing the pressure for various uses in the green wedge areas. It is commonly said that green wedges are not all the same and they have specific features, values. In addition to protecting key values and assets, two strategies in clause 11.01-1R are:

Support development in the green wedge that provides for environmental, economic and social benefits.

Support existing and potential agribusiness activities, forestry, food production and tourism.

1. Clause 21.09 encourages the retention and expansion, where appropriate, of productive horticultural and agricultural activities in the green wedge areas.[17] While there are references to encouraging tourism in clause 21, such as clause 21.08, the purpose of clause 35.06 does not expressly refer to tourism opportunities compared with the purpose of the Green Wedge Zone in clause 35.04.
2. The purpose of clause 35.06 includes:
   • To conserve the values specified in a schedule to this zone.
   • To protect and enhance the natural environment and natural processes for their historic, archaeological and scientific interest, landscape, faunal habitat and cultural values.
   • To protect and enhance natural resources and the biodiversity of the area.
   • To encourage development and use of land which is consistent with sustainable land management and land capability practices, and which takes into account the conservation values and environmental sensitivity of the locality.
   • To provide for agricultural use consistent with the conservation of environmental and landscape values of the area.
   • To conserve and enhance the cultural significance and character of open rural and scenic non urban landscapes.
3. Schedule 2 to the RCZ has the following 'Conservation Values':

To maintain and enhance the mosaic of low key rural uses and remnant vegetation on small to medium size rural holdings in the Skye and Langwarrin areas.

1. Decision guidelines in clause 35.06 are under the headings of general issues, rural issues, environmental issues, dwelling issues and design and siting issues. Among them are:
   • How the use or development conserves the values identified for the land in a schedule.
   • Whether use or development protects and enhances the environmental, agricultural and landscape qualities of the site and its surrounds.
   • Whether the site is suitable for the use or development and the compatibility of the proposal with adjoining land uses.
   • Whether the use or development will have an adverse impact on surrounding land uses.
   • How the use and development relates to sustainable land management and the need to prepare an integrated land management plan which addresses the protection and enhancement of native vegetation and waterways, stabilisation of soil and pest plant and animal control.
   • Whether the dwelling will result in the loss or fragmentation of productive agricultural 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.
   • The need to minimise any adverse impacts of siting, design, height, bulk, and colours and materials to be used, on landscape features, major roads and vistas.
   • The need to minimise adverse impacts on the character and appearance of the area or features of archaeological, historic or scientific significance or of natural scenic beauty or importance. The location and design of roads and existing and proposed infrastructure services to minimise the visual impact on the landscape.
2. Plan Melbourne 2017 - 2050 emphasises the important role of green wedges including for agricultural production and to avoid the permanent loss of such land from competing land uses, such as urban development and rural living.[18]
3. The provisions and policies address two considerations:
   • Land use; and
   • The physical form of the proposed development
4. I address these in turn (mindful of linkages between them).
5. The use of the land for one dwelling is acceptable. The land has been used for this purpose, in a similar location as the proposed building with a dwelling and bed and breakfast accommodation.
6. While the dwelling and guest rooms are located close to a side boundary, given the nature of the adjacent land use within the RCZ2, I do not consider that there is likely to be a significant impact on the activities on that adjacent land. These adjacent activities demonstrate, however, that land in this green wedge can be used for agricultural-type uses. The scale of the proposed facility, with no other information about the use of the balance of the cleared land, nor (for example) the management of the large stand of native vegetation, underscores the applicant's valid concerns with respect to both blurring the boundary between the urban growth area and the green wedge, and the urbanisation of the subject land in a location where this is not consistent with the outcomes sought by the scheme.
7. Further, I am not persuaded that the values identified in RCZ2 are conserved, as sought by the purpose of clause 35.06. I find that they would be diminished.
8. A low-key, modest, bed and breakfast facility may be acceptable in principle, but this proposal suffers from a lack of information about how the use relates to sustainable land management. It does not include a land management plan. There is no analysis or information as to how the land's environmental and other qualities are affected or supported. These concerns contribute to my findings that the proposed use does not meet the purpose of clause 35.06 and policy relating to green wedges. I do not consider it is adequate for the Council and respondent to say that the proposal is in proportion to the balance of the land without any apparent consideration of the land and values ascribed to the land under clause 35.06.
9. I next refer to the form of the development, including design and siting considerations. The building is proposed in a cleared area with no vegetation removal. It is close to the existing dwelling and in a location with stored items including shipping containers and near to an old shed. Removal of the old structures and shipping containers is a positive outcome.
10. The location for the building is effectively on a ridgeline. While the building has a substantial set back from Potts Road, it will be prominent by virtue of its elevated position, size, and bold contemporary styling. A large building is not necessarily unreasonable or out of character having regard to the lot size and form of development on adjacent land in the RCZ2. However, the position and form of the proposed building would not minimise the visual impact on the landscape or non-urban character.
11. I do not consider retention of the existing house, for storage, will have a substantial masking effect. However, there are other substantial structures evident within the RCZ2, albeit not of the scale of the proposal in a single form. Landscaping opportunities close to the building are limited by bushfire considerations. Landscaping to a significant height would likely block some of the commanding views that could be achieved.
12. With respect to the potential impact on the proposed reserve opposite the land, there is insufficient information to determine whether the proposal would detract from the values ascribed to, or experience of, the reserve. At the distance involved, this is likely to be less concerning compared with the above findings.

HOW DOES THE PROPOSAL RESPOND TO THE ADJACENT AND NEARBY QUARRY OPERATIONS?

1. A quarry abuts the rear boundary of the subject land. I understand that the quarry does not involve blasting. Other quarries are in the vicinity. The Council and respondent rely on the referral response from the Department of Economic Development, Jobs, Transport & Resources [Department] and comments from the Environmental Protection Authority [EPA]. Both bodies refer to concerns about this proposal for a sensitive use encroaching into the buffer of an active quarry. The Department states the proposal is inconsistent with the buffer provisions of the scheme, particularly clause 21.09.
2. The Department and EPA state the accommodation is said to be likely to be impacted by dust, noise and vibration on a daily occurrence. Amongst other things the responses indicate no objection to the permit application. The Department suggested a condition on any permit requiring a section 173 Agreement advising that the subject land may be affected by noise, dust and other amenity impacts during the process of any rehabilitation of the existing quarry. This condition is included on the Notice of Decision. I note it relates to rehabilitation and not to ongoing quarrying activities.
3. Ms Mellawa and Mr Truong observe other housing much closer to the quarry than the proposal.
4. Mr Ross draws attention to the proposed section 173 Agreement that, he submits, highlights the less than satisfactory situation and adds to the many reasons why the permit application should be refused.

1. The quarry is active, as are other quarries in the area. The Planning Policy Framework seeks to protect scarce extractive resources and to manage quarry activities ensuring conflict with surrounding uses does not occur.
2. It is policy in clause 21.09-2 to:[19]
   • Minimise the potential for conflict between extractive industry and other uses by ensuring that appropriate separation is maintained.
   • Ensure appropriate separation between extractive industry and other uses having regard to buffer distances recommended by the Environment Protection Authority
3. Beyond its current operation, policy in clauses 21.08 and 21.09 is to protect extractive and potential landfill sites from encroachment by housing and sensitive uses, that is, from incompatible adjacent development. The quarry adjacent to the subject land is identified in clause 22.06 (Protection of Future Potential Landfill Sites policy) as a potential future landfill site.

1. Locating the dwelling and proposed bed and breakfast operation within the buffer of the quarry, and potential landfill site, is problematic. It is evidently counter to policy at a State level as well as the express position in clause 21.
2. Moreover, it is self-evident that the proposed dwelling and bed and breakfast will be impacted by noise and dust, among a range of impacts identified by the Department and EPA. I do not consider it an acceptable outcome to site the accommodation facility in this setting. There appears to be a fundamental land use incompatibility of the type the scheme seeks to avoid. While there is reference to the vegetation at the rear of the subject land having a mitigating impact, the extent of any impact is uncertain.
3. Moreover, the proposal has the potential to affect future plans, should they arise, for re-use of the quarry site in the longer term. This too, appears to conflict with clause 22.06.
4. It is relevant that much more intensive housing is located effectively on the boundary of the quarry, closer than the proposed development in this permit application. This is evident in the image below.[20]

1. The presence of this residential area appears to have influenced a decision about the acceptability of the proposal within the quarry buffer area.
2. The scale and intensity of the guest accommodation use within the buffer raises broader questions having regard to the policies in clause 21 and 22.06, for which I have not been presented satisfactory answers. I doubt that imposing section 173 Agreements is an adequate forward-thinking solution to this issue and to the matter of orderly planning.

HOW DOES THE PROPOSAL RESPOND TO BUSHFIRE CONSIDERATIONS?

1. Mr Ross contends the permit applicant has not satisfied the bushfire policies and requirements in the scheme. The permit application should, he submits, be refused for this reason. He emphasises recent changes to the scheme with respect to bushfire protection including clause 13.02-1S.
2. The Council and respondent rely on the Country Fire Authority's [CFA] position in relation to this application and the ability to meet the requirements of the BMO through permit conditions.
3. Mr Truong tendered a plan showing how conditions could be complied with, such as defendable space. Both Ms Mellawa and Mr Truong submit that the proposal will satisfy clause 13 with the plans to be approved by the CFA and endorsed by the Council.

1. The subject land is within a bushfire prone area and a BMO under the scheme. No third party rights apply to an application under the BMO. However, bushfire is a relevant matter pursuant to clause 13.02-1S, clause 65, and in relation to integrated decision-making cited in clause 71.
2. Policy identifies the land is within a bushfire prone area, being mapped as such in clause 21.05. Further, clause 21.05 includes the following:

1. On the information available, the level of hazard has been identified and permit conditions proposed to address the high level of risk. The building is required to be constructed to Bushfire Attack Level 40. I do not consider the permit application should be refused because the conditions have yet to be complied with. I am satisfied, in the circumstances of this case and for the purposes of the planning scheme, that bushfire considerations can be addressed by permit conditions.
2. I am satisfied that bushfire protection measures can be adequately implemented.

1. For the above reasons, the Responsible Authority's decision is set aside. I find that the proposal is not acceptable when assessed under the relevant provisions of the Frankston Planning Scheme. It fails to achieve an acceptable outcome in RCZ2. The proposal's benefits to tourism and economic development, and ability to satisfy bushfire considerations, do not overcome or outweigh this conclusion. No permit is to issue.

[1] The area for the proposed use and development is not within ESO1.

[2] I have considered the submissions of all parties that appeared, all written and oral evidence, and all exhibits tendered. I do not recite or refer to all of the contents of those documents in my reasons.

[3] This is the advertised form of the proposal which also requires permissions as set out in the Information section of these reasons.

I note that a previous permit application for a farmer's market on the land was the subject of Application P37/2018. It was dismissed by order of the Tribunal dated 25 June 2018. A Cultural Heritage Management Plan was found to be required under the Aboriginal Heritage Act 2006 in respect of the proposed activity and, as an application for review under section 79 of the Planning and Environment Act 1987, it was dismissed for want of jurisdiction, and on the basis that it was misconceived, having regard to section 52(4) of the Aboriginal Heritage Act 2006.

[4] Gance v Monash [2010] VCAT 388 and McGeoch v Maroondah CC [2018] VCAT 1693.

[5] Land Use Terms Advisory Committee Discussion Paper, dated 27 February 2018.

[7] Only one dwelling is permitted under clause 35.06.

[8] Gance v Monash [2010] VCAT 388, [16], (footnotes included in the original).

[9] Shire of Perth v O'Keefe [1964] HCA 37; (1964) 110 CLR 529, 534-5; Cascone v City of Whittlesea (No. 1) (1993) 11 AATR 175.

[10] Cascone v City of Whittlesea (No. 1) (1993) 11 AATR 175.

[11] McGeoch v Maroondah CC [2018] VCAT 1693.

[12] I note a site management plan is required by permit conditions, but there is no information in the material before me on these and related management matters.

[13] I have assumed that the layout could be modified to address some of these queries.

[14] Noting eight dining seats are shown plus three lounge chairs.

[15] Regulation 46, noting accommodation is not a high impact activity. Regulation 48 addresses dwellings.

[16] The proposal complies with the conditions in clause 35.06 and 51.02 that the dwelling must be the only dwelling on the lot.