1. This is an application for review[1] by Roy Costa & Associates against the decision of Mildura Rural City Council to refuse application for a four lot subdivision at Lignum Avenue Red Cliffs.
2. The grounds for refusing the application are:
   1. The proposal is contrary to the objectives of the SPPF especially Clause 17.05 Agriculture as there will be a permanent change in the use of the land to residential purposes unrelated to Agricultural and Horticultural.
3. The proposal is contrary to the objectives of the LPPF especially Clause 21.04-4 Economic Development and Clause 22.06 Agricultural Land Policy as the proposed subdivision is creating 3 small allotments unrelated to horticultural production.
4. The proposal is contrary to the purpose of the Farming Zone as the subdivision is not encouraging the retention of productive agricultural land and will cause land use conflicts.
5. The proposal does not provide any real practicable benefit to horticultural use of the land.
6. Mr Costa argued the subdivision will enlarge the vineyard holding to a more viable unit of production and is supported because it is not increasing the number of lots.
7. Mr Costa claimed that if the subdivision is not supported then the production on the land will be removed and the water entitlements sold out of the district which is not supported by local planning policies and provisions. He claimed this will leave the land vacant; which will not be developed again for agricultural production; whereas the subdivision will enable production to continue and water entitlements maintained on the land.
8. Mr Costa also claimed the subdivision is consistent with recent initiatives including Amendment C30 to the Mildura Planning Scheme as adopted by Council on 5 July 2007 with a policy directive that supports a subdivision which:
   • will enhance the horticultural production of the land by increasing the vineyard holding towards a more viable unit of production.
   • the lots will be created for residential purposes will not be greater 1 hectare in area.

1. It is proposed to consolidate four odd shaped lots that were largely formed by old channel reserves. The subdivision would create three house lots each of 4000 square metres and a horticultural lot containing 8.76 hectares that has an existing dwelling.

1. Lignum Avenue is located between the Calder Highway and Kulkyne Way at the lower end of the "Chaffey Irrigation District" in Red Cliffs. The site is irregular in shape, is separated by channel reserves and has a total area of about 9.96 hectares.
2. Land the north, south-east and west is used for agricultural and horticultural purposes. The land forms part of a core horticultural area of Red Cliffs.
3. Land a short distance to the south is located in the dryland agricultural farming area.

1. The land is zoned Farming and is not affected by any overlay controls under the Mildura Planning Scheme. A permit is required under Clause 35.07-3 to subdivide land. A permit may be granted for subdivision of lots that are less than 40 hectares, and in this case the schedule to the zone specifies 10 hectares.
2. Clause 35.07-3 also limits further subdivision so that the number of lots is not increased and there would be a requirement for a Section 173 Agreement to ensure that the lots are not further subdivided to increase the yield.
3. There are various guidelines to be considered in Clause 35.07-6 in addition to those in Clause 65. These include:
   • General Issues: which includes:
     • assessing whether the site is suitable for the use or development and whether the proposal is compatible with adjoining and nearby land uses.
   • Agricultural Issues: which includes:
     • whether the use or development will permanently remove land from agricultural production
     • the agricultural qualities of the land, such as soil quality, access to water and access to rural infrastructure
   • Dwelling Issues: including;
     • whether the dwelling would 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
     • 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 land for agriculture
4. There are various State and Local planning policies and provisions of relevance which guide the exercise of discretion including:
   • Clause 17.05 Agriculture
   • Clause 21.01-3 Economic Development
   • Clause 21.02-2 Key Influences
   • Clause 21.03-1 Vision
   • Clause 21.04 Economic Development
   • Clause 22.06 Agricultural Uses Policy
   • Clause 65.02 Decision Guidelines

1. At the review hearing both parties tabled and read detailed written submissions and supplemented these with oral presentations, photographs of the subject site and locality plans. In addition, I had undertaken inspection of the site and neighbourhood prior to the review hearing. Having heard all the matters in this application I consider the principal issues to be determined are:
   • Is the proposed subdivision supported by State and Local planning policies?
   • Does the proposed subdivision lead to an outcome which is anticipated in the purposes of the Farming Zone?
   • Should I place weight, if any, on the proposed changes to the Local planning policy?

1. Under the current Red Cliffs Town Structure Plan[2] there is no reference to rural residential or lifestyle lots in the rural or farming areas of this section of Red Cliffs, and on the face of it, the general thrust of Clause 21.04 - Strategic Directions, seems to:
   • accommodate the demand for rural residential and low density residential development in planned estates[3]
   • discourage housing in locations where amenity may be negatively impacted by farming and related activities, or whether location of housing may inhibit rural activities[4]
   • discourage the excision of smaller lot s in horticultural areas[5]
   • minimise unplanned urban intrusion into horticultural areas[6]
   • discourage non agricultural use and development on land zoned Rural[7]
2. Mr Costa claimed the subdivision will enlarge the vineyard holding to a more viable unit of production. The lots current comprise

0.675 hectare lot which contains a dwelling and vines;

1. The subdivision will create three lots of 4000 square metres for dwellings and then provide an 8.76 hectare farm lot, with a dwelling.
2. I have difficulty accepting Mr Costa's assertion that the subdivision will enlarge the farm holding. On a simple calculation of the net size of the farm there will be a decrease in the horticulture areas. In examining the land and the proposed subdivision layout there will be in the order of 1.2 hectares of horticulture land removed from the farm holding. I note there was no evidence presented by an agricultural scientist or person with similar expertise to verify Mr Costa's claim.
3. The new lots will not support any horticulture but will be 'lifestyle" house lots set amongst horticultural activities. At present there is one house serving the four odd shaped lots. However, the farm layout bears little relationship to the current subdivision layout. From my observation of the farm holding, the subdivision will do little to directly improve the farm layout other than reduce its size and introduce three dwelling lots.
4. Clause 17.05 of the State section of the planning scheme seeks to ensure the states agriculture base is protected from the unplanned loss of productive agricultural land due to permanent changes in land use and to enable protection of productive farm land which is of strategic significance in the local or regional context. Implementation of this objective is sought through:
   • Permanent removal of productive agricultural land from the State's agricultural base must not be undertaken without consideration of its economic importance for the agricultural production and processing sectors.
   • Planning should support effective agricultural production and processing infrastructure, rural industry and farm-related retailing and assist genuine farming enterprises to adjust flexibly to market changes.
   • Subdivision of productive agricultural land should not detract from the long-term productive capacity of the land.
   • In considering a proposal to subdivide or develop agricultural land, the following factors must be considered:
     • The desirability and impacts of removing the land from primary production, given its agricultural productivity.
     • The impacts of the proposed subdivision or development on the continuation of primary production on adjacent land, with particular regard to land values and to the viability of infrastructure for such production.
     • The compatibility between the proposed or likely development and the existing uses of the surrounding land.
     • Assessment of the land capability.
5. The purposes of the Farming Zone seek, amongst other things:
   • To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.
   • To encourage the retention of productive agricultural land.
   • To ensure that non-agricultural uses, particularly dwellings, do not adversely affect the use of land for agriculture.
6. Clause 65.02 of the Planning Scheme calls upon the responsible authority, and therefore the tribunal, to consider as appropriate:
   • The suitability of the land for subdivision.
   • The existing use and possible future development of the land and nearby land.
   • The subdivision pattern having regard to the physical characteristics of the land including existing vegetation.
7. I consider the subdivision will lead to residential lifestyle housing amongst agricultural production. I am concerned this would lead to potential conflicts between residential land users and farm operations including the need to spray and operate machinery up to 24 hours a day. This subdivision is contrary to the above mentioned purposes and policy directives and there was no demonstrated evidence that the reduction in production area will lead to an improvement in agricultural production.

Does the subdivision lead to an outcome anticipated in the planning scheme?

1. Mr Costa claimed that if this subdivision is not supported then the production on the entire land will be removed and the water entitlements sold off out of the district. He claimed the owners of the property found it necessary to subdivide 1.2 hectares of the agricultural production land for housing purposes as the only way of paying for water rights for water and thereby maintaining their water rights because of the recent cost escalation of water during this drought period.
2. I am sympathetic to any landowner in this irrigation district during this exceptionally dry period. However, it would seem that the subdivision to enable the selling of the land to pay for such rights will, on the face of it, take out a relatively sizeable portion of productive horticulture land permanently to solve an immediate problem of financing water rights. I appreciate the current hardship that may be experienced by the owners but I suggest the solution is short sighted and would result in a very poor planning outcome.
3. This issue is not about issuing permits on the basis of hardship but rather it is about seeking good planning outcomes of the kind sought by the purposes of the zone and the State and Local planning policies appearing in the Mildura Planning Scheme.

1. Mr Costa referred the Tribunal to the proposed Amendment C30 to the Mildura Planning Scheme that he claimed the Council was applying now to subdivision applications. He claimed it was a "seriously entertained planning proposal". I have a number of concerns about defining Amendment C30 as a "seriously entertained planning proposal" at present and giving it much weight in the consideration of this matter. I am bound to consider the policies and provisions that appear in the planning scheme as of the date of decision.
2. The new local policy is found in proposed Clause 22.06 - Rural Areas Policy[8] with the critical parts stating:

In exercising discretion on planning permit applications for the use, development and subdivision of land in rural areas, Council needs to balance the historical land use and subdivision characteristics of an area with the emerging trends occurring in the agricultural and horticultural sectors. The key historical characteristics and agricultural trends within the irrigated and dryland farming areas include:

• The overall size of agricultural landholdings necessary for efficient and commercially viable production has increased in the dryland farming and irrigation areas.
• Significantly larger landholdings are being established in the new irrigated areas compared to the older irrigated areas.
• There is increasing reliance on off faun income to support horticultural enterprises in the older irrigated areas.
• Rural living opportunities should be provided in appropriately planned areas.
• There is an expectation amongst landholders in older irrigated areas that a vacant to carries an entitlement to a dwelling.
• There is an expectation that farming families will be able to retire on e land in family home.
• Redundant channel reserves and utility lots in rural areas are often irregular in shape and configured inappropriately to support the establishment of a dwelling.
• The introduction of tradeable water rights has led to some productive horticultural land being retired and either converted to a rural living use or left dormant.

• To retain rural land in agricultural production.
• To encourage the creation of larger agricultural lots.
• To encourage more productive and efficient agricultural landholdings.
• To minimise the establishment of small lots and dwellings unrelated to agricultural production unless they support the consolidation of agricultural lots.
• To facilitate the ongoing operation of productive and efficient dry land farming.

1. Mr Costa advised that the amendment has been exhibited, submissions received and modifications made to the policy to address the submissions, and was subsequently forwarded to the Department of Planning and Community Development for adoption by the Minister for Planning.
2. I am not persuaded to give substantial weight to the proposed policy because:
   • The Amendment has not been scrutinised by an Independent Panel.
   • Whilst the Amendment may, or may not, have been forwarded to the Department of Planning and Community Development (DCPD) for the Minister's approval, there is no indication, one way or another, whether this proposal will be adopted.
3. Moreover some of the initiatives proposed may run counter to Clause 17.05 and at least one of the purposes of the Farming Zone including discouraging of dwellings which have no relationship with agricultural production on the land.
4. I am not sure how much weight should be afforded to a proposed policy that gives.... "an expectation amongst landholders in older irrigated areas that a vacant lot carries an entitlement to a dwelling" or.. "There is an expectation that farming families will be able to retire on the land in the family home" is related to any of the purposes in the Farming zone
5. I note the Farming Zone was introduced into the Mildura Planning Scheme as recently as 21 September 2006 and I am wary of applying a draft policy that may undermine the provisions contained in that zone.
6. I consider that until it is scrutinised and some reconciliation of the apparent anomalies and contradictions as outlined above are made by the DPCD, that it would be prudent to give Amendment C30 little weight particularly as it may undermine the integrity of the Farming Zone provisions.
7. Even if the draft policy was given substantial weight the proposed subdivision does not respond favourably with it. This is not a residential lot excision. The subdivision actually reduces the amount of rural land in agricultural production and facilitates three lots for residential use that will have no relationship to agricultural production. It does not excise of the house from the remainder of the farm to enable the option of retiring on the farm.

1. During the hearing there was discussion about previous Tribunal decisions including Culfari[9] and I agree with Mr Vorchheimer's summation that

"..with respect, the test of real and practical benefit devised by the Tribunal in Cufari the proposal would not result in any real and/or practical benefit".

1. For the above mentioned reasons the responsible authority's decision is affirmed. The proposed subdivision is contrary to the purposes of the Farm Zone, the State and local planning policy framework and the draft policy. It would lead a poor planning outcome.

[1] Pursuant to Section 77 of the Planning and Environment Act 1987

[8] The current Clause 22.06 is called Agricultural Land Policy

[9] Cufari v Mildura RCC [2005] VCAT 1979