1. The surrounding land is subdivided into lots of varying size, with areas to the west and south having been historically subdivided into small rural-residential-sized allotments. The nature of surrounding land uses and development have no bearing on this decision.

1. Council refused the permit application without requiring advertising or referring the application to the Country Fire Authority as is required pursuant to Clause 44.06 before a permit is granted.
2. Council set out four grounds of refusal, the last of which it did not contest at the hearing because, due to an error, it is not applicable to the particular circumstances of this matter. The remaining relevant grounds are:
   • The land is not being used for intensive agriculture and cannot therefore meet the definition of host farm
   • The activities described as being in association with farm living are not considered to be farm activities
   • The use is inconsistent with the intention of the zone which is to encourage sustainable productive agriculture.

1. Having heard the oral and written submissions (the latter remain on the Tribunal's file), I concluded that it was not necessary for me to inspect the site. I concluded that, based on the information in the submissions, other Tribunal decisions to which the parties referred me and my own experience of farming practices, I could reasonably reach a conclusion as to whether I should support or reject Council's grounds of refusal.

1. Neither party contested the proposition that the existing barn is an acceptable structure in the landscape and does not cause any on-site or off-site detriment, that the proposed host-farm activities would have no effect on the success of existing agricultural activities on the subject or adjoining land and that the host-farm activities would cause no other environmental or social disbenefits.
2. A different point, that in my view proved to be of some relevance, is that the permit applicants operate four other tourist accommodation units in Healesville township.

Does the proposal comply with the definition of host farm?

1. The definition of host farm is very simple, though it is based on the subjective concept of "farm living", being:

A farm used to provide accommodation for persons, away from their normal place of residence, to experience farm living.

1. Mr. Bowden, relying in large part of the original officer's report, set out a number of reasons why the proposal did not satisfy the definition of a host farm. The essence of his argument was that, due to the large scale of the accommodation relative to the existing or proposed agricultural activities, the visitors' accommodation would be the dominant use, rather than being subsidiary to the farming activities.
2. Dealing with the second ground of refusal first, this ground states:

The activities described as being in association with farm living are not considered to be farm activities

1. Council's officer's report, as quoted by Mr. Bowden, argued that the test of whether the existing activities constitutes a farm was whether they involved the "dedication of land to production .... for sale" (or) "for income".
2. Macquarie Dictionary has a number of definitions of a farm, only a few of which are relevant:

1. a tract of land devoted to agriculture
2. a tract of land or water devoted to some other industry, especially the raising of livestock, fish, etc.: a chicken farm; an oyster farm

1. to cultivate (land)
2. to raise (livestock, fish, etc.) on a farm (def. 3).
3. Firstly, the dictionary definition does not include any reference to whether the production is for sale or not so that the absence of evidence to this effect is not fatal. I would, however, agree that this approach could not be extrapolated to argue that a domestic vegetable garden constitutes a farm, but in this case concluded that the scale of activity is quite beyond that of a purely domestic nature. Furthermore, I accept Mr. Ogilvie's submission that the purpose of the "farming" activities, which include modest numbers of sheep, pigs, cattle, horses, chooks, a recently established orchard of 110 fruit trees as well as a herb and vegetable garden, is in part to provide produce for four guest houses owned by the permit applicants and in part for sale to guests of their other tourist accommodation and elsewhere. I was provided with a brochure advertising four other within-Healesville accommodation units owned by the permit applicants that indicated that they are involved in the general business of providing holiday accommodation in and around Healesville, as well as brochures promoting the sale of their farm produce.
4. On this basis, I agree with Mr. Ogilvie that the existing use satisfies the definition of "farm", albeit it is only a small one. I note that the Tribunal has concluded, in another case, that a hobby farm can qualify as a host farm[1].
5. The second leg of Council's submission was that a host farm must provide "the experience of 'farm living'" and that the proposal would not do this.
6. Council's officer's report asserted

... the activities described are not considered to be in association with any intensive or productive agriculture and are considered to be normal uses ancillary to a dwelling.

1. In my view, the scale of activities is well beyond that which I would categorise as ancillary to a dwelling, i.e. being only for domestic consumption by the inhabitants of that dwelling. In this case, it is quite clear that these activities are not purely, or even largely, for domestic, on-site consumption in either an urban, urban fringe or rural-residential context.
2. A further leg of Council's argument was:

The land is not being used for intensive agriculture and cannot therefore meet the definition of host farm.

1. The Green Wedge zone includes no purpose referring to "intensive agriculture" and there is no such requirement as part of the definition of a host farm. Mr. Ogilvie pointed out that there is such a provision in Schedule 1 to the GWZ, though not in Schedule 5. I therefore dismiss this argument, as this ground of refusal appears to reflect an error.
2. During the hearing, I summed up the thrust of Council's argument, with Mr. Bowden's agreement, as being that Council's concern was that the overall operation of the alleged farm was too small to be a bona-fide farm and that the accommodation function would become the dominant use. With respect to the vague concept of "farm living", I accept that the paying guests at this establishment would be living in a rural environment where farming activities, as previously described, take place. I see no reason why I should conclude that it would be impractical for the farm manager to make visitors familiar with the farming activities through a variety of demonstrations and hand-on experience and this would, in a self-interested way, be essential if guests are likely to return or provide word-of-mouth recommendations for the accommodation.
3. I also consider that it would be unfair to expect such visitors to occupy themselves entirely with on-farm activities while staying on the host farm. It would be quite reasonably to also expect that resident visitors would use the host farm as a base for other tourist excursions in the locality or region. I do not consider that that would conflict with the operation of the land as a host farm.

Would the use be inconsistent with the intention of the zone, which is to encourage sustainable productive agriculture?

1. As Mr. Ogilvie pointed out, the GWZ has a number of objectives, including matters relating to ensuring sustainable land management practices, providing for a variety of productive agricultural practices and retaining landscape character and biodiversity. It includes conserving GWZ-land for its tourism opportunities.
2. However, we have here a situation where Council has accepted that:
   • There are no additional buildings required
   • The farming activities would not be affected by the introduction of resident-visitors, so that the related purposes of the GWZ would not be affected in any way
   • No detriment would be caused to any adjoining properties
   • No prejudice would be caused to any other objective of the GWZ.
3. I agree with the Tribunal's conclusion in a related case[2] that the purposes of the GWZ are designed to be more enabling than restricting, allowing the GWZ to be used for a range of uses, subject to maintaining an appropriate focus on agricultural activities. I also find the situation in respect to this proposal echoes that where Member Hewet found in favour of a host farm[3] on the basis that

... it would not contribute to a loss of agricultural land, it does not contribute to a fragmentation of rural land ownership and it does not involve the conversion of land currently used for agricultural purposes to non-agricultural use.

1. I have not found any other Tribunal decisions of any direct relevance as, where the Tribunal refused a permit for a host farm, the refusal was usually based on the particular merits of each case. However, there are a limited number of cases which Mr. Ogilvie cited and which I have found useful in reaching my decision.
2. The parties referred me to a number of other Tribunal decisions relating to proposals for host farms. Mr. Bowen cited a case[4] where the Tribunal refused a permit for a 60 hectare property with a proposed three dwellings, due primarily to a lack of adequate supporting information. In another case[5], the Tribunal approved the use of a second dwelling for tourism on the basis that this would be consistent with the purposes of Green Wedge Zone, noting

... Council seemed to have ignored the strategic goal of promoting appropriate tourism as ranking equal with other purposes ...

1. In this case, I note that Council's strategy as set out in Objective 5, Clause 21.04-2 seeks to

... provide for low impact tourist facilities which complement the distinctive rural and green wedge character and natural features of the Shire.

1. I find that the proposal will do precisely this without in any way prejudicing or conflicting with the primary use of the land for agricultural purposes.
2. In a number of other Tribunal decisions, a permit was refused for various kinds of tourist-related accommodation on the basis that the proposal failed the test of Clause 64.02, namely that

If a provision of this scheme provides that a use of land must be used 'in conjunction with' another use of the land:

• there must be an essential association between the two uses; and
• the use must have a genuine, close and continuing functional relationship in its operation with the other use.

1. However, in this case there is no provision in the planning scheme that imposes such a requirement in the first place, so that the two tests set out in this clause are not applicable.

1. For all the above reasons, I find that the proposal is appropriate and that I should direct that a permit be granted. I must therefore refer the permit application to the CFA, as discussed earlier.

1. Having determined to grant a permit, it is appropriate that I consider Council's draft permit conditions. I will need to re-examine these conditions when I have received the CFA's response to my referral.
2. Mr. Ogilvie submitted that Council's proposed Section 173 agreement is not appropriate, as it merely requires compliance with existing law. I agree with Mr. Ogilvie and, consequently, conclude that this condition should be removed.
3. Mr. Ogilvie raised the point that the original permit application had included a proposal that the land's entitlement to be used for bed-and-breakfast facilities could be included as a permit condition. Council's submission did not deal with this issue, as it focussed entirely on arguing that the proposal should be refused. This is therefore not a matter that I gave any serious consideration to during the hearing. However, the prospect of additional accommodation provided in a bed-and-breakfast (B&B) facility raises issues about the total scale of on-site, tourist-related accommodation and, in turn, a range of other potential, qualitative impacts that have not been considered here. I therefore conclude that there should not be any proposal for B&B accommodation without the further approval of Council. As a B&B facility is a section 1 use in the GWZ, such a limitation must be imposed through a Section 173 agreement rather that as a permit condition.
4. I also concluded that Condition 9 should be deleted as it is more properly an advisory note and should be treated as such.

[1] Buxton v Yarra Ranges SC [2004] VCAT 1896

[2] Buxton v Yarra Ranges SC [2006] VCAT 1645

[3] Dawkins v Wellington SC [2003] VCAT 353

[4] Barry v Wellington [2008] VCAT 2354

[5] Buxton v Yarra Ranges SC [2006] VCAT 1645