The decision of the Responsible Authority is set aside. A permit is granted for Application No. 576/2004/14P for the re-subdivision of land into two lots and use Lot 2 for a dwelling at 205 Menzies Road, Kangaroo Ground, particularly described as Crown Allotments 14 and 15 on TP605914C, generally in accordance with endorsed plans and subject to the following conditions:

1. The re-subdivision of two (2) existing allotments and use of lot 2 for a dwelling, as shown on the endorsed plan/s must not be altered without the written consent of the Responsible Authority.

2. Prior to the plan of subdivision being certified under the Subdivision Act 1988, a Land Management Plan shall be submitted to the Responsible Authority and must be generally in accordance with the 'Plan of Proposed Boundary Re-alignment' dated August 2004. The plans must be drawn to scale, dimensioned and prepared by a suitably qualified and experienced person or firm and shall show the following:

i. Details of a pest plant and animal control strategy for both lot 1 and lot 2.

ii. Details of the protection and enhancement of the riparian area which traverses the eastern and southern boundary of lot 1 and lot 2.

Six copies of the Land Management Plan shall be submitted to the Responsible Authority and an endorsed copy of such plan shall form part of this permit.

3. Prior to the certification of a plan of subdivision, the owner of the land must prepare and enter into Agreements with the Responsible Authority under Section 173 Agreements of the Planning and Environment Act 1987. Two separate agreements are to be registered on each of the titles within the subdivision, and the permit holder must pay all costs associated with the Agreements including the Responsible Authority's legal costs in reviewing the Agreements.

The Agreement pertaining to Lot 1 shall require that:

a)

The endorsed Land Management Plan under planning permit 576/2004/14P shall be carried out to the satisfaction of the Responsible Authority.

b)

Each lot created as shown on the endorsed plan may not be further subdivided so as to increase the number of lots.

The agreement pertaining to Lot 2 shall require that

i. All future buildings and works on Lot 2 must be constructed within the defined building envelope designated on the endorsed plan except with the prior written consent of the Responsible Authority.

ii. The endorsed Land Management Plan under planning permit 576/2004/14P shall be carried out to the satisfaction of the Responsible Authority.

iii. All sewerage and sullage waters shall be treated in accordance with the requirements of the Environment Protection Act 1970, the Code of Practice - Septic Tanks 2003 and the Council. All wastewater shall be disposed of within the curtilage of the land and sufficient area shall be kept available for the purpose of wastewater disposal to the satisfaction of the Responsible Authority. No wastewater shall drain directly or indirectly onto an adjoining property, street or any watercourse or drain.

iv. Approval of wastewater disposal must be obtained form the Environmental Health Unit prior to a Building Permit being issued.

v. All effluent must be disposed of within the designated effluence envelope or to the satisfaction of the Responsible Authority.

vi. All effluent must be disposed of within the designated effluent envelope or to the satisfaction of the Responsible Authority.

vii. Vehicular access and egress to the subject land from the roadway must be by way of a vehicle crossing constructed to the requirements of the Nillumbik Shire Council to suit the proposed driveway and the vehicles that will use the crossing. The Responsible Authority must approve the location, design and construction of the crossing. Any existing unused crossing must be removed and replaced with nature strip to the satisfaction of Council. All vehicle crossing works are to be carried out with Council supervision under a road opening permit.

viii. Each lot created as shown on the endorsed plan may not be further subdivided so as to increase the number of lots.

4. The owner of the land must enter into agreements with the relevant authorities for the use and provision of water supply, drainage, sewerage facilities, electricity, and telecommunication services to each lot as shown on the endorsed plan in accordance with the authority's requirements and relevant legislation at the time.

5. All existing and proposed easements and sites for existing or required utility services and roads on the land must be set aside in the plan of subdivision submitted for certification in favour of the relevant authority for which the easement or site is to be created.

6. The plan of subdivision submitted for certification under the Subdivision Act 1988 must be referred to the relevant authority in accordance with section 8 of that Act.

7. The subdivision must satisfy the following Melbourne Water requirements:

i. The LSIO overlay remains over the proposed new allotments to be created.

ii. Prior to Certification, the Plan of Subdivision must be referred to Melbourne Water, in accordance with Section 8 of the Subdivision Act 1988.

8. This permit will expire if one of the following circumstances applies:

• The subdivision is not commenced within two years of the date of this permit.

• The subdivision is not completed within five 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.

Melbourne Water Note:

The Yarra River is in the vicinity of the property and a portion of the land is subject to flooding.

If further information is required in relation to Melbourne Water's permit conditions shown above, please contact Brian Clarke on telephone 9235 2243, quoting Melbourne Water's reference 112316.

1 This is an application brought by the permit applicant against Council's refusal to grant a permit to re-subdivide the existing two allotments and use Lot 2 for a dwelling for land known as 205 Menzies Road, Kangaroo Ground. The grounds of refusal were that the proposal is contrary to the objectives of the State and Local Planning Policy Frameworks to protect and maintain viable agricultural use, and will result in the fragmentation of nominated 'green wedge' area, which is contrary to Council's Municipal Strategic Statement and Melbourne 2030. This refusal was contrary to Council officer recommendation to grant a permit subject to conditions.

2 The review site is located on the west side of Menzies Road in Kangaroo Ground. Menzies Road is off Henley Road not far from the Eltham-Yarra Glen intersection. It is comprised of two titles, volume 10803 Folio 618, Crown Allotment 14 Section 4A Parish of Nillumbik, and Vol. 10803 Folio 619, Crown Allotment 15 Section 4A Parish of Nillumbik. The two allotments are currently under one ownership, which is the family of the review applicant. Crown Allotment 14 has an area of 20.23 hectares, and CA 15 35.12 hectares. The combined area is approximately 55 hectares. River Yarra forms the eastern and southern boundaries. The site is used for agriculture, with irrigated cropping in the river flats and general grazing elsewhere. A group of buildings comprising of a residence, outbuildings housing tractors, farming and pumping facilities and agricultural produce are located in Crown Allotment 14, whilst the cropping area (river flats) is in Crown Allotment 15.

3 The proposal is to re-subdivide the land the existing two lots and for a house in Lot 2. The end result is that Lot 1 will have an area of 40 hectares comprising of the irrigated areas, the existing residence and all the outbuildings housing farming and pumping equipments. Lot 2 will be the balance of the land with an area of 15.4 hectares. A house site with an effluent disposal field is proposed for this lot. The building envelope of this house is set 30 metres from Menzies Road. The proposal does not involve removal of vegetation or relocation of structures.

4 The review site is in the Rural Conservation Zone - Schedule 4. A permit is required to subdivide land. Schedule 4 of the zone requires a minimum subdivision lot size of 40 hectares. A planning permit is also required to use Lot 2 for a dwelling.

5 Part of the site is affected by the Environmental Significance Overlay Schedule 1 and 2, and the Land Subject to Inundation Overlay. Under these overlays, a planning permit is required to subdivide land.

6 Clause 57 - Metropolitan Green Wedge Land applies to the site as the land is zoned Rural Conservation and outside the Urban Growth Boundary. This clause stipulates that only one dwelling may be constructed on a lot. Clause 57.03 provides the deeming provision regarding the substitution of the Environmental Rural Zone with the Rural Conservation Zone.

7 The main policies affecting the proposal are Clauses 11, 12, 17.05 (agriculture), 21.05-2, 21.05-3, 22.02 and 65.2.

8 At the hearing, Council relied on a written and oral submission. Mr. Sharpe, owner of the land, gave a background to the agricultural activities on the land. At the conclusion of the hearing, I gave an oral decision in setting aside Council's decision to refuse the application. These reasons are to confirm that decision.

9 The main issues of this review are whether Council's grounds of refusal, that is agricultural viability and fragmentation of land are justified, and whether the siting of the dwelling proposed for Lot 2 is appropriate. There is no issue with loss of vegetation, as the site is mostly cleared for farming and the proposal does not involve removal of trees.

10 As part of Council's consideration of the proposal, it has been referred to all the relevant authorities, including Department of Sustainability and Environment, Council itself as the owner of adjoining land (Scout camp), Melbourne Water, and its various internal departments. No objection was received from these bodies. The application was also advertised. No objection was received from the parties to whom notices were given. However, I understand from Council that two objections were received from the Green Wedge Protection Group Inc. and Friends of Nillumbik. They are not parties to the proceeding.

11 The objectives to maintain agricultural viability and prevention of fragmentation of land are themes for urban fringe, green wedge and rural areas. They are well expressed in Clauses 12 (Metropolitan Development underpinned by of Melbourne 2030), 17.05 (Agriculture), 21.05-2 (Rural Land Use), and 21.05-3 (Environment Conservation and landscaping to encourage sustainable land management).

12 The two allotments comprising the review site has a total area of just over 55 hectares: one has an area of 20.23 hectares (CA14), and the other has 35.12 hectares (CA15). The land is in one ownership. The allotment boundary, however, bears no relationship to how the land is used or developed at present.

13 The farm is comprised of rich river flats and a more hilly area to the north which drops to the River Yarra. The river flats are cropped with irrigation from water from the river. The farm has pumping rights from the River Yarra. Aerial photographs submitted clearly show the irrigation routes of the river flats. The current allotment boundary between CA14 and CA15 cuts across the river flats and through the irrigation routes. The bulk of the river flats are located in CA15, but the existing residence, sheds housing tractors, farming and the pumping equipments are located in CA14. If the land is not re-subdivided and boundary re-aligned, CA15 will end up with the bulk of the irrigated areas but no house and no equipment, and the irrigation routes for water from CA14 severed. CA14 will end up with the house, all the equipment but little land to irrigate. The balance of land away from this irrigated area is not as productive and mostly used for grazing. One way of describing the current situation is that the man-made improvements and activities of the farm since the creation of the crown allotments have rendered the current boundary redundant and obsolete.

14 Mr. Sharpe current farms the land. The proposed re-subdivision is to ensure that the currently irrigated and productive part of the farm stays together with the house and all the sheds, pumping and farming equipments, in case his descendents wish to sell the farm. The result of the re-subdivision will be that the productive irrigated parcel of land with all the equipments will be within the same parcel of land. As a result, this parcel of land will be increased in size to a total of 40 hectares, the minimum lot size for the Schedule to the zone. As such, it cannot be further subdivided. Lot 2 will comprise of 15.4 hectares and its own frontage to the road. This parcel is grazing land and not as productive as Lot 1. Although the application is to use this lot for a dwelling, it was council officer's recommendation to do so, with the siting of the building envelope and effluent disposal field also recommended by council officer. I will deal with the proposed dwelling on Lot 2 later.

15 The information before me persuaded me that the re-subdivision is in the interest of maintaining the viability of the farm. To the contrary of Council's view, retaining the existing lot boundary will harm the viability of the farm, as the existing boundary alignment breaks up the fertile irrigated river flats, reduces the size of the productive part of the farm, severs the existing irrigation routes, and separates all the farm supporting facilities from the productive part of the land.

16 The two allotments are currently in two titles. They can be sold off separately and managed separately. Although the current CA14 has no direct access to the road, it is not out of the question that an easement or right-of-way can be created to access the house located at the southern end of the land. In other words, unless the land is re-subdivided and boundary realigned, the danger of losing the viability of the existing farm is very real.

17 As for Council's concern that the proposal will result in fragmentation of the land, there is no support for such an argument. There is no increase in the number of allotments. It is a re-subdivision of the existing two lots. It is a re-alignment of allotment boundary resulting in a future scenario that that there can be no further subdivision of land, unless there are changes to the Planning Scheme.

18 The second part of the application is to use Lot 2 for a dwelling. Lot 2 is generally the northern and eastern portions of the land. A building envelope with an effluent dispersal area is shown on the submitted plan. They are located on the northwest corner of the land. Mr. Sharpe advised that his original proposal was not to include a house site as he does not intend to build a second house on the land. It was recommended by Council officer and the siting of the house site was also recommended by Council officer. A letter from Council dated 7 December 2004 requiring amendment to the proposal before advertising confirmed council's position on the siting of the building envelope.

19 The siting of the proposed building envelope is consistent with the guidelines of Clause 22.04. Besides, if a house is to be built on Lot 2, it is imperative that it is well screened from the road and sensitively located in relation to the land form and the river. In this, I agree with Council officer that the north-west corner of the site is most appropriate. The building envelope is located 30 metres away from the road frontage and behind a mound. With existing trees along the street frontage and this mound, it is well screened from the road. It is also on fairly flat land, furthest away from the River and not at the highest part of the site. I also understand that a separate permit will be required for the proposed dwelling as a permit is required for buildings and works.

20 The proposed re-subdivision of two lots, contrary to Council's view, is to assist in the viability of the existing farming and agricultural activities of the land. It is consistent with the policy intent for rural land in the Green Wedge area. The siting of the dwelling proposed for Lot 2 is appropriate. The 'without prejudice' permit conditions were discussed. They were the conditions recommended by Council officer in supporting the proposal. I find them reasonable.

21 Hence, Council's refusal is set aside and a permit is granted for the proposed re-subdivision and use of a dwelling on Lot 2 subject to the conditions recommended by Council officer.