Sharkey Noel v Golden Plains SC [2001] VCAT 2220

"Subject to issue of a planning permit by the Responsible Authority".

Sharkey Noel v Golden Plains SC [2001] VCAT 2220 | Case summary | Zoe

[50]

16. These provisions in relation to subdivision and rural houses represent controls imposed in relation to rural land to prevent one of the most persistent and pervasive problems of rural planning. I refer to the prevalent desire of many owners of rural land to capitalise on the potential residential value of such land by cutting it up into rural residential or hobby farm allotments which are essentially residential in character. It is recognised in the purposes, controls and decision guidelines of this Rural Zone in this planning scheme, as it has been for decades in planning schemes covering rural land in country municipalities, that farming land must be kept in substantial allotments for farming purposes, and not fragmented into little bits that are not useful or viable for farming, but only good for residential, including hobby farming, purposes. Going hand in hand with controls over subdivision to prevent such fragmentation there are here, as there have been in similar planning schemes affecting similar land over the decades, provisions to prevent the proliferation of rural houses that are not required as farmhouses or to accommodate farmers or farm workers. The problems involved in such proliferation and fragmentation have been discussed in many Tribunal decisions over the last 30 years. In this connection I recall my own decision in Searls v Romsey No. 1 (Planning Appeal 1990/13135) noted at [1990] 5 AATR 306 and Searls v Romsey No. 2 (1991) 24963) noted at [1991] 8 AATR 4. Such cases have noted the detriment to genuine farming occasioned by the presence of non-farming activities, the inefficiency of servicing scattered rural residential populations and the demand they generate for town services at great expense, the importance of confining essentially residential uses to urban areas or specially designated rural residential areas, the non-viability (for farming purposes) of small fragments of land and the undermining of the economic viability of farming such land by exaggerating its per acre value on the basis of residential value to levels far higher than are sustainable by any normal farm activities. However, the prospect of substantial windfall financial gains by land owners seeking to exploit residential value has ensured that rural responsible authorities and this Tribunal and its predecessors have been called upon to deal with a continuing stream of applications for rural subdivisions, excisions and rural houses, only a small proportion of which can be justified on the basis of sound urban and rural planning merits.

[125]

37. If correct, these submissions would appear to place the Responsible Authority, and on review the Tribunal, in a position of having to make a decision in a complete vacuum as to the zone and overlay purposes and guidelines and as to policy. At best, Mr Morris argues, the discretion vested in the Responsible Authority is now limited to determining the size and shape of allotments and where allotment boundaries are to be. Even that will be difficult to determine, if it is not to be considered in terms of relevant purposes and policies in the planning scheme. This would seem to be a revolutionary overturning of the major thrust of the reforms introduced with the Victorian Planning Provisions (VPP) amendments to the PE Act and the introduction of the new format planning schemes, including this one, pursuant to those provisions. There are various aspects of the new Victorian Planning Provisions approach, but if there is one that is emphasised in importance above others it is that planning decisions are to be based upon planning policies set out, sometimes at bewildering length, in the VPP planning schemes. The policy and purpose provisions relevant to a particular decision may be difficult to apply in some cases, because of their excessive length, repetitions, conflicts and, in some instances obviousness; but they are intended to be the basis of planning decisions. However, whatever might be said about the present state of some policy provisions, there can be no doubting the central importance of policy under the Victorian Planning Provisions and the new format planning schemes, all instigated as a major reform to planning in Victoria, initiated and carried through under the administration of the very Minister who granted Amendment L10 to the previous Golden Plains Planning Scheme. It is radical indeed to suggest that here, under the successor provision to Amendment L10, that there is to be a planning decision made, granting or refusing a planning permit, that is not informed and guided by relevant purposes and policies in the planning scheme.

[126]

38. It is radical, not only because of the central importance of the consideration of purposes and policies under the VPP provisions and planning schemes, but because such considerations have always been central to such planning decisions. The planning schemes in force before the current new format ones also contain many policy provisions and statements of purpose. They were always to be the basis for making such decisions, even if some current rhetoric in relation to the VPP provisions might suggest otherwise. The new format planning schemes merely elaborate purpose and policy provisions that were always of central importance, even if in current form some of them call for further clarification. The progressive introduction of policies, purposes and statements in pre VPP planning schemes were of considerable assistance. The attempt now seems to be to state all such policies and purposes explicitly. Twenty-five years ago, when explicit statements of policies and statements were scarce in planning schemes, they were still of central importance. Responsible authorities and the planning tribunal were called upon to consider what the relevant purposes and policies were, recognising that they were frequently implicit, rather than explicit, in the planning schemes and interim development orders of those days. Sometimes there was debate and sometimes there was doubt about what the principal purpose of a particular zoning might be. It was frequently an important, a fundamentally important consideration, in a particular case. It was necessary to look at the name of the zone and the nature of the controls or restrictions imposed to see what the purposes and policies were. Perhaps a good example was the restriction imposed, even in those days, on the minimum size for rural subdivisions and other restrictions in relation to rural houses. It was not really very hard to see that the purpose of a restriction on subdivisions creating lots below an area of, say, 100 acres, was to avoid the fragmentation of rural land, and to keep it in large pieces suitable for broadacre farming in areas where land was intended to be kept available for that important purpose.

[179]

67. The site specific control provision does say that subdivision is subject to the grant of a permit. Although one would expect the requirement for a permit to be in the substantive provisions of the scheme, it does appear that this incorporated document creates the possibility of a permit, and on this basis Mr Morris has justification for saying that the application is made under the site specific provisions. He also says that it is made under that provision rather than, and to the exclusion of anything in the Rural Zone controls in Clause 35.01. However, on my interpretation he has only the benefit of being allowed, subject to the grant of a permit, a development that would otherwise be prohibited by Clause 35.01. On this basis it seems to me that Clause 35.01 still applies subject to the qualification that these developments are allowed by the specific control in the incorporated document where they would otherwise be prohibited under Clause 35.01. They are allowed but this is always subject to the grant of a permit. I therefore consider that the purposes and decision guidelines in that clause remain applicable, subject to the qualification of what is now allowed by the specific control though it would otherwise be prohibited. I also think that other policy provisions in the planning scheme, which would be applicable in any event, remain applicable notwithstanding the site specific controls. A provision that allows something "subject to the grant of a permit by the Responsible Authority" involves the Responsible Authority in having a discretion as to whether to grant the permit or not, as well in relation to what conditions will be imposed if a permit is granted. So far as the application requirements in Clause 35.01-5 are concerned, when an application is made for a permit for subdivision the requirements must be complied with. In this case, even if the application is viewed as being made under the specific control, those things, which are sought in the further information request under s. 54 PE Act, are relevant for the purposes of considering the application including considering the purposes of the zone, the decision guidelines in the zone and any additional objectives and performance requirements set out in the Local Planning Policy of the Scheme.

At a glance

Court

Decision date

Source

Judgment (212 paragraphs)

Sharkey Noel v Golden Plains SC [2001] VCAT 2220 (30 November 2001)

Parties

Legislation Cited (1)