The Tourism Industry Regulatory Reform Task Force's report to the Minister for Tourism, Tourism Industry Regulatory Audit/Reform - Final Report, recommended in relation to small tourist accommodation, 'exempting accommodation with six or less guests, where the resident lives on the property, from the requirement to obtain a planning permit'. The recommendation is supported by the Minister for Tourism and the Minister for Planning and Local Government.

The Amendment amends the residential and rural zones in the Victoria Planning Provisions to allow up to 6 persons away from their normal place of residence to be accommodated in a Bed and breakfast without a permit, provided one car parking space for each 2 persons able to be accommodated away from their normal place of residence is provided.

1. The Council's submission was made in its Right of Reply. It says that the Applicant's opinion is not widely held. It says that the common perception is that 'the dwelling use comes first, and the Bed and breakfast use comes later.' It asks the question: 'What would happen to the dwelling in Mr Smout's scenario if the Bed and breakfast use ceases?'

1. I find against the Applicant's submissions. I interpret clause 35.07-1 as allowing a dwelling without a permit only if it meets the conditions that apply to such a use.
2. I read the intent of Amendment VC4 as allowing a resident of a legally established dwelling to add the land use Bed and breakfast without a permit if the conditions that apply to that use are met. Where the Amendment says where the resident lives on the property, I find the proper interpretation is to assume that the use of the land for a dwelling is legally established.
3. I read the intention of the phrase 'Dwelling (other than Bed and breakfast)' as exempting a proposed Bed and breakfast use from the conditions that apply to a dwelling. On this reading, a legally established dwelling on a lot that is smaller than the specified area could have a Bed and breakfast without a permit. The intention is to treat all legally established dwellings in the same way.
4. I admit that the wording of the Scheme may be ambiguous. Faced with this, I rely on the Tribunal's decision in Vestey where it was said that:

[17] the particular provisions of the scheme (which is subordinate legislation) should be interpreted in the context of their object and purpose at the first instance.

1. The context of the controls in this case is to ensure agricultural activities can occur without undue impediment. The Applicant's interpretation allows a dwelling without a permit on any lot in the Farming Zone, including on small lots in agricultural areas. As a matter of principle, this does not accord with the purpose of the Zone.
2. In practice, the Zone allows land to be used for a dwelling on lots that are smaller than the specified area if a permit is granted. This allows an assessment against the relevant policies and provisions to determine if this use is acceptable. It would be contrary to the purpose and structure of the Farming Zone if a dwelling was allowed 'as of right' provided it was associated with a Bed and Breakfast use.
3. Prior to making these findings, I reviewed all previous decisions of the Tribunal referred to by the Applicant.[4] These decisions do not support their submissions. In most cases, a legally established dwelling existed on the land and the contest was over whether the proposed use was a Bed and breakfast or Group Accommodation. Alternately, the permission sought was for a dwelling, with the Bed and breakfast use being an adjunct.
4. The Applicant highlighted Rossi as a pertinent example. The Applicant in that case proposed to construct a dwelling that would be used for tourist-based accommodation (Bed and breakfast) and noted that this use did not require a permit in the Zone. However, the Tribunal's finding was that:

[10] The proposed use of the dwelling for a bed and breakfast is relevant but is not of itself sufficient to establish the acceptability of the proposed dwelling. I must be satisfied that the proposed dwelling is an acceptable use of the land and in the event that I am persuaded about that, the bed and breakfast use could be established without further planning approval. The intention to use the dwelling as a bed and breakfast is not a justification for the granting of a permit for a dwelling in the first instance.

1. After due consideration of the purposes of the Farming Zone; the location of this site; and the circumstances by which it was created, I find its use for a dwelling is acceptable.
2. The Applicant persuades me that it has no value as grazing or cropping land due to the extent of exposed rock; and has no opportunity to be used for intensive horticulture because it is in a water catchment. In his submission, the farmer who owned the land subdivided it away from the productive parts of their farm in 1983, when they had the opportunity to do so.
3. These would not be sufficient reasons had the site not, to all practical purposes, been located in the settlement of Springfield. This small settlement consists of small lots in a wedge between two main roads and many of the lots directly opposite on the outside of this wedge. The review site is between two farm-based dwellings near the road, with their farmland extending outwards from the settlement. In effect, a dwelling on this lot will fill a gap between these dwellings.
4. For these reasons, I find against the Council's grounds of refusal, which are:

The proposal is contrary to Clause 14 of the Planning Policy Framework as it does not protect productive farmland due to inappropriate fragmentation which will compromise the long-term capacity of the land to be used for agriculture.

The proposal is contrary to Clause 21.07-1 of the Local Planning Policy Framework as it fails to demonstrate and provide adequate justification that the dwelling is required for sustainable agricultural pursuits.

The proposal is contrary to Clause 21.09-2 of the Local Planning Policy Framework as it fails to ensure that the development is sustainable and gives priority to the environment and landscape.

It is acknowledged that the size of the land is limited to sustain any agricultural use however there is potential for consolidation the subject land into larger allotments within the immediate vicinity.

The proposal is contrary to the purposes and decision guidelines of the Farming Zone as the dwelling will exacerbate the fragmentation of existing farmland and holdings, remove land from agricultural use, and facilitate an opportunity of a non-agricultural use (dwelling), that would be incompatible with and adversely affect the adjoining and nearby uses for agriculture.

The proposal would result in the proliferation of dwellings, and degradation of agricultural land (by fragmentation).

1. I note that the objective of Clause 14.01-1S is:

'To protect the state's agricultural base by preserving productive farmland'.

1. The Applicant has persuaded me that this lot is not productive farmland due to the extent of surface and sub-surface rock.
2. I note that the strategies to achieve this objective include to:

Avoid permanent removal of productive agricultural land from the state's agricultural base without consideration of the economic importance of the land for the agricultural production and processing sectors.'

1. In this case, I am satisfied that the removal of this non-productive farmland is not economically important.
2. Another strategy is to:

• Directing housing growth into existing settlements.
• Discouraging development of isolated small lots in the rural zones from use for dwellings or other incompatible uses.
• Encouraging consolidation of existing isolated small lots in rural zones.

1. Due to this site's location, I am satisfied that it is not an 'isolated small lot'. I accept that, unlike the dwellings within the wedge of the Springfield settlement, it is not in the Rural Living Zone. However, I have described that the actual pattern of settlement includes several dwellings directly opposite this wedge, and that this dwelling fills a gap in this existing settlement pattern.
2. I also consider that its use for a dwelling is compatible with its surrounds. It is directly opposite small lots used for residential purposes and it is adjacent to the dwelling of the adjoining farm. The balance of existing residential and agricultural uses will not be significantly altered if this site is used for a dwelling.
3. Separately, I do not see this site as a candidate for consolidation with adjacent farming land due to its poor productive capacity.
4. I note that the objectives and strategies of Clauses 21.03, 21.04 and 21.09 expand upon the objectives and strategies of Clause 14.01-1S.
5. Clause 21.04 on Settlement seeks to limit residential development in smaller settlements identifies that 'there may be occasional opportunities for small infill development' provided the role, size, services and character remains the same. I am satisfied that filling this 'gap' in the outer edges of Springfield achieves these objectives.
6. This clause also seeks to limit residential development of land outside the Rural Living Zone unless it is related to the use of land for agriculture or other appropriate economic development.[5]
7. I find this strategy is, in part, contrary to Planning Scheme Amendment VC103 on reform of the rural zones, as consideration of 'whether a dwelling is reasonably required for the operation of an agricultural activity on the land' was deleted from the decision guidelines of the Farming Zone. As such, I do not give weight to this aspect of the strategy. Otherwise, I note the Applicant's intention to use the dwelling for a Bed and breakfast use and consider this is an appropriate economic development.
8. I also note that this clause seeks to ensure that use and development in settlements have regard for environmental constraints. A strategy towards this end is to:

limit development where reticulated sewerage systems are not available, not planned or subject to poor drainage, including Spring Hill, Cherokee, Benloch, Monegeetta, Darraweit Guim and Newham.

1. In this case, the relevant water and sewerage authorities are satisfied that wastewater can be properly managed on-site and do not object to the grant of a permit.
2. Having reviewed Clauses 21.04 and 21.09, I find that they reiterate the themes outlined above. I accept that there is a clear intent to avoid additional rural residential lots, yet this cannot be read as a prohibition on such development. Policy is a guide in the exercise of discretion of what is allowable under a Zone and cannot replace the considerations of the merits of a proposal for a particular site.[6]
3. In turning to the Zone, the proposal meets the mandatory requirements of Clause 35.07-2, and the Council does not contest the proposed buildings and works.
4. Regarding the Zone's purposes, I have found that the proposal does not affect the retention of productive agricultural land, and that its use for a dwelling does not adversely affect the use of nearby land for agriculture.
5. Regarding the Zone's decision guidelines on dwellings, I consider that the dwelling will not result in the loss or fragmentation of productive agricultural land. The lot is in existence and it is not productive agricultural land.
6. I have also found that the dwelling will not be adversely affected by agricultural activities on adjacent and nearby land given that it is adjacent to the 'home paddocks' of the adjacent farm and is opposite other dwellings on small lots. For these reasons, I am satisfied that the dwelling will not adversely affect the operation and expansion of adjoining and nearby agricultural uses.
7. Finally, I do not see that approving the use of this land for a dwelling has the potential to lead to a concentration or proliferation of dwellings in the area. The site is in an uncommon relationship with adjoining farmland in that it fills a gap in the existing pattern of development in Springfield. I do not see it as promoting additional housing on the outskirts of this settlement or deeper into the agricultural hinterland.
8. In submissions, the Council relied on several Tribunal decisions where proposals for dwellings in the Farming Zone were refused. I am not persuaded that these are directly on point.
9. The Tribunal's decision in Ward v Macedon Ranges SC[7] was relied on to stress the importance of consolidating small lots. However, Ward related to a dwelling on a 24-hectare lot in open farmland some distance from any settlement. The size and locational attributes of the site before me differ enormously.
10. I consider that the Tribunal's decision in Mengler v Hepburn SC applies the same principle.
11. The Tribunal's decision in Morabito v Macedon Ranges SC relates to a proposed hobby farm in an area outside Kyneton that contained open agricultural land and other hobby farms.[8] The potential for proliferation of hobby farms was relevant to the Tribunal yet I do not see the same potential in the case before me.
12. I consider that the Tribunal's decisions in Webster v Golden Plains SC applies the same principle.[9]
13. The Tribunal's decision in Victorian Department of Treasury and Finance v Macedon Ranges SC[10] related to a small lot adjacent to a very small cluster of dwellings in an open farming area. The land was regarded as being agriculturally productive and was an obvious candidate for consolidation with the adjoining farm. The case before me differs in that the site is ostensibly in the settlement of Springfield, fills a gap between two existing dwellings and is not agriculturally productive.

1. The Council queries the appropriateness of the use given the site is in a Bushfire Prone Area. I consider the use is acceptable given the site has good access to major roads to enable evacuation at an early state. I also note that conditions on the permit require a potable water supply with a storage capacity of at least 10,000 litres must be provided to the dwelling for domestic use and firefighting purposes to the satisfaction of the Responsible Authority.

1. I have reviewed the draft conditions circulated by the Council and have made the following changes:
   1. I have deleted the condition requiring an Asset Protection Permit as this is addressed by other legislation and is not a valid condition on a planning permit; and
   2. I have replaced the last paragraph of the permit expiry condition with the wording preferred by the Tribunal.
2. I note that the Applicant requested removing the proposed orchard from the Wastewater Treatment, Stormwater Management & Revegetation Layout Plan referred to in Condition 19 however, I find this is not necessary. I consider that a Land Management Plan with or without the orchard would be 'generally in accordance' with that Plan.

1. For the reasons outlined above, the decision of the Responsible Authority is set aside. A permit will issue subject to the conditions in Appendix A.

Crown Allotment K, Corner of Salisbury Road and Kyneton-Springhill Road

• Use of the land for a dwelling;
• Construction of a dwelling and construction and carrying out of works.

1. Before the development commences, three copies of amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of this permit. The plans must be generally in accordance with the plans submitted with the application but modified to show:

(b) Darker muted tone colours for dwelling and outbuilding;

(c) Plans in accordance with Conditions 17 and 19 of this permit.

All to the satisfaction of the Responsible Authority.

1. The use and development as shown on the endorsed plans must not be altered unless with the prior written consent of the Responsible Authority.
2. Unless with the prior written consent of the Responsible Authority, before the use commences, landscaping as shown on the endorsed plans must be planted, completed and thereafter maintained to the satisfaction of the Responsible Authority.
3. Before the development commences, the owner/s of the lot must enter into an agreement with the Responsible Authority in accordance with Section 173 of the Planning and Environment Act 1987.

(a) The Owner acknowledges and accepts that the possibility of nuisance from adjoining or nearby agricultural operations may occur. The possible off-site impacts include but are not limited to (dust, noise, odour, waste, vibration, soot, smoke or the presence of vermin), from animal husbandry, animal waste, spray drift, agricultural machinery use, pumps, trucks and associated hours of operation. In acknowledging the existence of the agricultural operations being conducted from adjoining or nearby land, the owner shall not make complaint against lawful agricultural activities on the adjoining or nearby land.

Application must be made to the Registrar of Titles to register the Section 173 Agreement on the title to the land under Section 181 of the same Act prior to the commencement of the development.

The owner/s must pay all costs (including Council's costs) associated with the preparation, execution, registration and (if later sought) cancellation of the Section 173 Agreement.

1. Prior to occupation of the dwelling, the following must be provided to the satisfaction of the responsible authority:

(a) Access to the dwelling must be provided via an all-weather road with dimensions adequate to accommodate emergency vehicles.

(b) The dwelling must be connected to a reticulated potable water supply or have an alternative potable water supply with adequate storage for domestic use as well as for fire-fighting purposes.

(c) The dwelling must be connected to a reticulated electricity supply or have an alternative energy source.

1. All external lighting must be designed, baffled and located so as to prevent adverse effect on adjoining land, to the satisfaction of the Responsible Authority.
2. The amenity of the locality must not be adversely affected by the activity on the site, the appearance of any buildings, works or materials, emissions from the premises or in any other way, to the satisfaction of the Responsible Authority.
3. Before works start, a vegetation protection fence must be erected around all vegetation to be retained within 15 metres of the works area. This fence must be erected at:

(a) A radius of 12 times the diameter of the tree trunk at a height of 1.4 metres to a maximum of 15 metres but no less than 2 metres from the base of the trunk of the tree; and

(b) Around the patch/es of native vegetation at a minimum distance of 2 metres from retained vegetation.

1. Unless with the prior written consent of the Responsible Authority, the following actions must not be undertaken in any vegetation protection fencing, to the satisfaction of the Responsible Authority:

(c) storage or dumping of any soils, materials, equipment, vehicles, machinery or waste products;

(d) construction of entry and exit pits for underground services; or

(e) any other actions or activities that may result in adverse impacts to retained native vegetation.

1. Prior to the commencement of use, potable water supply with a storage capacity of at least 10,000 litres must be provided to the dwelling for domestic use and firefighting purposes to the satisfaction of the Responsible Authority.
2. Stormwater runoff from all buildings, tanks and paved areas must be dissipated as normal unconcentrated overland flow clear of all buildings and property boundaries.
3. No polluted and/or sediment laden runoff is to be discharged directly or indirectly into drains or watercourses. Soil erosion control measures must be employed throughout the subdivision works in accordance with Construction Techniques for Sediment Pollution Control (EPA 1991) to the satisfaction of the Responsible Authority.

1. All wastewater from the dwelling must be treated and disposed of using operated and maintained in compliance with the relevant EPA Code of Practice.
2. Prior to the occupation, the dwelling shall be fitted with a package wastewater treatment plant or a system equivalent to the 20/30 standard for BOD and Suspended Solids. The septic tank system shall be of a design approved by Council's Environmental Health Officer and shall be operated, maintained and replaced where necessary to the satisfaction of Council's Environmental Health Officer and such that all effluent is disposed of within the boundaries of the allotment.

A separate permit must be obtained from Council's Environmental Health Department prior to its installation.

1. The wastewater disposal area must be kept free of stock, horses, buildings, driveways and service trenching and must be planted with appropriate vegetation to maximise its performance. Stormwater must be diverted away.

1. Prior to the commencement of the construction of buildings or other works, the Land Capability Assessment, prepared by Edwards Environmental Pty Ltd, and dated July 2018, must be endorsed under the permit.
2. The disposal area, and any recommendations for fencing or the prevention of trafficable access to the disposal area, which are set out in the Land Capability Assessment, must be shown on the site plans that form part of the permit.
3. A service and maintenance contract for the wastewater system and disposal area must be in place and the wastewater treatment system and disposal area must be installed, and, at all times, must be operated and managed, in accordance with the endorsed Land Capability Assessment and the council-issued septic tank permit.
4. Prior to the commencement of buildings and works, a revised Land Management Plan must be submitted to the Responsible Authority, generally in accordance with the Wastewater Treatment, Stormwater Management & Revegetation Layout Plan, prepared by Brad Hooper architect, and dated 8 August 2019, but amended to include:

(a) A schedule of landscaping actions to be undertaken with clear locations of works areas identified on endorsed site plans.

(b) A planting schedule of all proposed trees, shrubs and ground covers of the appropriate Ecological Vegetation Class (EVC) and timeline for the staged completion and maintenance of environmental works within 5 years of the development starting.

The amended report must be to the satisfaction of Coliban Water and the Responsible Authority and when approved will be endorsed under the permit.

1. Prior to the development commencing, the owner shall enter into an agreement with the Responsible Authority and Coliban Water under Section 173 of the Planning and Environment Act requiring that:

(a) The environmental works as provided under the endorsed Land Management Plan are maintained to the satisfaction of the Responsible Authority and Coliban Water.

(b) A site inspection report providing evidence of the maintenance of environmental works as provided under the endorsed Land Management Plan is supplied to Coliban Water 5 years from the commencement of this agreement.

1. The agreement is to be prepared by the owner who shall be responsible for all costs and fees applicable for the preparation and the registration of the agreement on the title of the land.

1. All construction and ongoing activities must be in accordance with sediment control principles outlined in EPA Publication 275, Construction Techniques for Sediment Pollution Control (May 1991).
2. All wastewater requiring disposal to land must be treated to a standard of at least 20mg/L BOD and 30mg/L suspended solids using a package treatment plant or equivalent. The system must be an EPA approved system, installed, operated and maintained in accordance with the relevant EPA Code of Practice and Certificate of Conformity.
3. All wastewater must be applied to land via pressure-compensating sub-surface irrigation installed along the contour.
4. The wastewater management system must be appropriately designed to manage the potential volume of wastewater generated under full occupancy (6 occupants in three bedrooms), including an appropriately sized disposal area based on a full water balance specific to the proposal and subject land.
5. The wastewater disposal area must be located at a minimum setback distance of 40 metres from the nearest drainage line.
6. The wastewater disposal area must be kept free of stock, buildings, driveways and service trenching and must be planted with appropriate vegetation to maximise its performance. Stormwater must be diverted away.
7. Revegetation must be completed in accordance with the "Wastewater treatment, stormwater management & revegetation layout plan" dated August 2019. Stock must be prevented from having access to this area.

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

(a) The development is not commenced within 2 years of the date of this permit;

(b) The development is not completed within 4 years of the date of this permit;

(c) The use is not commenced within 2 years of the date of the permit.

In accordance with section 69 of the Planning and Environment Act 1987, an application may be submitted to the responsible authority for an extension of the period referred to in this condition.

[1] The submissions and evidence of the parties and any supporting exhibits given at the hearing have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.

[2] At clauses 14, 21.07, 21.09 and 35.07 of the Planning Scheme.

[3] The associated condition is that no more than 10 persons may be accommodated away from their normal place of residence; and at least 1 car parking space is provided for each 2 persons able to be accommodated away from their normal place of residence. Mr Smout's proposal meets these conditions.

[4] Yarra Ranges SC v Yoxon [2009] VCAT 642; Van Ryswyk v Hepburn SC [2018] VCAT 647; JE Blundell v Surf Coast SC [2007] VCAT] 774; Aldercock Investments Pty Ltd v Mornington Peninsula SC [2006] VCAT 1818; Hesseen v Yarra Ranges SC [2006] VCAT 2166; McAlister v Yarra Ranges SC [2012] VCAT 16; Theodoulou v Mornington Peninsula SC [2004] VCAT 975; Hoppach v Wangaratta RCC [2009] VCAT 2785; Rossi v South Gippsland SC [2019] VCAT 964; Stuckey v Yarra Ranges SC [2014] VCAT 295; CA Lewis v Hepburn SC [2008] VCAT 1360; Sytlianou v Colac Otway SC [2003] VCAT 1121; and Ross v Frankston CC [2019] VCAT 129.

[6] The Tribunal decisions in Grinstead-Jones v Latrobe CC [2020] VCAT 330 and Ghidinell v Mildura RCC [2019] VCAT 839 that allowed smaller lots in the Farming Zone to be used for dwellings indicate that policy plays this discretionary role.

[7] [2013] VCAT 1758

[8] [2018] VCAT 1313

[9] [2020] VCAT 71

[10] [2020] VCAT 720