The plans to be endorsed and which will then form part of the permit are the plans submitted with the application (identified as TP02 Part Site Plan Dwelling; TP03 Part Site Plan Shed; TP04 Dwelling Floor Plan; TP05 Dwelling North Elevation; Dwelling East Elevation; Dwelling West Elevation; Dwelling South Elevation; Shed West Elevation; Shed East Elevation; Shed Floor Plan; and Shed North/South Elevation, all Issue No. B, prepared by Thomas Anderson Design).

(b) Condition No. 7 is deleted and replaced with the following condition:

A water supply for fire fighting purposes, fitted with Country Fire Authority connections and fittings, must be provided on the land, to the satisfaction of the Responsible Authority.

(c) Condition No. 8 is deleted and replaced with the following condition:

Before the use starts, a Land Management Plan to the satisfaction of the Responsible Authority must be submitted to, and approved in writing by, the Responsible Authority. The Land Management Plan must address, but is not limited to:

(a) details of measures to continuously protect and enhance any indigenous native vegetation and fauna habitat on the land

(b) the construction of fencing or freestanding walls that have a rural character and allow for the free passage of native indigenous animals

(c) details of measures to ensure that livestock do not enter areas that support indigenous native vegetation.

The approved Land Management Plan must be implemented to the satisfaction of the Responsible Authority.

Application under Section 80 of the Planning and Environment Act 1987.

Environmental Significance Overlay - Schedule 1, Moorooduc Plain and Balcombe Valley (ESO1).

Cl. 31.02 & 35.04-1 (use of land in GWZ2 for a dwelling).

Cl. 35.04-5 (construction of a building and the construction or carrying out of works for a Section 2 use in GWZ2).

Cl. 42.01-2 (construction of a building and the construction or carrying out of works on land in ESO1).

Cl. 11, 12, 14, 16, 21, 22.03, 22.11, 35.04, 42.01, 57 and 65.

The review site is located on the south-western corner of Coolart Road and Eramosa Road West in Moorooduc. It is a regular-shaped landholding with an overall area of 66.43 hectares. The property is flat and supports several sheds. Five dams are situated on the land. To the north, east and south are rural allotments. To the east, land is zoned for residential purposes and contained within the Urban Growth Boundary.

Cleine v Mornington Peninsula SC [2012] VCAT 1851; Rose v Mornington Peninsula SC [2013] VCAT 38; Taras Nominees Pty Ltd v Mornington Peninsula SC [2012] VCAT 1889; O'Keefe v Mornington Peninsula SC [2012] VCAT 583

1. The Mornington Peninsula Shire Council has issued a planning permit for the development and use of a dwelling on the review site. The permit is subject to a number of conditions. The Applicant has made this Application to the Tribunal for a review of the following three conditions:
   1. Before the use and development starts, 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 the permit. The Plans must be drawn to scale with dimensions and three copies must be provided.

1. A revised Farm Management Plan generally in accordance with the plan submitted with the application, but modified to include:
   1. An assessment of the current stocking capacity of the land based upon the areas set aside for grazing purposes, as well as the targeted stocking capacity based on the intended pasture improvement program.
   2. Further details of the pasture improvement program and paddock rotation regime.
   3. A timeline which indicates when key elements of the FMP will be implemented.
   4. Details of the link between paddock No. 6 and the remainder of the paddocks.
   5. Fencing off of the existing stand of gum trees in paddock 4.
   6. The inclusion of Appendix 3 which was referenced in the FMP but not provided.
2. A Water Management Plan to include the following:
   1. Provision for water supply of at least 10,000 litres stored for fire fighting purposes, with such supply annotated on the plan to have CFA approved connections and fittings.

1. Prior to the initial occupation of the dwelling (or other such time as approved in writing by the Responsible Authority), the land owner/occupier must implement and maintain in perpetuity the endorsed Agricultural Land Management Plan as approved (or as varied by the written consent of the Responsible Authority. Any damaged or ineffective stock fencing must be replaced as soon as possible.
2. Prior to the occupation of the dwelling and the commencement of the dwelling use, the owner must enter into an Agreement with the Responsible Authority pursuant to Section 173 of the Planning and Environment Act 1987. The Agreement must be prepared and registered on the title to the land to the satisfaction of the Responsible Authority. The Agreement must require the owner or occupier to undertake the following to the satisfaction of the Responsible Authority:

1. Implement and maintain in perpetuity, the endorsed Agricultural Land Management Plan, or other approved plan to the satisfaction of the Responsible Authority. 2. Continuously protect and enhance the indigenous native vegetation and fauna habitat on the land.

1. Construct fencing or freestanding walls that have a rural character and allow for the free passage of native indigenous animals.

1. Not plant any new hedges (with existing hedges to be managed) to ensure scenic views across the site are not obscured. 2. Not construct any bund wall or similar earthworks or artificial barriers that obstruct view lines. 3. Livestock must not be permitted in conservation areas at any time. 4. The permit holder indicates that they are fully aware of the potential emissions (visual, noise and odour) associated with agricultural activities in the locality and proceed with the use and development of their dwelling in full knowledge that one of the objectives of the Green Wedge is to accommodate productive agricultural use and that this activity should be expected and that they are aware of their obligations in relation to proper land management. 5. All dogs and cats must be responsibly managed to prevent attacks on livestock and native fauna. 6. All costs associated with the drafting and registration of this Agreement on title, are to be borne by the permit holder. 7. The permit holder shall responsibly manage farming practices including spray drift so as not to impact on neighbouring properties farming practices. 8. This Agreement must be registered by the Applicant on title, prior to the commencement of the use of the dwelling, pursuant to Section 181 of the Planning and Environment Act 1987.

2 Having considered all submissions presented with regard to the applicable policies and provisions of the Mornington Peninsula Planning Scheme, I have decided to vary the Council's decision. My reasons follow.

1. The review site is presently used for agricultural purposes, specifically, the grazing of cattle. The Council accepts that the development and use of a dwelling on this land will assist in achieving sustainable land management, which is consistent with the purposes and decision guidelines of the Green Wedge Zone. As part of Council's consideration of the planning application it required the submission of a Farm Management Plan (FMP). The Officer report had the following to say in respect of the FMP:

The submission of a detailed Farm Management Plan indicates a commitment to the continued enhancement of the site to yield greater productivity within the proposed cattle grazing enterprise whilst also maintaining areas of existing vegetation via the exclusion of grazing from sensitive areas. Whilst cattle grazing has previously occurred on the land (without the support of on site management) it is submitted within the FMP that the presence of the dwelling will enable greater day to day management of the property resulting in sustainable farming outcomes whilst increasing cattle productivity. Cattle production is an activity which can be expected to be undertaken within the GWZ and is prevalent throughout the locality.

1. The report went on to state that the various land management strategies identified in the FMP will enhance not only the agricultural sustainability of the land but also the environmental integrity of the existing vegetation on site, and that the proposed dwelling use should be allowed to enable the initiatives to be implemented on an on-going basis.
2. In June 2011, the Council adopted an Interim Policy for rural dwellings in the Green Wedge Zone and Special Use Zone. That policy has not progressed to form part of the Planning Scheme. The Council advised that, although authorisation to prepare and exhibit an amendment to introduce the policy into the Planning Scheme was obtained from the Minister for Planning, that authorisation has lapsed. In adopting the policy, the Council mandated the inclusion of conditions addressing Farm Management Plans and Section 173 Agreements on permits that are issued for dwellings in these zones. The conditions under review are examples of such 'mandatory' conditions.
3. In respect of the weight to be given to the policy, I agree with the Tribunal's findings in the matter of Taras Nominees Pty Ltd v Mornington Peninsula SC [2012] VCAT 1889, where it said:

[32] As for the weight to give to the interim policy, I do not give it much status at all. I acknowledge that it has advanced beyond a Council resolution and that efforts are being made to begin its long journey into the planning scheme. However, it is yet to even be authorised and there can be no guarantee of this. In the event that it is authorised, then there is exhibition, submissions, (probably) a panel hearing and then ministerial consideration. It is well short of what I would describe as "seriously entertained".

1. In respect of the Council's position of mandating or prescribing the inclusion of specified conditions, I agree with the following comments of the Tribunal in the case of Cleine v Mornington Peninsula SC [2012] VCAT 1851:

[6] Whether a condition is appropriately imposed on a permit is a matter to be determined in each individual case, depending on the merits and circumstances of the application, and whether the condition is required to achieve a planning outcome. It is not appropriate to impose conditions because it is policy to do so, irrespective of the merits or circumstances of the application.

1. Turning now to the merits of the disputed conditions. The Applicant is concerned that the FMP will be a means by which the agricultural use of the land is regulated by the Council. This concern is compounded by the requirement to embody the requirements of the FMP into a Section 173 Agreement, which has significant implications for the ability to amend the FMP. The Applicant correctly pointed out that 'Agriculture' is a Section 1 use within the Green Wedge Zone, and is therefore not subject to planning approval. On this basis, the Applicant questioned why an owner of the land wishing the utilise it for an agricultural activity other than cattle grazing should have to seek the Council's permission to do so. The Applicant also referred to the large size of the overall land holding, arguing that it meant that there is less reason to require a FMP than would be the case with a smaller parcel, or one that was subject to topographical or other constraints.
2. As it transpired during the hearing, the Council is primarily concerned with 'land management' rather than 'farm management' although there is a nexus between the two. What the Council is seeking is some assurance that the land will be managed in a manner that gives effect to the purposes of the Green Wedge Zone. These include:

To encourage use and development that is consistent with sustainable land management practices.

To protect and enhance the biodiversity of the area.

1. I agree with the Applicant that there is insufficient justification for the requirement of a FMP in this instance. I have not been provided with any evidence to persuade me that the land cannot be sustainably utilised for productive agriculture in the absence of a FMP. Nor is there any evidence that the provision of a dwelling on the site without a FMP will represent an unacceptable planning outcome. As I understood the parties' submissions at the hearing, there is an acknowledgement that a requirement for some form of land management plan is appropriate in this instance, albeit it will address a relatively limited number of matters. These include restricting livestock access to any environmentally sensitive areas of the land, and protecting native vegetation and any fauna habitats that may exist.
2. The Council's requirement to have matters regulated by a Section 173 Agreement has been addressed in a number of Tribunal decisions[2]. In these cases, the Tribunal determined that such an agreement was not justified where the desired outcomes could be achieved by a permit condition. Again, I agree with the Tribunal's comments in Taras Nominees Pty Ltd:

[33] As for an agreement in preference to a condition, I agree with Mr Tweedie that a Section 173 Agreement is more of a "last resort" tool than it is a first strike weapon. It is for special purposes and specific outcomes when an ordinary condition might not be able to deliver the certainty that is required. It is best applied to a tailored outcome determined by the merits or nuances of a case. Often where there are financial obligations, or the staging of large developments over an extended period of time, legal agreements have been seen as the right mechanism to implement complex undertakings.

[34] Notably, according to the interim policy, the use of the legal agreement is going to be applied on a 'global' basis to almost every application in the Green Wedge Zone. I doubt that the intent of Section 173 was ever to apply legal agreements on such a scattergun basis. It does smack of a 'belts and braces' approach where the agreement is the insurance policy in the event of a permit condition not being able to be enforced. Doubtless there will be times when it is warranted, but I am of the view that to apply it as the default mechanism in almost every application in the GWZ runs the risk of its importance being devalued.

1. In that case, the Tribunal observed that those matters required to be included in the Agreement were able to be addressed in a management plan, and that the desired Agreement would not achieve anything which could not otherwise be achieved by appropriately worded permit conditions.
2. I adopt these findings of the Tribunal and consider that they apply to the circumstances of this Application. As I indicated earlier, I will include a requirement that a land management plan be prepared. This management plan would need to be submitted to, and approved by, the Council. Once approved, the management plan must then be implemented to the Council's satisfaction. I have not been provided with any evidence that the matters sought to be addressed in a land management plan cannot be adequately regulated by a permit condition. This conclusion is consistent with the findings of the Tribunal in the cases referred to.
3. The Applicant also contests the requirement for the provision of a water management plan which includes provision for water supply of at least 10,000 litres stored for fire fighting purposes, with such supply annotated on the plan to have CFA approved connections and fittings. The Council explained that the basis for this condition is the local policy at Clause 22.11, Mornington Peninsula Fire Protection Policy. Pursuant to Clause 22.11-3, for land use and development in rural areas, it is policy that an adequate supply of water with suitable flow rates and appropriate couplings for Country Fire Authority equipment should be readily available to landowners or emergency services.
4. A number of decision guidelines which must be considered, as appropriate, before deciding on an application, are detailed at Clause 22.11-3. Amongst these is an assessment plan which incorporates a detailed analysis of the fire risk factors affecting a site and the design response to these factors. There is no reference to any such assessment in either the Council's submission or in the officer's report. Indeed, the officer's report does not address Clause 22.11.
5. The land is not affected by a Bushfire Management Overlay, and I have no evidence before me that the land is otherwise prone to fire. Conversely, I have no evidence to confirm that the land is not subject to any fire risk. The Applicant submitted that the requirement or otherwise for a suitable water supply for fire fighting purposes is addressed at the Building Approval stage, but did not provide any evidence in support of this submission. The Council could not confirm whether the Applicant's submission is correct.
6. On the information available to me, it has not been possible to conclude that there is no justification for the disputed condition. In the circumstances, I propose to modify the condition to require the provision of a water supply for fire fighting to Council's satisfaction. I expect that this will include consideration of any requirement for the provision of water supply for fire fighting purposes arising from the Building Approvals process.
7. In any future planning applications, it would be helpful if the Council's officers assessed proposals against the policy at Clause 22.11 and provided justification for the inclusion or otherwise of conditions that address fire risk.

1. For these reasons, I have determined to vary the Council's decision.

[1] I have considered all submissions presented by the parties although I do not recite all of the contents in these reasons.

[2] Cleine v Mornington Peninsula SC [2012] VCAT 1851; Rose v Mornington Peninsula SC [2013] VCAT 38; Taras Nominees Pty Ltd v Mornington Peninsula SC [2012] VCAT 1889; O'Keefe v Mornington Peninsula SC [2012] VCAT 583