Start v Pyrenees SC [2006] VCAT 2599

It is the order of the Tribunal that the decision of the Responsible Authority in permit application No 1150/06 is varied.

The Responsible Authority is directed to issue a Planning Permit based on the Notice of Decision dated 27th July 2006 but with the following changes:

1 In What Will The Permit Allow? the following expression is deleted:

'Eight Lot (Boundary re-alignment) as set-out on Plan of Subdivision No 544758C'

and replaced with the expression:

'Subdivision of land into eight lots generally as set out on the amended Plan of Development No PS544758C - dated 28/04/2006.'

2 Insert the following three new conditions and all remaining conditions renumbered accordingly:

1 Before the plan of subdivision is certified under the Subdivision Act 1988, 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 then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the amended Plan of Development No PS544758C - dated 28/042006 but modified to show:

a) Fully dimensioned building envelopes and effluent disposal areas (incorporating buffer zones) for any future dwellings likely to be constructed on each lot in the subdivision.

b) All bearings, distances, levels, lot numbers, lot sizes, reserves and easements.

c) Other information relevant to the development of the land such as dams, wells, filled land, land subject to erosion and land subject to inundation.

d) Easements in favour of relevant authorities to the satisfaction of the Responsible Authority.

2 Before the plan of subdivision is certified under the Subdivision Act 1988, an environmental management plan generally in accordance with the Environmental Management Plan prepared by Central Highlands Environmental Consultancy (dated February 2006) must be submitted to and approved by the Responsible Authority. When approved, the plan will be endorsed and will then form part of the permit. The Environmental Management Plan must be reviewed and submitted to the Responsible Authority for further approval annually. Development and works must at all times be conducted in accordance with the endorsed plan. The Environmental Management Plan must include:

a) Overall environmental objectives for the land and techniques for their achievement.

b) Procedures to ensure that no significant adverse environmental impacts occur as a result of the land use activities.

c) Staging of proposed works including time frames for carrying out each stage.

e) Identification of possible risks of operational failure and response measures to be implemented.

3 Before the plan of subdivision is certified under the Subdivision Act 1988 or as otherwise agreed in writing by the Responsible Authority, the owner of the land must enter into an agreement with the Responsible Authority pursuant to Section 173 of the Planning and Environment Act 1987 to the satisfaction of the Responsible Authority and such agreement must provide for:

a) Any dwelling or other buildings to be constructed on Lots 1 - 8 inclusive must be contained within the building envelopes and any effluent disposal must be contained within the effluent disposal envelopes;

b) No more than 1 dwelling is to be constructed on each of Lots 1 - 8 inclusive;

c) Ongoing implementation of the Environmental Management Plan (as may be amended from time to time) by all owners of all lots in the subdivision.

An 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 Planning and Environment Act 1987. The owner/operator under this permit must pay the reasonable costs of the preparation and execution and registration of the Section 173 agreement.

Mr Neil Haydon, Solicitor/Town Planner. The individual applicants for review were also in attendance.

Mr Andre Dalton, Town Planner and Mr Kevin Porter, Town Planner.

By letter the Authority advised that it would not be in attendance.

Mr Robert Grubb, Town Planner of Development Resolution Services Pty Ltd. The permit applicants and the land surveyor were also in attendance.

1 Jack and Lynne Start and other neighbours oppose Council's decision to approve a subdivision to create 8 lots located on the eastern side of the Ararat-St Arnaud Road at Crowlands. The original application included 8 crown allotments and proposed their re-subdivision into 11 lots. However two of the crown allotments have been deleted from the application and the number of new lots reduced to 8. The Notice of Decision is based on the creation of 8 lots from the 6 existing crown allotments. It incorrectly makes reference to 'boundary re-alignment' whereas it is an 8 lot subdivision (see paragraphs 18 and 19 for a discussion about this issue).

2 The applicants for review oppose the Notice of Decision on five grounds:

i

The subdivision is inconsistent with the State Planning Policy Framework and in particular Clause 17.05 - Agriculture.

ii

The subdivision is inconsistent with the objectives of the Local Planning Policy Framework and more particularly:

a. Clause 21.02-7 Rural Subdivision and Development;

b. Clause 21.02-9 Land Capability Assessment;

c. Clause 21.05-1.1 General Farming Areas; and

d. Clause 21.05-1.2 Environmentally Sensitive Areas.

iii

The subdivision is inconsistent with the objectives of the following Local Planning Policies:

a. Clause 22.02 Agricultural Policies; and

b. Clause 22.03 Environmental Policies.

iv

The subdivision is inconsistent with the objectives and decision guidelines of the Farming Zone and the Rural Conservation Zone.

v

The future use and development of the lots contemplated by the subdivision has no nexus with and is incompatible to the primary use of the land being agriculture. Moreover, the subdivision will prejudice legitimate adjoining and nearby farming operations.

3 The Notice of Decision was issued on 27th July 2006.

4 The property included in the amended application has a total area of 387 hectares and comprises 6 crown allotments varying in size from just under 2 hectares to 148 hectares. On four of the crown allotments a dwelling could be erected without a planning permit (CA 21, 22, 24 and 24A) while a planning permit would be required on the other two (CA 23 and 23A).

5 Most of the site and surrounding is zoned Farming, although a small section at the eastern end of the land is zoned Rural Conservation. No overlays apply[1]. A number of state and local planning policies were highlighted for my consideration.[2]

6 I inspected the site and locality prior to the hearing. Documents and photos submitted at the hearing have been retained on the Tribunal file.

7 I am under no illusions that this land, whether left as crown allotments or subdivided into 8 new lots, will be eventually used for rural lifestyle purposes and almost certainly a house will be constructed on each lot. Although neighbours are opposed to rural lifestyle development close to their farming properties that can occur now whether or not this permit is approved.

8 This therefore is a somewhat unusual case involving in effect the re-subdivision of 6 existing crown allotments into 8 new lots. At present houses can be built on 4 of the lots without the need for a planning permit, and on one of the others it is possible that Council would grant a permit for a house even though it only has an area of 8 hectares. Only one lot, of less than 2 hectares in area, is of such a small size and odd shape that a permit would almost certainly not be granted.

9 The reality then is that if I refuse this application, up to 4 houses could be constructed without any input by Council or neighbours and without any of the environmental and other benefits flowing from the permit conditions contained in the now amended permit. A permit for a dwelling may be granted for one of the other lots although in that case, permit conditions could be included requiring environmental and other improvements to the land.

10 Placed in that context, the key issue is whether it is reasonable to allow an increase in the number of lots from 6 to 8 and an increase in the realistic number of houses from 5 to 8. (I note that the two crown allotments now removed from this application (CA 8 and 9) have a combined area of 87 hectares and with a simple boundary realignment could each be made over 40 hectares in area, thus avoiding the need for a planning permit for a house on each lot). In simple mathematical terms, 7 houses would be practically possible on all of the land included in the original application as against a combined total of 10 if this eight lot subdivision is approved and combined with the two lots subject to the simple boundary realignment.

11 I note that the zone minimum for subdivision in the Farming Zone is 40 hectares and that if this were one large lot it would be possible to subdivide it into 9 lots, rather than the 8 proposed in this amended application. While I accept that subdivision of land to create lots at or above the zone minimum is not automatic, there is at least a good chance that Council would not refuse such an application.

12 Planning policy does not support the fragmentation of high quality agricultural land or the use of existing small lots for non agricultural purposes. Although Mr Haydon cited a number of cases where the Tribunal had opposed the consolidation of small lots to create new lots for housing purposes, a key difference is that in this case (unlike for example the case in Moorabool Shire) all the new lots exceed the zone minimum. In other words the re-subdivision of existing crown allotments is not seeking to increase the number of lots over and above the number that would be possible with a straight subdivision of lots meeting the zone minimum. I concede that this is a simplistic analysis since a subdivision containing lots meeting the zone minimum must still be assessed having regard to the decision guidelines contained in the two zones and that after such an assessment a subdivision may not be approved. I also note that the small section of land in the Rural Conservation Zone may complicate the lot configuration and even the number of lots that could be created.

13 Mr Haydon's submission included his assessment of the current 8 lot proposal against each of the decision guidelines grouped under the five 'issues' included in Clause 35.07-6 - general, agricultural, dwelling, environmental and design and siting. I note that these are not mandatory requirements but are matters that must be considered, as appropriate, by the Responsible Authority (and the Tribunal on review). In making his assessment Mr Haydon has given a negative outcome against each of the individual criteria. I don't agree with his assessment. Even if this were a straight forward 8-lot subdivision of one large existing lot I would expect it to have some positive outcomes. Indeed after having viewed the site and seen photos, I have no doubt that there is considerable potential for greatly improved environmental outcomes for this land through the imposition of conditions requiring implementation of an environmental management plan and the designation of building and effluent disposal envelopes.

14 In this case the assessment also has to be balanced against the fact that 4 houses can be built on this land without planning approval and that up to 6 houses could be built if permits were granted for houses on the two small lots. In other words, re-subdivision provides an opportunity to include permit conditions that deal with some of the matters listed in the decision guidelines. Of these the most significant are the environmental management outcomes, but as foreshadowed at the hearing, I consider that incorporating building and effluent disposal envelopes will result in a positive outcome for the design and siting of buildings - something not possible at present with the four houses that could be constructed without planning approval.

15 One of the key benefits from this approval is the ability to significantly enhance the environmental condition of this seriously degraded land by requiring preparation and implementation of an Environmental Management Plan (EMP). Unfortunately the Notice of Decision does not include a condition requiring implementation of the EMP although during the hearing the Council made it clear that the Notice of Decision should be amended to include reference to an EMP. Mr Grubb indicated his clients did not oppose such a condition. I consider that it is absolutely critical that the EMP be referenced in the permit. Without such a condition I would be much less inclined to affirm Council's decision since there would be no compunction for environmental or land management improvements to flow from this new subdivision.

16 In considering how to implement the EMP, it also became apparent to me that the location for any future buildings and effluent disposal areas would be critical to the whether EMP can be implemented successful and whether the environmental outcomes set out as management aims (page 2 of the EMP) can be achieved. It is quite common to require plans of subdivision to include building and effluent disposal envelopes. Given the severe erosion over much of this land, it is crucial that the location of buildings and effluent disposal areas be determined now, since planning approval for dwellings will not be required in the future once this subdivision is approved.

17 Although it has no bearing on the final outcome, Council's categorisation of this application as a boundary re-alignment is misleading and not correct having regard to the provisions of Clause 35.07-3 which makes no reference to boundary realignments but simply to different forms of subdivision, including re-subdivision of smaller lots where the number of lots is not increased. Clause 62.04 deals with subdivisions not requiring a permit including a subdivision which realigns the common boundary between two lots.

18 In practical terms this application (as amended) is for the subdivision of 6 crown allotments into 8 brand new lots. Few of the lot boundaries bear any locational resemblance to existing boundaries and the subdivision results in a completely new configuration of lots and lot sizes. This can be contrasted to the two crown allotments now removed from the application (CAs 8 and 9) where, as I pointed out at the hearing, a simple realignment of the one common boundary between the two lots could take place without the need for a planning permit in accordance with Clause 62.04. The two reshaped lots would then both be above the zone minimum and hence houses could be built on each without the need for planning permit.

19 Mr Haydon made reference to the different zoning on the opposite side of the Ararat-St Arnaud Road which is located in the Northern Grampians Shire and the inconsistency in minimum lot sizes from one side of the road to the other. While I accept there may be differences in planning controls, I am required to make my decision on the planning provisions as they exist and it is not my task to speculate about whether the provisions are appropriate and whether or not the 'right' zone has been applied.

20 Mr Haydon also made reference to the proposal for a wind energy facility and provided a copy of a newsletter titled 'Crowlands Wind Energy Proposal'. While I accept that Pacific Hydro are serious about investigating the suitability of the area for a wind farm, the newsletter makes it clear that the investigation is at an early stage and that a planning permit application has not yet been submitted. The plan attached to the newsletter suggests that two generators may be located near the extreme eastern boundary of proposed Lot 7, with another two further east but still relatively close to the Lot 7 boundary. In my view this proposal is still at a very embryonic stage and a lot of work is required before it is considered and possibly approved by the State Government. As with other similar proposals, the proximity of dwellings will form part of that consideration.

21 I have supported the re-subdivision of this land into 8 lots because approval allows for the imposition of permit conditions which will result in vastly better environmental outcomes for the land, with flow on benefits for nearby land and downstream waterways.

22 Having regard to all the above, I will therefore vary Council's decision and direct that a permit issue subject to the conditions set out in the Notice of Decision to Grant a Permit dated 27th July 2006, but with additional conditions to improve environmental outcomes for this severely degraded land.

[1] Clauses 35.06-3 and 35.07-3 require a permit for subdivision of land.

[2] Other relevant Planning Scheme provisions include Clauses 11, 14, 15.01, 17.05, 19.01, 21 (various), 22.01, 22.02, 22.03, 22.06 and 65.