Mr Peter O'Farrell, Barrister. He called expert evidence from Mr Allan Wyatt, Landscape Architect of ERM Consultants.

Use and development of the site for a dwelling with associated works, vegetation removal and alteration of access to a road in a Road Zone Category 1. The land will be used for a Wagyu Beef farm in conjunction with the applicants existing cattle operations at Gippsland. Essentially, the site will be used to harvest and sell Wagyu embryo's. The applicant intends to have a maximum number of cattle on site of 15-20 heffers.

Application under Section 77 of the Planning and Environment Act 1987.

Green Wedge Zone, Environmental Significance Overlays (ESO12, ESO17, ESO28), Erosion Management Overlay (EMO1), Vegetation Protection Overlay (VPO2), Significant Landscape Overlay (SLO1, SLO2, SLO6)

Clause 35.04-5 building and works in association with a section 2 use

Clause 42.01-2 buildings and works in an Environmental Significance Overlay

Clause 42.03-2 buildings and works in a Significant Landscape Overlay

Clause 52.29 alter access to a Road Zone Category 1

Clauses 11.04-6, 11.05-3, 12.02-2, 14.01-1, 16.02-1, 21.02, 21.03, 21.04, 21.06, 21.09, 22.03, 22.11, 22.14, 35.04, 52.29, 57, and 65.

The review site is located on the southern side of Boneo Road, Flinders. The site is vacant and currently serves as grazing land for cattle.

The site is irregular in shape and includes quite a steep fall from the north at Boneo Road down to Stockmans Creek on its southern boundary. The site measures 9.8 hectares in area. The site contains established trees, notably, the 20 metre wide plantation of mature pine trees on the northern boundary of the site. The remainder of the site contains cleared paddocks. The site is undulating with a relatively flat area where the dwelling is proposed to be located.

The surrounding area is undulating with the slope falling from the road down towards the coast and Stockmans Creek. The area includes a mixture of cleared and uncleared land. Very few areas of remnant bushland remain. The local lots vary considerably in size. The area accommodates rural uses such as large farms and small 'hobby' farms. Farm buildings, including dwellings, outbuildings, sheds, and storage areas are dispersed throughout the area.

The Tribunal undertook an unaccompanied inspection of the subject site after the hearing and considered the site from various public vantage points.

GSA Bloodstock Pty Ltd v Mornington Peninsula SC [2010] VCAT 986

1. Stephen Craig Targett has applied to the Mornington Peninsula Shire Council for a permit to use and development the land at 1690 Boneo Road in Flinders for a dwelling with associated works, vegetation removal and access to a Road Zone.
2. Council has issued a Notice of Refusal to Grant the Permit. In essence, the decision was based on Council's view that there is no justification of the dwelling use, and concerns were held for the visibility of the dwelling within the landscape. The Applicant disagrees with the Council and argues that the proposed development is not too visually prominent and the use is appropriate for the site. The hearing of this appeal was heard before us on 1 April 2011, at which time we heard submissions from Mr O'Farrell and Mr Nichol. We also received expert landscape evidence from Mr Wyatt.
3. The key issues that we must determine are:
   1. Is the proposed use of the land supported by the policies of the Mornington Peninsula Planning Scheme?
   2. Are the impacts of the proposal on the landscape acceptable?

4. The Tribunal must decide whether a permit should be granted and, if so, what conditions should be applied. Having considered all submissions and evidence presented to us and with the benefit of an inspection, we have decided to set aside Council's decision and grant a permit. Our reasons follow.

1. The removal of vegetation is not opposed by Council.
2. The amended plans show the dwelling repositioned on the site and reduced in size in order to accommodate the fall of the land. The dwelling is now proposed to be setback more than 60 metres from Boneo Road.
3. The site is subject to Significant Landscape Overlay No 6 which refers to National Trust Classified landscapes. As noted by Mr Nichol, the National Trust classification combines the immediate visual values of the landscape with an assessment of cultural heritage significance. Development within these areas may substantially effect the perception of landscape quality unless it is carefully sited and designed.
4. Tellingly, the National Trust who had originally objected to the proposal, withdrew their objection subject to the Tribunal's acceptance of the amended plans which place the new dwelling lower and further away from Boneo Road.

Is the proposed use of the land supported by the policies of the Planning Scheme?

1. Clause 16.02-1 of the Mornington Peninsula Planning Scheme seeks to avoid inappropriate rural residential development. Where a new dwelling is proposed, there must be a demonstrated 'need' for the dwelling. This helps to discourage inappropriate residential development in rural zones and the resulting opportunity for incompatibility of uses.
2. Mr Nichol, for Council, argued that the use of the land for the dwelling use is not an appropriate application of the policy at Clause 16.02-1 and is not appropriate in the Green Wedge Zone. In its assessment of the application the Council reiterated that the 'use' aspect of a dwelling is a permit requirement. As such, appropriate assessment needs to be made against the bona fides and appropriateness of the proposed dwelling.
3. We are satisfied that the dwelling will be used in association with the proposed cattle breeding venture on the subject land. We are also persuaded that the proposed use will be 'hands on' and will require more intensive on site supervision of the proposed cattle and embryo harvesting activities, rather than detached management. We accept that whilst this will clearly be an extremely large dwelling, it will incorporate a 'cattle management and embryo testing' facility, and that in Victoria large dwellings (within reasonable limits) are a common feature of the rural landscape.
4. Given that it will be largely out of sight from Boneo Road and the site is a considerable distance from the coast, we are unconvinced that the proposed dwelling should be rejected simply due to its size. The applicant has advised that it is intended that several generations of this family will live in the one house. We rely on the high quality proposed landscaping works put forward by Mr Wyatt, which will provide an attractive landscape setting for the new dwelling when viewed from its front yard area. We have also ensured via a permit condition that a sympathetic choice of colours is made in terms of any view to the new building when looking across from the sea to the site.[1]

1. The use and development of the site for cattle breeding draws support from both state and local policies, which seek to strongly promote agriculture and rural production.
2. The policies at Clauses 11.05-3 and 14.01 seek to manage and protect productive farmland by balancing offsite impacts such as soil or water quality degradation against the benefits of the proposal.
3. Specifically Clause 14.01-2 encourages sustainable agricultural land use through the facilitation of:

"the establishment and expansion of cattle feedlots, piggeries, poultry farms and other intensive animal industries in a manner consistent with orderly and proper planning and protection of the environment."

1. It is important to note that the state and local policy impetus for agricultural productivity is reiterated within the purposes of the Green Wedge Zone, where these seek to protect the productivity and biodiversity of agricultural land. The proposed use of the land for the breeding and harvesting of high value cattle embryos is an appropriate use of farm land that balances the need for the continued agricultural use of land against offsite impacts.
2. We find the use to be acceptable in terms of the state and local policies of the Mornington Peninsula Planning Scheme and the Farming Zone.

Are the impacts of the proposal on the landscape acceptable?

1. We are of the opinion that the proposed development will not unreasonably impact on views of significance, and will not unreasonably impact the surrounding area in terms of visual bulk.
2. Minimal views will be afforded of the new dwelling from the public realm in Boneo Road, due to the relocation of the dwelling to a lower portion of the site and the intervening ridgeline. Hence there would be limited opportunity for public views to the dwelling. The Tribunal's site inspection confirms that the roof to the dwelling (or some of it) will probably be publicly visible, but in practice public visibility of the site is limited to a small portion of Boneo Road, considering the dense nature of the copse of pine trees along the northern, front boundary.
3. We acknowledge that approval of the proposal would change the outlook from the water in Westernport Bay directly to the south of the subject site. However, we consider these views to be appropriate and reasonable within the Green Wedge Zone context where farm houses, outbuilding and sheds are commonplace and these are quite long distance views. We are persuaded that the view of the dwelling will be read with the land rising behind it, and the dwelling effectively nestling in to the hillside from the seascape. See our comments above regarding 'materials' and the positive role played by Mr Wyatt's proposed landscaping response.
4. We are satisfied that the proposed dwelling, whilst quite large and imposing in and of itself, has been appropriately located so that it will not unduly present over the ridgeline and will not result in an unreasonable impediment to views of significance.
5. We do not think the landscape is of such significance so as to stymie any form of development whatsoever. Rather, a careful design response is needed and we are satisfied that the revised plans achieve this.

1. During the hearing Mr O'Farrell indicated that the permit applicant would be prepared to enter into a Section 173 agreement, to be covenanted onto the title which would require the indefinite active implementation of the Farm Management Plan recognising that the active farming of the subject land is critical to our support for the new dwelling. We are minded to include this type of condition, so as to ensure public confidence that both the farming and the dwelling will occur. This will further the objectives of the Green Wedge Zone, whilst allowing for the proponents to occupy the land on which they intend to farm.

1. The site currently supports minimal grazing and the proposed use and development seeks to provide an active farming facility that will have minimal impact on the amenity of surrounding properties or on the landscape values of the locality. State and local policy supports the thrust of the use and development, and the purposes of the Green Wedge Zone are met.
2. The decision of the responsible authority is set aside and a permit is issued. We note for the record that council did not take any issue with any 'erosion' or 'wildfire' aspects of the proposal and that VicRoads have consented to the altered road access arrangements subject to conditions. Where a permit is needed under the Vegetation Protection Overlay for very modest tree removal for the new driveway arrangement, this seems quite acceptable. We also agree with Mr O'Farrell that the same type of substantial design response has occurred here through the revised plans, as occurred in GSA Bloodstock Pty Ltd v Mornington Peninsula SC [2010] VCAT 986.

Use and development of a dwelling and associated works, removal of vegetation and the creation of new access to a Road Zone Category 1

1. Before the development starts, Amended Plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, these Plans will be endorsed and will then form part of the permit. Three copies of all Plans must be provided. The Plans must include:

(a) Provision of a Farm Management Plan prepared by a suitably qualified person. The plan must describe how the land will be farmed, and should include (but is not necessarily limited to) to following:

(i) Land management strategies, including an examination of soil type and fertility, pasture enhancement requirements, and weed control;

(iii) Details of water and feed supply to support proposed stock levels;

(iv) Proposed paddock layout and rotation regime;

(v) Method of delineation between agricultural and domestic land uses.

(b) A schedule of external materials and colours which must be non reflective and of colours that are complementary to the natural landscape.

(c) Elevations of the proposed wall and gate to the north of the vehicle forecourt area, and the proposed gate at the driveway entrance to the property.

(d) The proposed entry gate on the front boundary as shown on the site plan relocated to the southern side of the Pine Plantation, generally in accordance with the location shown on the Landscape Concept Plan prepared by ERM (Drawing No. LS1a).

(e) A Landscape Plan, generally in accordance with the Landscape Concept Plan prepared by ERM (Drawing No. LS1a), but modified to show:

(i) The location and species of all trees proposed for removal;

(ii) A schedule of all proposed trees, shrubs and ground cover, which will include the quantity, location and size at maturity of all plants, the botanical names of such plants and the location of all areas to be covered by grass, lawn or other surface material as specified.

(iii) Details of paving, retaining walls, fence design and other landscape works, including areas of cut and fill; and,

(iv) The use of predominantly native indigenous species that will provide a suitable landscape buffer to adjoining land and visually integrate the development with its surrounding environment.

1. The layout and use of the land, the size and type of the proposed buildings and works, including the materials of construction, on the Endorsed Plan must not be altered or modified without the consent of the Responsible Authority.

2. Prior to commencement of development or the issue of a statement of compliance, an Agreement under Section 173 of the Planning and Environment Act 1987 must be entered into between the land owner and the responsible authority that requires:
   • The farming initiatives as stated in the submitted Farm Management Plan required at Condition 1(a) of this permit must be demonstrably commenced prior to the initial occupation of the dwelling, and thereafter carried out on an on-going basis to the satisfaction of the Responsible Authority.
   • This permit will lapse if, for a period of greater than six months, the owner of the land can no longer demonstrably show that the land is being actively farmed pursuant to the Farm Management Plan.

The Section 173 Agreement must be registered on the title to the land prior to the occupation of the dwelling permitted by this permit. The owner of the land must pay all reasonable costs of the Responsible Authority in relation to the preparation and registration of the Section 173 Agreement, and is responsible for all statutory fees and charges.

The materials and colour of the exterior finish of the approved dwelling must be in accordance with the endorsed plans, to the satisfaction of the Responsible Authority.

Prior to initial occupation, access to the dwelling must be provided via an all-weather road with dimensions adequate to accommodate emergency vehicles.

Prior to initial occupation, the dwelling must be connected to a reticulated electricity supply or have an alternative energy source.

Before any works associated with the development starts, a site specific geotechnical hazard and risk assessment report must be prepared by a suitably qualified geotechnical engineer or engineering geologist with experience in landslide risk assessment, and a copy lodged with the Responsible Authority for endorsement.

The endorsed Geotechnical Investigation Report forms part of this permit and is only relevant for the development for which the report was undertaken. Any proposed amendment to the endorsed building footprint must be accompanied by a formal written report from a Geotechnical Engineer sufficient to address any alterations to the recommendations of the report as a result of the changes, to the satisfaction of the Responsible Authority.

All stormwater drainage or overflow must be directed to a legal point of discharge in accordance with the recommendations of the endorsed geotechnical and landslide risk assessment report and to the satisfaction of the Responsible Authority.

Prior to the commencement of any works for the development, a Form B 'Structural/Civil/Geotechnical Engineering Declaration' in accordance with the AGS 'Practice Note Guidelines for Landscape Risk Management 2007' must be completed by a Structural Engineer Registered as a Building Practitioner with the Building Practitioners Board Victoria and also a Specialist Geotechnical Engineer or a Specialist Engineering Geologist as defined in the AGS 'Practice Note Guidelines for Landscape Risk Management 2007', and a copy lodged with the Responsible Authority.

Prior to the occupation of the building, a Form G 'Final Geotechnical Certificate' in accordance with the AGS 'Practice Note Guidelines for Landscape Risk Management 2007' must be completed by a Specialist Geotechnical Engineer or Specialist Engineering Geologist as defined in the AGS 'Practice Note Guidelines for Landscape Risk Management 2007', and a copy lodged with the Responsible Authority.

1. All disturbed surfaces on the land, resulting from the development, must be revegetated and stabilised to the satisfaction of the Responsible Authority.

2. Prior to the initial occupation of the approved development (or other such time as approved in writing by the Responsible Authority), the landscaping works as shown on the endorsed plans, must be completed to the satisfaction of the Responsible Authority.

3. All planting referred to in Condition 13 above must be maintained in a healthy condition to the satisfaction of the Responsible Authority. Any dead or diseased trees or shrubs must be replaced as soon as possible.

4. All wastewater must be contained on site in accordance with Council's Wastewater Management Plan, to the satisfaction of the Responsible Authority.

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

• (a) The development has not commenced within two (2) years of the date of this permit.

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

• (c) The use has not commenced within four (4) years of the date of this permit.

• (d) Upon the cessation of the farming activity in accordance with condition 3 of this permit.

The Responsible Authority may extend the above period for Clauses (a), (b) and (c) above, if a request is made in writing, before the permit expires or within the following three months.

1. Prior to the occupation of the dwelling, a minimum 3.5 metre wide sealed vehicle access between the property boundary and the existing road pavement must be constructed, to the satisfaction of the Responsible Authority.

2. Car parking spaces must be designed to allow vehicles to drive forward when both entering and exiting the property, to the satisfaction of the Responsible Authority.

3. Existing vehicular crossovers/access points must be removed and the nature strip reinstated to the satisfaction of the Responsible Authority.

[1] It was common ground at the hearing that there will not be any available views of the new building from the nearest beach area, due to the cliffs along side this beach area.