Victorian Civil and Administrative Tribunal|2005-12-15|Before: Mr P

The application does not comply with the policies and objectives of the State Planning Policy Framework and the Local Planning Policy Framework.

Notwithstanding the above, Council believes, that in identifying a Restructure Overlay that creates lots in a Rural Zone of less than 100 hectares, the permit applicant would have had an expectation that the lots were appropriate for Rural Residential purpose. The development of a dwelling on each of these lots is considered acceptable, based on principles of natural justice.

It is respectfully submitted that the Tribunal consider the evidence placed before it and make a decision accordingly.

17 Mr Glossop tabled a comprehensive submission on behalf of CHW. He contended that, were it not for the Restructure Overlay, an application to construct four rural residential style dwellings in the middle of high quality, broadacre farming land would be rejected out of hand. Mr Glossop pointed out that CHW had adopted a benchmark dwelling density of 1:40 hectares in drinking-water catchments, a benchmark supported in previous Tribunal decisions. If the four dwellings were permitted, a dwelling density of 1:26 (ha) would result, an outcome Mr Glossop described as "particularly incongruous".

18 In a far ranging submission, Mr Glossop pointed to the heavy public cost involved in treating water emanating from open catchments, emphasising the need to adopt a cautionary approach to the potential health hazards that may result if potable water became contaminated.

19 Mr Glossop tabled a report prepared by Ms E Hak, an Agricultural Consultant. By agreement, Ms Hak was not called to give evidence or to be cross-examined. Her opinion as to the high quality of the subject land was not contested by Mr Ludeman.

20 The objectors, each of whom operate farms on adjoining land, also made thorough submissions supported by pictorial evidence. Part of the submission advanced by Mr Frank Conroy was especially significant as it captures the ongoing dichotomy between full time farmers and rural residential dwellers:

The allocation of good farming land to subdivision on this basis would amount to poor planning foresight. This property is in a rural zone and should be looked at from that point of view. This proposed application is centred in the middle of a farming area.

We are third and fourth generation farmers who have lived and worked here on the same property adjacent to this application since 1854. Farming, especially sheep farming is a business which is easily upset by the intrusion of roaming dogs. Proof of this I will submit to you in the form of photos taken after just one night during lambing season (appendix A). The two owners responsible could not believe that their Rottweilers were capable of such damage and did not feel that it was necessary to restrain their pets. Good meaning neighbours that don't look after their animals are a grave concern to adjacent properties. Sheep that are infected with lice, footrot or intestinal parasites can be a source of financial ruin to use as we depend on the breeding of sheep for a substantial amount of our income.

Our farming enterprise also consists of producing certified seeds such as Italian ryegrass, potatoes, and buckwheat for the export market. The growing of certified seed requires a good deal of diligence as foreign matter can easily encroach into ones crop from adjoining lands including wind blown pollen and seeds you don't have much control of.

We have worked hard to maintain our farm as a viable unit to produce food for the country but what future do we have if good agricultural land is taken out of production by this particular application. Someone has to make a stand because once the precedent is set then when will it end and where will the line be drawn.

In this case the application has the potential to set in motion the widespread expectations of developers to make a quick dollar. It is purely and simply a money making exercise at the expense of adjacent landholders. It must be noted that the Moorabool Shire has set aside areas for small lot subdivision within its planning scheme.

21 Mr Stephen Conroy also identified areas of potential conflict:

There are no benefits in granting building permits on the proposed site. In doing so much pressure would be placed on surrounding landholders as we have experienced our share of difficulties dealing with people who don't understand that this is our living. Many are blissfully unaware of the issues we deal with on a daily basis and are too willing to complain when 'farming life' interrupts 'country life'. Noise issues have arise in the past with phone calls being made complaining of irrigation pumps which operate seasonally. I would suggest that noise levels on the proposed site would vary more during the summer when pumps nearby are operating. Les Bubb has a bore pump and dam motors which can operate for days on end when watering potatoes. We could envisage this creating some points of difference if there were four dwellings within earshot of his pumps. Graeme E. Hardings and Associates have made some fairly general, ill informed assumptions as to the type of farming activity that exists in the area. (ref pg 3 of 3. report 045-230/1). Paddocks are ploughed, sprayed, cultivated, watered etc. on a rotational basis. Because the surrounding paddocks are currently being grazed does not mean they were last year or will be next year and this is generally where problems arise. Small landholder's country lifestyle can be altered with the ploughing of a nearby paddock. These works can continue sporadically until the paddock is sown out to pasture in 2-3 years time. Dust, noise, smells, intensive grazing, chemical use, all have the potential to create conflict ... something we all prefer to avoid.

22 In presenting the applicant's case, Mr Ludeman tabled a number of reports including the following:

•

Land Capability Assessments (Provincial Geotechnical Pty Ltd) for all four allotments.

•

Noise Assessment Reports (Graeme E Harding & Associates Pty Ltd).

•

Valuation Report (Leader Property Practice).

23 The authors of these reports were not called to give evidence. However, it is noteworthy that Mr Glossop did not challenge the land capability assessments or the proposition that, individually, each allotment was capable of having its effluent treated and contained within the curtilage of the property.

24 Mr Ludeman submitted that the Restructure Plan superseded the fact that the proposed development failed to comply with the LPPF. Such principles as the need to discourage non-agricultural uses and development in rural zones, the rights of existing farmers to operate without residential constraints and the potential for future residents to be adversely affected by surrounding agricultural activities were, in Mr Ludeman's submission, irrelevant by virtue of the existence of the Restructure Overlay.

25 As to the dwelling density principle relied upon by CHW, Mr Ludeman emphasised that the suggested ratio was a guideline of a rudimentary nature and should not be applied to land within the Restructure Overlay. He pointed out that the current Code of Practice - Septic Tanks was a more recent and a more comprehensive mechanism, and CHW did not contest the land capability evidence submitted by the permit applicant. The Tribunal notes in passing that the buffer distances from watercourses substantially exceed the 100m minimum distance set by the EPA.

26 Mr Ludeman further submitted that the Tribunal had now established "a consistent line of authority" that, providing effluent could be satisfactorily treated and contained within a property situated in a Township zone, permission for a detached dwelling should not be refused. He relied on a number of recent Tribunal cases including Gleeson v Hepburn SC [2004] VCAT 2012 in this regard. We note however that the review sites in this case are not located in a Township zone.

27 All parties tabled and relied upon previous decisions of the Tribunal. It is not proposed to list these cases because, save for the matter of Park v Macedon Ranges SC [2005] VCAT 1306, none involved consideration of land covered by a Restructure Overlay. Insofar as the cases relate to general planning principles, we agree with the following propositions:

•

it is appropriate to apply a cautionary approach when considering development applications within proclaimed water catchments; and

•

great care must be taken when considering development of house lots in areas devoted to general farming.

28 Much of Mr Ludeman's case depended on the assertion that, given the lengthy history of the restructure process and the permit applicant's diligence in assembling the land in accordance with the restructure plan, then there was a reasonable expectation that a permit to develop a house on each of the restructured lots would follow.

29 We disagree with this proposition. Notwithstanding the 1994 Panel member's reference to a "building right", the subsequent amendment to the planning scheme provided for a discretion, and for that discretion to be exercised having regard to certain specified guidelines. Clearly, compliance with those guidelines can only be assessed at the time the applications have been lodged. That assessment, in our opinion, constitutes the extent of the applicant's "reasonable expectations".

30 It needs to be borne firmly in mind that the Restructure Overlay was introduced 11 years ago. The public interest requires that planning decisions are made in accordance with current planning principles and knowledge. If Mr Ludeman's assertions are correct, then the erection of dwellings in the restructure area could have been made "as of right" at the time the amended controls were introduced into the planning scheme.

31 We also disagree with the proposition that the Restructure Overlay "supersedes" or "overrides" all other relevant planning scheme provisions. The underlying zoning of the review site and all surrounding land is Rural. Again this zone has its own guidelines and, the integrity of rural land is critical to both the State and national economies. We do not believe that notions based on "expectations" can be elevated to the exclusion of all other considerations.

32 That is not to say that the history of these applications can be disregarded. On the contrary, the restructure process, the Overlay and the diligence of the permit applicant in pursing its agenda are all highly relevant considerations, involving notions of "fairness". In the end result, the weight that should be given to what is essentially a "private" v "public" dichotomy is necessarily subjective.

33 It is timely to repeat the provisions of Clause 31.01-2 of the planning scheme in relation to Section 2 uses which, we believe, reinforces our previous comments:-

Because a use is in Section 2 does not imply that a permit should or will be granted. The responsible authority must decide whether the proposal will produce acceptable outcomes in terms of the State Planning Policy Framework, the Local Planning Policy Framework, the purpose and decision guidelines of the zone and any of the other decision guidelines in Clause 65.

34 These applications raised two separate and distinct issues, first the question of the water catchment and second the protection of productive agricultural land.

35 We agree with Mr Ludeman that the density control upon which CHW relies is something of a blunt instrument, a guideline which is indicative rather than regulatory. We accept the land capability evidence provided by the permit applicant and the proposition that each lot individually can treat and contain its own effluent. We are however concerned as to the cumulative impact of four dwellings and the dramatic increase that would result (75%) in the density recommendations contained in the document "Water Catchment Protection Policy" (8 July 2003).

36 While we have some concern regarding the "density" question we would not, having regard to the history of this matter, be prepared to refuse these applications purely on the basis of the water quality issues.

37 We turn next to the decision of the Tribunal in Park v Macedon Ranges SC (supra) and Mr Ludeman's reliance on the findings of the Tribunal in that decision. There are three important reasons why that case must be distinguished from the present circumstances:

a

the Park proposal was for one dwelling, not four;

b

the land was not, as here, a "first intrusion" but rather, part of a residential estate that had been almost exclusively developed;

c

the agricultural quality of the land was "low".

38 It is noteworthy that issues such as rural fragmentation and the impact on nearby rural operations did not loom large in the Park decision.

39 It is common ground that the LPPF offered little or no support at all for this proposal. For example, at Clause 21.07, the following appears:

The future approach to managing change and growth in the Shire's urban areas and towns is supportive of the goals outlined in the Shire's Land Use and Strategic Vision document (1997). Implementation of this vision will mean limiting the ultimate size of settlements, providing a hard edge to urban development which will ensure that land use expectations in those areas are understood and realised, ensuring a clear separation between towns and farming activities, giving strong attention to environmental values and providing for high quality design.

It is essential that the long-term viability of the Shire's rural areas is not compromised. Urban development at the fringes of the townships needs to be controlled in order to avoid conversion to non-productive land use.

Fragmentation of rural land holdings has significantly undermined the productive value of some areas.

40 There are countless further references, notably "the need to avoid a cluster of dwellings that are not directly related to the agricultural use of land".

41 The purpose of the Rural Zone includes:

•

An integrated approach to land management.

•

Protection and creation of an effective rural infrastructure and land resources.

•

Improvement of existing agricultural techniques.

•

Protection and enhancement of the bio-diversity of the area.

•

Value adding at source.

•

Promotion of economic development compatible with rural activities.

•

Development of new sustainable rural enterprises.

•

To ensure that subdivision promoted effective land management practices and infrastructure provision.

42 We believe that the development of four dwellings here is not only likely to remove high quality land from agricultural production but will, in all probability, promote conflict and disbenefits for surrounding landholders who depend on those properties for their livelihood, and who are operating in accordance with the purposes of the zone. The present proposals seriously conflict with virtually all the stated purposes of the Rural Zone, and may well jeopardise the proper conduct of surrounding agricultural activities. The effect on surrounding land uses is an issue specifically called upon by the decision guidelines of the Restructure Overlay.

43 In all these circumstances the Tribunal is simply unable to come to the conclusion that the expectations of the permit applicant should be allowed to outweigh such fundamental planning principles. It follows therefore that it believes the applications should be refused in their present form.

44 We have reached the above conclusion with regret for we have a great deal of sympathy for the permit applicant. We accept that it has acted responsibly and properly. We are therefore prepared to delay the operation of this order for a period of 30 days to facilitate an amended proposal for one dwelling on the four lots. This, at least, would allow the applicant an opportunity to recoup (or partially recoup) some of the expenditure it has outlaid in this protracted process.

45 In adopting this approach, we continue to have some reservations (albeit diminished) about the compatibility of this outcome with the policy framework and purpose of the Rural Zone. However, given the circumstances we have described, on balance we think that the construction of one dwelling on land approaching an area of 10h.a. would be acceptable. In saying this we envisage some form of restriction over the remaining 3 lots either by requiring a s.173 agreement prohibiting the construction of dwellings or alternatively by requiring consolidation of the four lots into one.

46 Should the applicant wish to avail itself of this opportunity, it should advise the Registrar of the Planning and Environment List and all parties listed at the commencement of this decision of its intention to do so within 30 days of the date of this decision. In that event, the Tribunal will give further written directions as to the future disposition of the matter.

47 If a response is not received within the 30 day period the Tribunal will affirm its decision to refuse the applications.

W Properties Pty Ltd v Moorabool SC [2005] VCAT 2806 (15 December 2005)

W Properties Pty Ltd v Moorabool SC [2005] VCAT 2806

At a glance

Court

Decision date

Before

Source

Judgment (27 paragraphs)

Parties

Cases Cited (1)

W Properties Pty Ltd v Moorabool SC [2005] VCAT 2806 (15 December 2005)