IS THE PROPOSAL AN ACCEPTABLE RESPONSE TO THE FARMINIG ZONE AND OTHER AGRICULTURAL POLICIES?

1. The site is in the Farming Zone (FZ) the purpose of which is:
   • To implement the Municipal Planning Strategy and the Planning Policy Framework.
   • To provide for the use of land for agriculture. To encourage the retention of productive agricultural land.
   • To ensure that non-agricultural uses, including dwellings, do not adversely affect the use of land for agriculture.
   • To encourage the retention of employment and population to support rural communities.
   • To encourage use and development of land based on comprehensive and sustainable land management practices and infrastructure provision.
   • To provide for the use and development of land for the specific purposes identified in a schedule to this zone.
2. As the site is less than 100 ha in size, a permit is required under the FZ to use and develop the site for a dwelling.
3. Decision guidelines of the FZ require consideration of a range of matters as appropriate, including the agricultural, environmental and siting and design issues. The FZ also includes following decision guidelines which specifically relate to dwelling proposals:
   • Whether the dwelling will result in the loss or fragmentation of productive agricultural land.
   • Whether the dwelling will be adversely affected by agricultural activities on adjacent and nearby land due to dust, noise, odour, use of chemicals and farm machinery, traffic and hours of operation.
   • Whether the dwelling will adversely affect the operation and expansion of adjoining and nearby agricultural uses.
   • The potential for the proposal to lead to a concentration or proliferation of dwellings in the area and the impact of this on the use of the land for agriculture.
4. There are also a range of State and local policies relevant to the proposal. These include clause 14.01-1S which has the objective of protecting the state's agricultural base by preserving productive farmland. This clause includes the following strategy specific to new housing development:

• 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. Similar policies are contained in local policies of the scheme including clauses 21.02 and 21.05-1 both of which also seek to protect productive agricultural land. Clause 21.05-1 contains the following objective and strategies relating to farm size and dwelling proposals on rural land:

Objective 3 To maintain farm size to allow for viable agriculture.

Strategy 3.1 Avoid fragmentation of land for non-agricultural purposes, including rural residential development.

Strategy 3.2 Avoid dwellings on undersized rural lots.

1. The site is just over two kilometres to the north-west of town boundary of Bannockburn. However, access by road from the outskirts of the Bannockburn township to the site is a longer distance of around 6 kilometres. Stephens Road is a rural road which turns into Riddles Road just north of the site.
2. The land in the vicinity of the site is generally used for agricultural purposes. The exception to this is a large area to the south of the site (the northern tip of which is visible in the below aerial image) which is more heavily vegetated and is utilised for water treatment by Barwon Water, a golf course and for a nature reserve.
3. Below is an aerial image of the site (shaded in blue) and the surrounds described above. The northern edge of Barwon Water Treatment Plant is just visible at the bottom of the aerial image.

1. The agricultural land in the area is an irregular mix of sizes. There are some large lots, particularly on the western side of Stephens Road. Some lots on the eastern side of Stephens Road in the vicinity of the site are larger and others are smaller than the site. Most lots along the eastern side of Stephens Road have their dwelling located in proximity to Stephens Road, with the area between the dwelling and Bruces Creek being used for agriculture.
2. Immediately adjoining the site:
   • To the north, is a 27.8 hectare property currently occupied by the applicant and used for horse keeping and training. It is also developed with a dwelling which takes access of Stephens Road.
   • To the south is a relatively narrow lot with a dwelling close to Stephens Road and the remainder of the lot used for agriculture.
   • To the east is Bruces Creek. Further to the east is the rear of rural properties abutting McPhillips Road.

1. The scheme makes it clear through the FZ and other policies that a key issue when assessing a proposed dwelling in an agricultural area such as this is the potential impact of that dwelling on the ongoing use of the particular site and surrounding land for agriculture. Such impacts can arise by the fragmentation of rural land, the loss of agricultural land to non-agricultural purposes and constraints imposed on agriculture in order to ensure acceptable amenity outcomes for future residents of the proposed dwelling.
2. To avoid such impacts, there is strong policy support in the scheme for dwellings on undersized lots to be avoided. While such policies are not a blanket prohibition, the proposal is clearly contrary to these policies and in my view, this suggests that its potential impact on agriculture must be carefully considered.
3. In this instance, I consider the proposal will impact on agricultural activities in the area by fragmenting productive agricultural land. It will do this by introducing a dwelling into an area which is generally devoted to agricultural purposes. While there are other dwellings associated with properties along Stephens Road, these dwellings are all located in much closer proximity to Stephens Road. The land between these dwellings and Bruces Creek is used for agriculture. The proposal is out of step with this land use pattern. It proposes a dwelling in the space that other lots in the area devote to agriculture. In doing so, it would fragment this agricultural area.
4. In addition, as dwelling will be a new sensitive use in an area otherwise utilised for agriculture, it will potentially constrain the operation and expansion of adjoining agricultural activities. This is particularly the case for the horse training activities carried out on the adjoining property to the immediate north of the dwelling. The dwelling is proposed to be set back 60 metres from the northern boundary of the site. There is a horse training track very close to this boundary. Use of this training track has the potential to cause amenity impacts on the future occupants of the dwelling, including by way of noise and dust. This may not occur in the short term, as the horse training track is managed by the applicant. However, it may in the future when the two parcels of land end up in separate occupation, particularly if the use of the track is also intensified.
5. In addition, the dwelling will constrain the expansion of some types of agricultural activities on adjoining land in its vicinity, by introducing a new planning permit trigger for them. For example, a planning permit is required for certain seasonal or supplementary feeding infrastructure associated with grazing animal production, where it is to be constructed within 100 metres of a dwelling not in the same ownership. The proposed dwelling is only setback 60 metres from the adjoining land to the north.
6. Council also says that the proposal will result in the loss of agricultural land as the proposed dwelling is not one which is subservient and complementary to the agricultural use of the site. Based on the information before me, I agree with Council. While I accept that the horse breeding and keeping activities which are also proposed to be carried out by the applicant on the site are agricultural activities, the information before me does not satisfy me that horse breeding and keeping will be the main use of the site or that the proposed number of horses will be able to be sustained on the site.
7. In my view, the farm management plan submitted with the permit application lacked sufficient information on the carrying capacity of the land and how the land could be sustainably managed to accommodate the proposed number of breeding horses plus foals on an ongoing basis. While the site is 10 hectares in size, the part proposed to be used for horse keeping is much smaller than this, with the remainder of the land being occupied by the battle-axe driveway, the proposed dwelling, existing vegetation, and the steep escarpment down to Bruces Creek. Of that part of the site shown on the plans to be available for 10 small horse paddocks, I note that one of those paddocks is largely occupied by native vegetation and another an existing dam. The recent fencing which has been installed on the site creates two paddocks with a much smaller total area than the 10 paddocks shown on the plans of the proposal.
8. I accept that the applicant may have extensive knowledge of horse keeping matters, however, he was not called to give evidence in the proceeding. Therefore, I do not consider deferral to his expertise to be a sufficient response to the questions I asked of the applicant's representative about the proposed agricultural use at the hearing.
9. While the applicant submitted that the proposed dwelling is necessary for the site to be utilised for agriculture, based on the material before me I am not satisfied that this is the case. Rather, on my site inspection I noted that the site was already being used for horse keeping, with a number of horses in the two recently created paddocks on the land. This has occurred without any dwelling being established on the site, presumably in connection with adjoining land holdings. There is nothing preventing the ongoing use of this lot in a similar way, indeed it is common for agricultural businesses to operate over a number of land titles of varying sizes.
10. The applicant also suggested that allowing a dwelling on the site would ensure that the site is better maintained, including by better control of weeds. While this may well arise in practice, I do not consider it to justify approving a dwelling in this instance, noting that there are already obligations on landowners to maintain their land.
11. The applicant also referred me to a decision of this Tribunal in which a dwelling was approved on a small rural lot in a different part of the Shire.[2] However, the factual situation in that case was significantly different to the one before me, including the nature of the agricultural use to be supported by the dwelling and the already fragmentated nature of the surrounding agricultural area in that case.
12. It follows from my above findings, that I have concluded that the proposal will fragment and result in the loss of agricultural land, as well as potentially adversely affecting the operation and expansion of adjoining agricultural activities. Accordingly, I find the proposal to be a poor response to policies of the scheme which seek to protect productive agricultural land and as a result, I have refused to grant a planning permit for it under the FZ.

SHOULD A PERMIT BE GRANTED FOR THE PROPOSAL UNDER THE ENVIRONMENTAL SIGNIFICANCE OVERLAY?

1. The site is also partly subject to the Environmental Significance Overlay, Schedule 2 (ESO2). A permit is required for the proposal under the ESO2. The ESO2 has a purpose which is focused on protecting water quality in watercourses and also protecting habitat along watercourses.
2. The dwelling is well setback from Bruces Creek. While it is unlikely to have a significant impact on Bruces Creek, I have been provided no information about the proposed septic system, its location or the soil characteristics. While I accept that the site will be large enough to accommodate wastewater associated with a dwelling, in the absence of any information about the detail of the proposed wastewater system I am unable to be satisfied that it will not cause any unacceptable impacts to Bruces Creek.
3. I also note that while vegetation removal is not proposed as part of this permit application, I share the Council's concerns about the quality of the plans of the proposal and the potential for existing vegetation to be destroyed as a result of its development.
4. The plans do not accurately depict the location of the existing native vegetation on the site, nor do they identify the structural root zone and tree protection zones of trees within proximity to the proposed dwelling. Rather, the dwelling is proposed at the edge of an area of native vegetation. While it is proposed in a clearing, it seemingly abuts what I noted on my site inspection are significantly sized native trees. Without more detailed plans which demonstrate the location of the dwelling sufficient clear of dwellings to ensure their ongoing viability, I am not satisfied that the objectives of the ESO2 relating to the protection of habitat will be met. Instead, I am concerned that native vegetation may be destroyed without the necessary planning permission having been obtained.
5. For the above reasons, I am not satisfied that a permit should be granted for the proposal under the ESO2.

1. For the reasons given above, the decision of the responsible authority is affirmed. No permit is granted.

[1] The submissions and evidence of the parties, any supporting exhibits given at the hearing, and the statements of grounds filed; 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] Parkin v Golden Plains SC [2016] VCAT 1391.