In permit application no. 2003-413, the decision of the Responsible Authority is set aside. A permit is granted and is directed to be issued for the land known as PC 1603446, Parish of Buninyong, Harbours Road, Yendon. The permit will allow the use and development of a dwelling in accordance with the endorsed plans and subject to the conditions contained in Appendix 1 to these reasons.

Mr R Eskdale, EDQ Group. He called Mr A Redman, engineer, to give evidence.

Mr J Glossop of Glossop Town Planning. He called Ms E Hak, agricultural consultant, to give evidence.

1. Mr Laurie Wiseman is a share farmer and farm contractor who operates in Yenon, Lal Lal and nearby districts. In 1999, he purchased a lot of 28.53 hectares south of the Yendon township. The lot had been consolidated from two titles and previously contained a dwelling. That dwelling was removed before the land was sold to Mr Wiseman but at the time of his purchase, a planning permit existed to use the land for a new dwelling.[1] Mr Wiseman did not act upon the permit that ultimately lapsed. He wishes to pursue the construction of a dwelling on the property and applied to the Moorabool Shire Council for a permit for this purpose. Mr Wiseman's intentions for the land and his farm business have evolved since the permit application was lodged several years ago. He initially sought to raise calves but is now developing a Hereford stud. He seeks a dwelling on his property to oversee that operation and provide a base for other aspects of his farming business.
2. The Council supports the permit application but was obliged to issue a Notice of Refusal because of an objection to the proposal by a referral authority, Central Highlands Water ["CHW"]. Mr Wiseman has sought a review of the Council's decision and thus the Tribunal must decide whether a permit should be granted. The grounds relied upon by CHW are:
   • the proposed use and development would result in an unacceptable risk to water quality;
   • a dwelling is not reasonably required for the intended agricultural use and therefore the proposal is contrary to the purpose of Farming Zone.
3. Having considered all submissions, and inspected the site and area[2], I will set aside the Council's decision. My reasons follow, noting I do not recite all material presented as all documentation is held on the Tribunal's file.

1. The review site is cleared except for a recently erected shed and some scattered trees. The shed is constructed close to where the dwelling is proposed and a similar location as the former dwelling. There is a group of trees marking the site of the previous dwelling close to Harbours Road. There are five dams on the land and several ephemeral watercourses. There is a rise through the property that runs east-west from which the land drains towards the various watercourses. The property that is presently used for grazing and cropping.
2. The lot pattern in the vicinity of the review site is varied with a number of smaller lots, several with dwellings, north extending to Ballantyne Road.
3. Compared with those smaller lot, larger lots are to the west, east and south, some with considerable vegetation. A number of these have a dwelling, including one of 22.54 hectares that was the subject of a permit issued by the Council in 2003.[3] CHW did not object to that permit but sought a number of conditions on the permit. On my visit, the property was being used for horse agistment and contained a yard for the breaking-in of horses.
4. The review site was the subject of Appeal No. 1992/37894. It was described in the Tribunal's reasons as comprising two crown allotments that had been consolidated into one title with one dwelling. An application had been made for two dwellings in a larger tenement. The Tribunal's reasons refer to the West Moorabool Water Board (who brought the appeal against the Shire's decision to allow both dwellings), agreeing to one dwelling but not two. The Tribunal set aside the Council's decision and no permit issued. [I understand that a house was later erected on another part of the tenement with a permit granted by the Shire.] On my reading, the Tribunal was concerned about a second dwelling on the review site in order to preserve water quality in the catchment and to prevent the fragmentation of valuable agricultural/rural land.

1. Approval is sought to use and construct a dwelling setback 25 metres from Harbours Road. House plans were not submitted with the application but a plan was tendered at the hearing by Mr Eskdale. This shows a single storey structure with two bedrooms and a study. A land capability assessment for wastewater disposal has been prepared and the location of an effluent envelope is shown on the plans. A farm management plan was prepared for the permit applicant and a revised plan was circulated prior to the hearing.

1. Under the Farming Zone of the Moorabool Planning Scheme a permit is required to use and develop a dwelling and also because the proposed dwelling would be setback less than 100 metres from the Road 1 Zone.[5] A permit is required for the development of a dwelling in the Environmental Significance Overlay (Schedule 1 Proclaimed Water Catchment).[6]

Is the dwelling acceptable in terms of the Farming Zone?

1. For CHW, Mr Glossop urged the Tribunal to take a strategic approach to the assessment of the permit application. He submitted the proposed dwelling is for a modest expansion of the beef cattle enterprise and does not justify the use and development of a dwelling. Mr Glossop observed that the Tribunal has yet to establish firm principles by which the test "reasonably required" can be judged. He noted the limited nature of some farm management plans that are being used by permit applicants to justify dwelling proposals on lots of less than 1:40ha. Mr Glossop noted there is nothing to require the continuation of rural activity once a dwelling has commenced, stating Section 173 agreements are problematic in relation to Section 1 uses. He submitted sites such as the review site would be attractive for rural residential use and there is no guarantee that the activities proposed by Mr Wiseman would continue if he sold the land.
2. Mr Glossop relied upon the evidence of Ms Hak who noted the small scale of the proposed and expanded agricultural enterprise. She referred to the labour requirements for the enterprise as part time, less than one labour unit, and, among a number of comments, said grazing could continue without a dwelling.
3. In response, Ms Wilson and Mr Eskdale submitted the proposal for a dwelling is acceptable. They submitted the proposal would allow for the more intensive use of the land for agriculture and the proposal for a dwelling would accord with the outcomes sought for the Farming Zone. Mr Eskdale referred to Mr Wiseman's circumstances, living with his parents locally and keen to set up his own operation on his own property, that would be assisted by the construction of a dwelling. He also referred to the size of other lots in the area and approvals granted by CHW, such as for the lot to the south at 22.54 hectares for horse training and agistment. The land's history was also said by Mr Eskdale to be relevant, although he did not consider the Tribunal's decision in 1992 as significant to the current case. Ms Wilson stated the Council is satisfied a dwelling is reasonably required to support and supervise the proposed expanded agricultural use.
4. The focus of the Farming Zone is to provide and protect land for agricultural purposes. The Zone seeks to limit dwelling development that might be more akin to rural living. The decision guidelines require consideration of whether a dwelling is "reasonably required for the operation of the agricultural activity conducted on the land".
5. Like Mr Glossop, I am not aware of Tribunal decisions that have sought to analyse at great length what "reasonably required for the operation of the agricultural activity" means. In my experience, a common understanding or approach was put by Ms Wilson in the Council's submission - a permit application must justify why a dwelling is needed to undertake or further develop a farming enterprise.
6. So, what can the decision guideline "reasonably required for the operation of the agricultural activity conducted on the land" be said to mean? My reading of various Tribunal decisions emphasise a relationship between a dwelling and bona fide agricultural activity conducted on the land itself. The lot size, physical characteristics of the land and its context, and nature of existing and proposed agricultural activity on-site are critical in considering this relationship. The decisions refer to a dwelling assisting in a meaningful and practical way - how will a dwelling assist an existing, developing or proposed agricultural activity? It is not, however, the case that a dwelling must be found to be essential to support the operation of agricultural activity. Rather, a dwelling must contribute to achieving the purposes of the Farming Zone and applicable policies.
7. There are many proceedings before the Tribunal where a proposal for a dwelling has been advanced in a rural setting. Many have failed because they are proposed on small lots where bona fide agricultural pursuits have not been sufficiently demonstrated; perhaps otherwise described as speculative, token, doubtful or too uncertain for various reasons. Often the proposals were determined to have attempted to create, or would have created, a rural living lot that is at odds with outcomes sought for farming areas. Proposals that have succeeded have often been decided on the specific circumstances related to the site context and the nature of the agricultural activity, guided by the policy direction of the Scheme. The land size may be larger and there has been sound evidence of agricultural activity being undertaken or proposed on the land with real prospects of a dwelling adding value to an agriculture or horticulture in some way.
8. In Hayes[7] there is reference to the phrase "reasonably required for the operation of the rural activity on the land". The land was zoned Rural Zone, predating the current Farming Zone. Mr Jewell was cited as saying:

The question of whether the dwelling is reasonably required for the operation of the rural activity on the land can be answered in two parts. Firstly, by considering what occurs on adjacent and nearby properties. I understand that there are many similarly sized properties within the locality which equate to the dwelling density proposed for the subject site. The land in the surrounding area is overwhelming rural. The distribution of dwellings does not appear to compromise this activity....

The second component of the 'reasonable' criteria is whether the proposal will in fact limit the rural use of the land. ....

I acknowledge that the development is not absolutely necessary for the land to be used for rural activities however I believe the planning scheme does not suggest such a narrow interpretation that this is a matter by which a proposal can fail in all cases. Rather I believe the zoning purpose and that of the relevant planning policies, suggest weight be given to several criteria the value of which will depend upon the circumstances of each case.

Relevant considerations might be the issue of whether the development will enhance or detract from the rural use of the land. The association between the development and land use and the practical realities of rural activities within a certain locality. ....

Ultimately the question posed by the control is: will the dwelling assist in productive farming activities not can the farming enterprise be undertaken without the dwelling?"

1. In my view, despite the translation of zones and introduction of the new Farming Zone, the points made have merit.
2. I agree with Mr Glossop that applicants may be wiser to the need to demonstrate the link between a dwelling and agricultural use and there can be no guarantee that agriculture will continue in perpetuity. However, some permit applications have the hallmarks of resulting in rural living or rural residential while others are clearly genuine in their genesis to add value to agricultural use and achieve the purposes of the Farming Zone and applicable policies.
3. A dwelling is plainly not essential for the review site to be used for grazing and stud cattle but I have been persuaded that a dwelling will assist the current and expanded agricultural use of the land being actively pursed by Mr Wiseman. I appreciate that Mr Wiseman is engaged in various activities off-site as a farm contractor. I also observe the projected returns from the business as outlined in the Farm Management Plan might not seem high and a 28.53 hectare lot for cattle would not be expected to be economically viable on its own. However, many farmers engage in activities to supplement their income. At present, this is the focus of Mr Wiseman's employment in addition to share farming but he seeks to establish more intensive activities on his own land in the form of stud Herefords. There are several stud cattle on the land at present in addition to grazing stock. Over nine years Mr Wiseman has significantly improved the property and there is no reason to think that good work would not continue in Mr Wiseman's hands.
4. As noted, Mr Glossop made submissions as to the ability to ensure an ongoing relationship between a dwelling and agricultural activity. It is true that circumstances might change and Mr Wiseman might move on. However, the size of the land, at 28.53 hectares, and nature of the surrounding area with a strong farming focus (outside the designated Rural Living area) has persuaded me that this is situation where a dwelling will assist to enhance agricultural production on the land and there is a real prospect of that continuing on an ongoing basis.
5. I am influenced also, to a degree, by the fact that the land has historically had a dwelling, in a similar location to that proposed here, and more recently a permit to use the land for a dwelling. This background is relevant under the policy at Clause 22.07 but not, however, determinative alone given the Scheme's position in relation to dwelling approvals.
6. More influential is the site's context. The lot is one of the larger present in the locale and the largest on the west side of Harbours Road. The proposal will not create a cluster of houses as discouraged by Clause 22.07. The dwelling is acceptable in terms of its design given the reasonable setback from Harbours Road and the fairly modest building size. It will not change the nature of the area to be more akin to rural living and Mr Wiseman accepts permit conditions preventing further subdivision and dwellings.
7. Ms Wilson observed that another division of the Tribunal had recently refused a permit for a dwelling on a property associated with calf rearing. In that case, Drew[8], the Tribunal considered a proposal for subdivision with one steeply sloping lot of 6.4 hectares upon which it was proposed to erect a dwelling and use the land for calf rearing. The Tribunal was not satisfied that the dwelling was reasonably required for the proposed use, contrasting with another decision by the same division involving foals on a site in Moorabool wherein it was satisfied that a permit application for both a dwelling and intensive animal husbandry was acceptable.[9] As I have said, each case must be decided in its own context and it is fraught to suggest "the numbers" (such as land area and stock) can be directly compared.
8. I have considered the relevance of the previous appeal relating to this land some 16 years ago. The current circumstances can be distinguished from the proposal before the Tribunal. Put simply, that dealt with a tenement situation wherein a permit was sought for two houses and the review site already contained a house. The planning unit and planning control regime are different in the current case and the dwelling on the review site has been removed. I do not consider the proposal before me will result in the fragmentation of rural land as was a key concern of the Tribunal in the 1992 proceeding. Circumstances are such here that I am prepared to find the dwelling to be acceptable in terms of the purpose of the Farming Zone.

Would the proposal result in an unacceptable risk to water quality?

1. Mr Glossop explained CHW is concerned to protect public health and water quality. He said the Tribunal has recognised for many years there is a link between incremental residential development and increased risk of contamination to potable water supplies. He submitted the proposal is not acceptable given proximity to watercourses and the land's propensity to water logging. He submitted the existing density of dwellings is 1:15.7 hectares for land within a one kilometre radius. Another dwelling would, Mr Glossop said, further increase risk in a location where the density is already high, increasing the density to approximately 1:14.95 hectares. Taking land only within the Farming Zone, Mr Glossop said the density is approximately 1:27 hectares and would fall to around 1:24.5 hectares.[10]
2. Protecting Water Quality in the Moorabool Shire Water Catchment Protection Policy 8 July 2003 is adopted by four water authorities. It includes as policy that dwelling density should generally not exceed 1:40 hectares in the rural, rural living and environmental rural zones. Criteria to take into account if a higher dwelling density is sought are:
   • The proximity of the land to a water supply reservoir and/or a waterway.
   • The time taken for water from the site to travel to a water supply reservoir.
   • The quality of the soil.
   • The slope of the land.
   • The link between the proposal and the use of the land for a productive agricultural purpose.
   • The existing lot and dwelling pattern in the vicinity of the site.
   • Any site remediation and or improvement works that form part of the application.
   • The intensity or size of the development or use proposed and the amount of run-off that is likely to be generated.
3. There are policies relating to buildings and works and effluent disposal. In addition, general decision guidelines are contained in the policy.
4. The Interim guideline for planning permit applications in open, potable water supply catchment areas (August 2000) Department of Infrastructure has the same base density of 1:40 hectares as cited above in the policy for Moorabool Shire. Five guidelines are set out in the Interim guideline of which the first is central to this case. Guideline 1 states where a planning permit is required to use land for a dwelling the density of dwellings should be no greater than one dwelling per 40 hectares. The Interim guideline continues that this does not apply if:
   • a catchment management plan or similar project addressing land use planning issues has been prepared for the catchment, and the objectives, strategies and requirements of the plan or project have been included in the planning scheme; and
   • a land capability assessment for the on-site management of domestic wastewater has been completed which shows that a greater or lesser minimum subdivision area and density of development is appropriate.[11] [Tribunal emphasis added]
5. The Interim guideline states the land capability assessment "should be undertaken in accordance with the requirements of Appendix A to the Code of Practice - Septic Tanks, On-Site Domestic Wastewater Management, Environment Protection Authority, March 1996 to the satisfaction of the responsible authority".
6. Mr Glossop submitted the proposal does not comply with the Interim guideline. That is because there is no catchment management plan and the land capability assessment addresses only the site and not the wider issues of appropriate development density in the locality. I agree that there is no wider catchment strategy or analysis available in this case. However, the land capability assessment for the site indicates effluent can be contained on-site and buffer distances from watercourses in excess of 100 metres achieved other than one location, at 80 metres, where the effluent field is separated from a watercourse by a ridge.
7. Protection of water quality is clearly an important policy outcome evident in Clauses 15.01, 18.09, ESO1 and local policies. The review site is located within the Lal Lal catchment that services Ballarat and other townships. The land contains a number of drainage lines that ultimately feed into the Lal Lal reservoir. CHW's objection is one of principle with the important aim of protecting water quality. The existing dwelling density relating to the review site exceeds the 1:40 hectares guideline and is around 1:27 hectares when focussed on rural land (ie. excluding land zoned for rural living). CHW says further dwelling intensity is an unacceptable risk.
8. I have asked myself if it reasonable to reject a proposal that is otherwise acceptable when tested against the Scheme provisions and policies, involving a site that has been occupied by a dwelling and then received a permit for a new dwelling under what might said to be similar (albeit not identical) controls as exist today? My attention was drawn by Mr Glossop to the findings of another division of the Tribunal in Barton[12]. In that case, it was proposed to construct a second dwelling on a site having an area of 11.08 hectares. In discussing the Interim guideline, the Tribunal recorded[13]:

Mr Glossop further acknowledged that like most policies, whether they form part of the planning scheme or not, it can only be regarded as a guideline and it is appropriate that a degree of flexibility and discretion is exercised in the application of the policy.

1. I have the benefit of criteria recited in paragraph 25 to assist in a decision. Moreover, it is self-evident that discretion has been exercised by CHW in the past, such as in relation to permit application 2003-176 (even though I am unsure that the Moorabool policy was fully operative at that time).
2. I think similar factors apply here as have influenced CHW to not object to other permit applications. First, I have found the proposal is consistent with the outcomes sought by the Farming Zone. Second, the existing pattern of development is such that the review site, previously containing a dwelling and later granted a permit for a new dwelling, is the largest lot between Harbours Road and Triggs Road. Third, the proposed dwelling is relatively modest in size. Fourth, there is an ability to require planting to further assist in site remediation. Fifth, is the Applicant's voluntary agreement to no further subdivision or further dwelling by a section 173 agreement.
3. I am mindful that approval of the current application will reinforce a pattern of a lot density that is below the 1:40 hectares benchmark. Indeed, in Barton, the Tribunal found against the proposal for a second dwelling on a site because that would fail to contribute to the outcomes of the then Rural Zone and because of concerns about the density of dwellings already in the catchment area. The Tribunal said[14]:

I also agree with Mr Glossop's submission that it is difficult to measure exactly when the level of human activity and or development in a catchment area would result in an unacceptable risk to water quality and that a cautious approach as advocated by the August 2000 guideline ought to be adopted. In this context whilst Central Highland Water's policy for the calculation of development density in a catchment area may appear to be a relatively blunt tool, I think it is nevertheless consistent with the application of a cautious approach. In the circumstances of this case, the density of development which would result from the grant of a permit is so at odds with the policy that there is in my view very limited scope for exercising a discretion to grant a permit.

1. I agree that a precautionary approach is required but I am also persuaded in the specific circumstances of this case that it would be unreasonable to deny a permit given the site's size, context, history and the ability for the proposal to add value to the agricultural use of the land. Further remediation can assist to establish vegetated buffers to filter runoff and there will be no further subdivision or dwelling development based on Mr Wiseman's willingness to voluntarily enter into such an agreement. The situation is perhaps comparable with my decision in Daylesford Design Studio[15] where I allowed a dwelling on a 7.9 hectares lot that was within a nominated settlement but also in a potable water supply catchment. That is, while limits on additional dwellings in potable water supply catchments will be appropriate, there can be circumstances where a balanced assessment of all relevant considerations mean the factors in favour of the proposal outweigh those against. That is my conclusion here.
2. As I said in Daylesford Design Studio, further work is required by the water authorities beyond the Interim guideline:[16]

The Interim guidelines make clear an intent and expectation that more detailed work would occur -a "review of water catchment issues"[17]. On the information provided to me, that does not seem to have advanced very far given monitoring programs are only now occurring. It seems to me that places such as this catchment, where Scheme provisions give rise to different expectations when compared with the density limits preferred by the water authorities, should be a particular priority for further work in association with the relevant planning authority so that the future direction is clear and consistent.

1. The policy for this Shire adopted by four water authorities is a very positive step forward. That policy and the Interim guideline provide a benchmark but that benchmark cannot be applied blindly given site and catchment characteristics can vary considerably. For example, land within a Rural Living Zone has quite different density expectations by the Scheme controls than the Moorabool policy and Interim guideline acknowledge. It may be reasonable to have 1:40ha and other figures as trigger points linked to zoning and it would be beneficial to have that type of direction provided through Scheme provisions. The circumstances in this case demonstrate CHW has not opposed some applications that it felt would be unreasonable to do so.
2. By way of example, if lots in townships or rural living areas are locations where it may be reasonable to depart from 1:40ha, then the Environmental Significance Overlay could be amended to include specific criteria to assist applicants and decision-makers, such as appropriate minimum lot size, distance to drainage lines and watercourses to create buffers, slope and other relevant matters. This could be done on a catchment basis via the Overlays in the applicable Planning Schemes. It might work in the same way as the two schedules that have been developed to address the circumstances of Melbourne Airport in municipalities such as Moonee Valley, Hume and Brimbank. Needless to say that the number of cases coming before the Tribunal, and other matters processed by responsible authorities, means the preparation of an amendment(s) or some other action is a priority in my view.

1. For the above reasons, I will set aside the decision made by the Responsible Authority and direct that a permit issue subject to conditions.

The following conditions apply to the land known as PC 1603446, Parish of Buninyong, Harbours Road, Yendon for the use and development of a dwelling in accordance with the endorsed plans.

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. The plans must show:
   • (a) The site plan confirming the dwelling location including a setback from Harbours Road of 25 metres, and location of effluent fields.
   • (b) Detailed floor plans and elevations of the dwelling based on "The Hanwood" design unless an alternative is to the satisfaction of the responsible authority.
   • (c) The wastewater management and effluent disposal system setback in accordance with Condition 11.
   • (d) Details of planting and fencing to assist site remediation and provide vegetated buffers to the watercourse.
2. The use and development as shown on the endorsed plans must not be altered without the written consent of the responsible authority.
3. A septic tank application must be lodged prior to the commencement of any building works. This septic tank system must be capable of achieving a 20/30/10 standard of discharge.
4. Stormwater drainage from proposed buildings shall be directed to the legal point of discharge to the satisfaction of the responsible authority. A legal point of discharge permit must be obtained prior to development and use.
5. Sediment discharges must be restricted from any construction activities within the property in accordance with relevant Guidelines including Construction Techniques for Sediment Control (EPA 1991) and Environmental Guidelines for Major Construction Sites (EPA 1995).
6. The dwelling must be connected to a reticulated potable water supply or have an alternative potable water supply with adequate storage for domestic use as well as for fire fighting purposes to the satisfaction of the responsible authority.
7. The dwelling must be connected to a reticulated electricity supply or have an alternative energy source to the satisfaction of the responsible authority.
8. The dwelling must not have exterior cladding of reflective materials.
9. This permit will expire if one of the following circumstances applies:
   • (a) The development and use are not started within two years of the date of

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

The responsible authority may extend the periods referred to if a request is made in writing before the permit expires, or within three months afterwards.

1. The wastewater management system shall be an EPA approved Package (Aerated) Treatment type system.
2. The wastewater management system, including the effluent disposal field, shall be set back at least 100m from any downslope waterway.
3. Prior to a building permit being granted the applicants shall enter into an agreement pursuant to Section 173 of the Planning and Environment Act 1987 with Central Highlands Water (CHW) and Moorabool Shire Council. The agreement shall provide that: -
   • (a) The wastewater treatment facility and effluent disposal area for the dwelling shall be inspected annually by a qualified Environmental Health Officer, who shall provide a written report on their condition to both the Shire and to CHW.
   • (b) The owner shall maintain any wastewater management system in accordance with the EPA's Certificate of Approval for the installed wastewater management system and evidence of this fact shall be provided in the annual written report referred to in Clause (a) herein.
   • (c) The owner shall have any wastewater management system desludged at least once every three years and evidence of this fact shall be provided in the annual written report referred to in Clause (a) herein.
   • (d) The owner shall carry out such works as are considered necessary by the inspecting Environmental Health Officer to ensure the satisfactory operation of the wastewater management system.
   • (e) The owner shall meet the costs of the inspections, reports and works referred to in Clause (a), (b), (c) and (d) herein.
   • (f) The agreement will be recorded as a memorandum on the title of the property.
   • (g) No further subdivision of the land is to occur.
   • (h) No additional dwelling(s) can be constructed.
4. The Owner and the Shire agree to sign all necessary documents and do all necessary things to register a memorandum of this Agreement on the title of the subject land pursuant to Section 181 of the Planning and Environment Act 1987.
5. This agreement will bind the registered proprietors, transferees, assignees, administrators, successors in title, occupiers, executors and heirs of the land.
6. The Owner agrees to pay all costs of the Shire in relation to the stamping and registration of this Agreement pursuant to Condition 13.

[1] A063/97 issued by Council allowed the use of the land for a dwelling only with a building envelope. CHW did not object.

[2] I inspected the site and locality on 20 April 2008.

[3] Permit 2003-176 allows the development and use of a dwelling and horse training/agistment. CHW said, in part "Considering the existing development in the immediate area, the ability to contain wastewater onsite and that the proposal appears to be consistent with the objectives of the rural zone, it would seem unreasonable to object to the proposal in this case".

[4] Based on the site plan marked as Appendix A to Mr Eskdale's submission.

[5] Clause 35.07. The minimum lot size is 40 hectares for a dwelling without a permit based on the Zone's schedule. The decision guidelines in Clause 35.07 have been considered by the Tribunal. In addition, the Tribunal has considered applicable policies set out in the State and Local Planning Policy Frameworks including Clauses 11, 12, 15.01, 17.05, 18.09, 21, 22.07 (Houses and House Lot Excisions) and the decision guidelines at Clause 65.01.

[6] Clause 42.01. I was referred to a series of other policies and guidelines including the State Environment Protection Policy (Waters of Victoria), EPA Publication 891 Septic Tank Code of Practice, Environment Protection Authority, March 2003, Interim guideline for planning permit applications in open, potable water supply catchment areas (August 2000) Department of Infrastructure, and Protecting Water Quality in the Moorabool Shire Water Catchment Protection Policy 8 July 2003. These have all been considered by the Tribunal in reaching a decision on this Application.

[7] Hayes v South Gippsland SC [2002] VCAT 973.

[8] Drew v Baw Baw SC [2007] VCAT 2311

[9] Spencer v Moorabool SC [2007] VCAT 2279

[10] I have noted these figures but also observed on inspection one house that might be unoccupied.

[11] Refer Guideline 1 at page 2 of the guidelines.

[12] Barton v Moorabool Shire Council [2003] VCAT 673.

[13] Barton v Moorabool Shire Council [2003] VCAT 673 at paragraph 40.

[14] Barton v Moorabool Shire Council [2003] VCAT 673 at paragraph 44.

[15] Daylesford Design Studio v Hepburn SC (Red Dot) [2007] VCAT 2387.

[16] Daylesford Design Studio v Hepburn SC (Red Dot) [2007] VCAT 2387 at paragraph 24.