3. Prior to a Statement of Compliance being issued, it must be demonstrated to the satisfaction of the Responsible Authority that effluent can be contained within the boundaries of each lot.

4. Prior to a Statement of Compliance being issued, a vehicle crossing shall be constructed for each lot, including any reserve, to the satisfaction of the Responsible Authority.

5. Stage 2 of this development shall not be certified until such time as the titles resulting from Stage 1 have issued.

Stage 3 of this development shall not be certified until such time as the titles resulting from Stage 2 have issued.

6. Prior to the issue of a Statement of Compliance, the Owner shall enter into and comply with an agreement with Melbourne Water Corporation, under Section 269A of the Melbourne and Metropolitan Board of Works Act 1958, for the provision of drainage works and the acceptance of surface and storm water from the subject land directly or indirectly into Melbourne Water's drainage system.

7. No polluted or sediment laden runoff is to be discharged directly or indirectly into Melbourne Water's drain or water courses.

8. Separate application direct to Melbourne Water must be made for any storm water connection to Melbourne Water's drains or watercourses.

9. Prior to Certification, the Plan of Subdivision must be referred to Melbourne Water, in accordance with Section 8 of the Subdivision Act 1988.

10. The plan of subdivision submitted for certification under the Subdivision Act 1988 shall be referred to EE in accordance with Section 8 of the Act.

(a) Enter into an agreement with Eastern Energy for the supply of electricity to lots on the plan of subdivision as required by EE. (Easements internal and external to the subdivision and provision of sites for substations may also be required).

If further information is required in relation to Melbourne Water's permit conditions shown above, please contact Kevin Pendlebury on telephone 9235 2523, quoting Melbourne Water's reference 27858.

Responsible Authority: Mr D Barnes, Town Planner of Hansen Partnership Pty Ltd.

Permit Applicant: Mr P Merrigan, Town Planner of

Application under S.77 of the Planning and Environment Act 1987 (PE Act)

for review of a decision to refuse to grant a permit.

1. By application dated 15 February 1999, permission was sought for "realignment/restructure of existing titles in accordance with attached plans". These plans show five lots which run between Steels Creek Road to the west, Williamson Road (unmade) to the north and Smedley Lane to the east. The lots are numbered A to E. However lot A, which has access off Steels Creek Road via an unmade Government Road, has already been subdivided from the balance of Lot B by the Council and contains existing bushland. The house site which is approximately 45 metres square, has been set aside for Lot A.

2. It is proposed then to consolidate Lots B, C, D and E into one lot for viticulture. Vines already exist over most of the entire site. 0.90 hectares is to be subdivided from Lot E around an existing house and shed (Lot 1) and provide two new Lots 2 and 3, each of 0.64 hectares, facing Smedley Lane and located at the south-east corner of the subject land.

3. Much of the locality is given over to viticulture. In the introduction to the Council policy for the area it is said:-

"The Yarra Valley provides one of the world's best environments for growing quality wine grapes, and since the late 1980s the area has seen enormous growth in vineyard and winery development. It is estimated that in 1998 there were some 114 vineyards and 50 wineries in the Yarra Valley region, and that the area under vines was approximately 2500 hectares.

The wine industry provides valuable employment in the region and is a significant tourist attraction - attracting some 600,000 visitors each year. Furthermore, the growth in the wine industry in the region is complemented by growth in other food based enterprises, such as gourmet food production. These industries are an important component of the economy of the region and their continuing growth and development is to be encouraged."

4. Mr Barnes argued that such an arrangement of consolidation and re-subdivision (above) was contrary to the provisions of Clause 11 of the Planning Scheme and therefore prohibited.

"Clause 11 of the Planning Scheme sets out the subdivision controls. The average lot size in the Rural Zone is 40ha with smaller lots allowed ranging between 30 and 70ha providing the average area of all lots in the subdivision is 40ha or greater. This Clause also states:

"A permit may be granted to create smaller lots if any of the following apply:

Provided that the purpose of the subdivision is to:

- Re-align the boundary between two lots, where no additional lots are created; and where the re-alignment does not increase the number of houses beyond that permitted prior to the subdivision.

- Where the size and configuration of new lots created does not detract from the potential for the land to be used consistent with the objectives of the zone within which the land is situated."

6. Mr Barnes considered that the proposal does not realign boundaries and could well increase the number of houses permitted prior to subdivision. On this latter point he said that Clause 8.1 of the existing scheme "prohibits development on land which does not proper and safe vehicle access to and within the land".

"Three of the existing lots in this proposal are landlocked and do not have access from a constructed, public road. Under these circumstances it is questionable whether Clause 8.1 is complied with."

8. Thus he submitted that the proposal "does not constitute a realignment of boundaries ...".

9. He also relied on an editorial note at 22 AATR 4 from which he said:-

"...it is clear that, depending on the wording of individual schemes, to validly constitute a boundary realignment the new subdivision must bear some resemblance to the original subdivision pattern."

10. Mr Barnes also quoted from the State Planning Policy Framework the basis of which he argued was to protect productive agricultural land. He believed that the subdivision would reduce the productive capability of the land and said:-

"It is submitted that the creation of three small lots in a farming area has the potential to result in conflicting expectations of the two land users. The continued farming of the vineyard will require practices which may not be acceptable to the amenity of the neighbouring residents. For example, Lots 1, 2 and 3 may abut a vineyard. Spraying of the vineyards could result in spraydrift onto the lots and any buildings on these properties infecting rainwater water storage, domestic gardens and enjoyment of outdoor spaces of residents. This is a poor arrangement of land uses, creating conflicting uses and potentially constraining the longevity of the area as a productive agricultural area."

11. Mr Barnes however conceded that the proposal would have discretion for approval or otherwise, under the exhibited Yarra Ranges Planning Scheme and commented:-

"The proposed VPPs would allow discretion for this application to be considered, although it also provides a rigorous policies basis against which it would need to be assessed. Clause 35.01-4 states:

"A permit may be granted to create smaller lots if any of the following apply:

The subdivision is the resubdivision of existing lots. The number of lots must not be increased and all lots must be at least 0.4ha."

Whilst the proposal would not be prohibited under the proposed planning scheme it would remain contrary to the purposes of the Rural Zone, which supports sustainable land use and encourage improvement of agricultural techniques and enterprises."

12. Mr Sheffield argued against the proposal on similar lines to the Responsible Authority. With regard to the two housing lots of 0.64 hectares to be created on Smedley Lane he said:-

"The visual environment would not be enhanced by this proposal on the slopes of Highbrow Hill. The concentration of houses, garages, water tanks, sheds, horse floats, caravans, trailers, boats and cars that could appear on the three small blocks within this proposal, could not be described as conforming to these two objectives of the Planning Scheme. It would look exactly like what it actually is; a housing development!".

13. In response, Mr Merrigan gave the following background to the proposal:-

"This appeal is lodged on behalf of Yarra Glen Vineyards, a division of International Vineyards Pty Ltd and associated with Andrew Garrett, against the refusal of the Shire of Yarra Ranges to issue a permit for the restructure of existing titles.

Our client is a long established vineyard operator, who has now established a large viticultural operation at Yarra Glen.

Prior to purchase of the subject land our client was aware that this land consisted of several parcels, all of which were capable of containing a detached dwelling. It was always the intention to restructure the existing parcels to provide for a consolidated viticultural area with the housing to be located to suit."

14. He said that if the proposal was contrary to the Planning Scheme, "the status of all similar developments improved by Council over many years appears to be rendered illegal".

15. Mr Merrigan then set out the following details of the proposal:-

"As previously stated the planning scheme provisions require a three stage development -

Stage One Create Lot 1 around existing improvements on Lot E, create Lot 1 and consolidate the balance of E with D.

Stage Two Create Lot 2 and consolidate the balance of (D & E) with C.

Stage Three Create Lot 3 and consolidate balance of (E, D & C) with B.

The end result is five lots being the bush lot, a consolidation of the viticultural development and three housing lots. There is no potential for any additional lots or houses in excess of what exists at the present time.

It is submitted that the re-structure results in a separation of existing uses, and in particular a consolidation of the commercial farming activities."

16. With regard to the provisions of the existing planning scheme he noted:-

"In this case no additional lots are created, there is no potential for additional houses, and the purpose is to consolidate the existing and proposed vineyard development. Council have previously supported an application on the same property to allow for the separation of existing bushland from the agricultural land and to provide a site for a house.

It is accepted that the provisions refer to two lots and it is for that reason that the plan referred to a three staged proposal. Prior to lodgement the issue of the need for a staged development was discussed with a senior Council Planner, and I was advised that a single application with staged development would be acceptable. The Council have previously adopted the same approach to similar multiple restructure titles."

17. With regard to the proposed VPP he said that the advice to Council "that this proposal is contrary to the VPPs is factually wrong".

"Within the Rural zone the proposed subdivisional provisions are included in Clause 35.01-4. In the relevant part it is stated -

"A permit may be granted to create smaller lots if any of the following apply:

* The subdivision is the re-subdivision of existing lots. The number of lots must not be increased and all lots must be at least 0.4 hectare".

* "The subdivision is to create a lot for an existing dwelling. Only one additional lot may be created in the subdivision and each lot must be at least 0.4 hectare."

The Schedule to Clause 53 is introduced into the proposed new Scheme to provide consistency with the requirements of the RSP. The exhibited copy, under Clause 6.0 Small Lot Excisions, eliminates the potential for any excision in the region.

As was pointed out, by Council's Strategic Planner, this exclusion applies only to any additional excision but not to re-subdivision of existing lots."

19. Mr Merrigan also said that the ground of refusal that the proposal was contrary to the Regional Strategy Plan is vague and gave the following comments:-

"This ground is vague and does not appear to be supported by objectives supporting the continuation of rural land uses primarily for farming purposes.

The sole purpose of the restructuring of the existing titles is to enable the consolidation of the viticulture activities with the relocation of housing entitlements. It is not economically viable to ignore the value of the potential for detached dwellings on each title.

There is no indication that detached houses should not be constructed on existing titles, and no known precedents where the erection of a detached dwelling has been refused because it will occupy rural land.

The Stage 1 development is necessary to separate an unwanted established home for the purpose of obtaining agricultural land at an affordable price. This appeal has delayed the development of this land and this is seen to be totally contrary to the applicable provisions of the RSP."

20. With regard to the objection by Mr Sheffield, Mr Merrigan pointed out that this objector lives about 1500 metres from the proposed house sites. Two of the proposed houses will be located at "a greater distance from his property than is possible now".

21. Reviewing the submissions presented in this appeal, I believe a permit should issue for the following reasons:-

1. As explained by Mr Merrigan, I do not believe that the proposal is prohibited by the Planning Scheme. It is clearly not contrary to the provisions of the VPPs which have now reached the stage where they should be accorded considerable weight.

2. The proposal results in two houses on Smedley Lane - hardly constituting "suburbia" as suggested by Mr Sheffield - and does not result in additional houses over the number which could be approved now.

3. It is not at all uncommon to see houses, even clusters of houses, set amongst the vines in a viticultural area. This is true not only of the subject municipality but also of the vine growing areas of northern Victoria as well as Europe. All seem to be able to live in harmony in actual fact which is contrary to Mr Barnes' assertions.

4. Consolidating the areas for viticulture appears to me to offer great economic benefits for the grower - and the Applicant is clearly well qualified in this regard - with housing then located so that good access is available.

5. The proposal clearly accords with the purpose of the Zone (see para 11) "which supports sustainable land use and encourage(s) improvement of agricultural techniques and enterprises."

6. I do not believe that the principle enunciated in AATR editorial note (above) has sufficient weight in the particular circumstances of this appeal to deny the grant of a permit.