MEDIUM NEUTRAL CITATION: [2003] VCAT 142

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1. The decisions of the Responsible Authority in relation to permit applications Nos. 82/2001-573 to 581 are affirmed.

2. Pursuant to the provisions of Section 85(1)(a) of the Planning and Environment Act 1987, it is directed that permits must not be granted.

1. This was an application under Section 77 of the Planning and Environment Act 1987 to review a decision by the Campaspe Shire Council to refuse to grant permits in Application Nos. 82/2001-573 to 581 for construction of a dwelling on each lot (9 in total) on land described as CA 21A, 22/37A, 35A, 36, 23, 34, 37, 38 and 39 Section A Parish of Moora, Walbran & Poulson Rds, Rushworth.

2. The subject applications for permit were received by the Responsible Authority on 8th February 2000. Following the giving of notice of the applications, 2 objections were received. The grounds for objection were summarised in the Council submission.

3. On 10th April 2002, Council issued 9 Refusals to Grant a Planning Permit on the following identical grounds:

1. The proposal is contrary to Clauses 16.03 and 17.05 of the State Planning Policy Framework.

2. The proposal is contrary to Clauses 21.03-1 and 21.03-2 of the Municipal Strategic Statement.

3. The proposal is contrary to 22.01 and 22.02 of the Local planning policies.

4. The proposal is contrary to the purpose and decision guidelines of the Rural Zone.

5. The proposal would create an undesirable precedent for similar applications within the Rural Zone.

4. The subject application for review was lodged on 6th June 2002 on the basis that:

1. Land opposite of similar sized lots has dwellings on it.

2. If land is not zoned appropriately for dwellings then a rezoning is sought.

5. By forwarding grounds for contesting the application for review Phillip Green became a party to the proceeding.

6. I have considered all the submissions, photos, plans and other material presented at the hearing. I have also independently inspected the land and surrounding area on two occasions.

7. I find the following description of the site and locality, taken from the submission by Campaspe Shire Council, to be an appropriate one and confirms my observations during a site visit:

The subject land is made up of 9 titles, ranging in size from 8 hectares to 60 hectares, the area of all lots is approximately 170 hectares. The land is ... bounded by McLeans Road, Poulson Road and Wallbran Road, Rushworth, all of which are gravel roads.

The subject land is presently vacant except for a farm shed and is not currently being used for any agricultural use. The land is generally cleared of native vegetation, although there are a number of stands of trees and was previously used for grazing and crop raising. There are some dams on the site, all of which appear to be dry. The property was a single farming enterprise prior to purchase by the permit applicant and has no water entitlement.

Land uses in the immediate area are dominated by a mix of residential, agricultural and crown land uses.

8. The proposal involves the use of land for 9 dwellings on separate lots. Development permits are not requested at present. The lots, areas and points of access are as follows:

* CA23 54.09 ha - access from Poulson and Mclean Roads

* CA35 8.089 ha - access from Walbran and Poulson Roads

9. As a result of a request for further information, the applicant submitted a report by Vic Environmental Services in relation to the suitability of the sites for the installation of on-site wastewater treatment and disposal systems. The report identified building envelopes for each lot and concluded that:

All allotments are suitable for the installation of an onsite effluent disposal treatment system to service a single residential dwelling.

10. The subject site is located in a Rural Zone of the Campaspe Planning Scheme. In accordance with the schedule to the Rural Zone a permit is required to use land for a dwelling where the land is 100 ha or less in area.

11. A Wildfire Management Overlay applies to the land. A permit is required to construct a building or construct or carry out works but in this case the permits are only being sought for use of the land - hence no permits are required at this time under this Overlay.

12. In addition, other Clauses of the Planning Scheme relevant to consideration of the Application include:

* State Planning Policy Framework - Clauses 15.01 (Protection of catchments, waterways and groundwater), 15.07 (Protection from wildfire), 16.03 (Rural living and rural residential development) and 17.05 (Agriculture).

* Clauses 21.03 (Strategic objectives), 21.04 (Agricultural structure plan), 22.01 (Agricultural) and 22.02 (Environmental).

* General provisions - Clause 65 (General Decision Guidelines)

13. The principal issues for consideration in respect of this application for review are as follows:

* Wildfire management including water supply and access

14. The policy emphasis in the State and Local Planning Policy Frameworks in relation to the use and development of small rural lots for residential/hobby farm purposes is to ensure that high quality agricultural land is not lost for productive purposes, to ensure that use and development of such lots for hobby farm type purposes does not create unacceptable off-site impacts for nearby productive land and farming operations including impacts from contaminated runoff or wastes, to avoid intensifying wild fire risk as a result of inappropriately located use and development, to recognise agriculture as being fundamental to the existing and future well being of the Shire, and to ensure use and development is ecologically sustainable.

15. Local planning policy provides more detail within this broader framework by including objectives in relation to Agriculture (21.03-1), Environment (21.03-2), an Agricultural Structure Plan (21.04), Agricultural Policy (22.01) and Environmental Policy (21.05).

16. The Agricultural Structure Plan identifies land for high quality agriculture, land for intensive animal industries and land for dryland agriculture. The land around Rushworth, including the nine lots in this application, is included in the Dryland area with a minimum lot size of 100ha. Strategic considerations include the continual structural adjustment in agriculture and notes that:

The process of farm consolidation is considered fundamental to the long term viability of the agricultural base of the Shire. Moreover, the fragmentation of existing farms should not be encouraged as it is inconsistent with the trend towards the consolidation of larger and viable agricultural parcels. Accordingly, Council will adopt the present regime of minimum lot sizes throughout the Shire to reinforce this objective. These existing minima are generally 40 ha for irrigated land and 100ha for dryland.

17. In relation to the Agricultural Policy at Clause 22.01, six strategies are identified of which those detailed under A2 are the most relevant including:

- Discouraging non-agricultural use and development in all rural areas

- Restructuring old and inappropriate subdivisions on rural land.

18. Mr Cockerall also made reference to Amendment C14, which has in recent months been adopted by Council and forwarded to the Minister for Planning for her consideration and approval. Amendment C14 revises the whole Local Planning Policy Framework and amongst other matters sought to include new agricultural objectives, strategies and policies (Small Lot Policy and Rural Dwelling Policy to replace the existing Agricultural Policy). In 1999 Council prepared and adopted an Interim Agricultural Policy to serve until such time as the Planning Scheme was amended. Although the Independent Panel broadly supported the changes being made by Council, Council decided after receipt of the Panel report to delete the two policies referred to above and to retain the existing Agriculture Policy. The two new policies would have provided a much more explicit policy basis for rejecting applications for houses on existing lots than does the existing agricultural policy at Clause 22.01. As a result of Council abandoning the two new policies, the existing Agricultural Policy at 22.01 and the Interim Agricultural Policy (not part of the Planning Scheme) are the two documents Council uses to assess applications in the Rural and Rural Living Zones.

19. Having regard to these various documents and the position which Council has most recently taken in this regard (to abandon the two policies which would have strengthened policy in relation to small lots and rural dwellings), I am of the opinion that Council has at best an ambiguous policy concerning the use of existing small lots and construction of dwellings in rural areas. However, the overall thrust of Council's existing policies in the Planning Scheme and in the interim agricultural policy (which in a modified form was part of C14) is to limit the construction of houses in rural areas and to focus small lot development into suitably zoned land. I consider that the proposal before me is quite contrary to this philosophy. I am of the opinion that individual lots should not be used for small lot or hobby farming on an ad hoc basis. Instead, if there is strategic justification for expansion of areas for rural living around Rushworth, then a rezoning of this land and similar land is the appropriate course of action. This approach was partly foreshadowed by the permit applicant in his second Ground of Review (if land is not zoned appropriately for dwellings then a rezoning is sought).

20. Having considered the State and Local policy frameworks and the specific planning scheme provisions, I am of the opinion that the proposal to use the land for nine dwellings is not consistent with planning policy. The sites have some characteristics that make them suitable for an intensification of use beyond its present use as poor quality grazing land. However, I am not convinced that allowing a house on each lot will automatically mean that the land is managed more sustainably than in the past. In relation to the report by Vic Environmental Services regarding use of the land for rural activities including horticultural activities, this assertion was not tested under cross examination and nor were specific instances given as to how this could be achieved. Given my inspection of the site and assessment of the productive capacity of the land, I find it scarcely credible that the land could be used for other than low intensity uses as horse agistment and grazing - and then only with considerable ongoing management in terms of supplementary feed and water.

Wildfire management including water supply and access

21. Although a permit is not required under the Wildfire Management Overlay for the use of the land (rather than development), Council notified the CFA of the applications. The CFA offered no objection to the proposed use of the lots but provided draft conditions in relation to vegetation management, water supply and vehicle access.

22. Land to the west of Rushworth (including the subject lots) is identified as an area where the intensity of wildfire is significant and likely to pose a threat to life and property. Although the lots are for the most part cleared grazing land, substantially vegetated public and private land abuts to the north and east (and to a lesser extent to the south). The conditions suggested by the CFA are designed to ensure that any future residential development takes place with minimal risk and includes requirements for vegetation management in an Inner and Outer Zone, standards for static water supplies and access requirements for emergency vehicles.

23. At the hearing a suggestion was made by Mr Cellante that he would be prepared to contribute (together with other landowners and Council) to sealing certain roads so as to reduce existing dust problems. Council offered to investigate costs for such work and this material was forwarded to parties after the hearing. While the suggestion to seal certain roads has merit if the land is developed for housing, as noted elsewhere I do not support the use of the land for nine houses for strategic planning reasons.

24. I accept that the land has been used for grazing purposes in the past and that at present it is not being used for productive agricultural purposes. I note that the land is not identified by the Council as being of high agricultural quality and that it is identified as being within the dryland agricultural area. However the land could continue to be operated as one larger agricultural holding as is other land to the south and west. I accept that there are many areas in the Shire where agricultural productivity is low and in many cases farm income has to be supplemented by off farm income (as in many parts of Australia). This low productivity does not justify converting the land for rural residential or hobby farm purposes, particularly given that the vast majority of the land is cleared grazing land and not remnant bushland.

25. My inspection confirmed the generally poor quality of the land and the existence of vegetation on some of the lots (particularly towards the north end of Walbran Road). I agree with Mr Cellante's submission that the use of the land for hobby farm purposes may mean that there is more chance of existing vegetation being retained and additional planting being undertaken, as compared to its continued use as marginal farmland where existing vegetation is less likely to be managed or preserved. I consider that the flora and fauna habitat on these sites is likely to improve but as noted elsewhere, I am rejecting the application for other reasons relating to planning policy.

26. In making my assessment of the proposal I have weighed up the various competing factors concerning the balance between protecting agricultural land and allowing for more effective use of land for hobby farm activities. I have found that the adverse impacts on the agricultural land outweigh the benefits to be gained from allowing a house on each of the nine lots. I find that providing for nine houses in this location is inconsistent with State and Local Planning Policy Frameworks and in particular is contrary to policy contained in Clause 22.01. If small lots in rural areas are to be used for housing purposes then the land should be assessed on a strategic basis. If warranted, appropriate zonings should then be put in place to recognise the outcomes of that strategic assessment. Such a course would avoid the type of ad hoc approach demonstrated by the nine applications in this case.

27. Accordingly, I will order that the decisions of the Responsible Authority be affirmed and that no permits issue.