VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P439/2023
Permit Application no. PLN/2022/410	
CATCHWORDS	
Section 77 Planning and Environment Act 1987 (Vic) – use and development of a dwelling – Farming Zone – lot less than 40ha – proposed Horse Husbandry	

APPLICANTs	Justin Binney and Hayley Binney	
responsible authority	Macedon Ranges Shire Council	
SUBJECT LAND	78 Mullalys Road
BOLINDA VIC 3432	
WHERE HELD	Melbourne	
BEFORE	Jeanette G Rickards, Senior Member	
HEARING TYPE	Hearing 	
DATE OF HEARING	8 September 2023	
DATE OF ORDER	27 October 2023	
CITATION	Binney v Macedon Ranges SC [2023] VCAT 1189 	

Order
1	The decision of the responsible authority is affirmed.
2	In permit application PLN/2022/410 no permit is granted.

Jeanette G Rickards, Senior Member			

Appearances
For applicants	Mr R Costa, Town Planner, Roy Costa Planning & Development	
For responsible authority 	Mr D Song, Town Planner, SongBowden Planning Pty Ltd	

Information
Description of proposal	Use and development of a dwelling.	
Nature of proceeding	Application under section 77 of the Planning and Environment Act 1987 (Vic) – to review the refusal to grant a permit. 	
Planning scheme	Macedon Ranges 	
Zone and overlays	Farming Zone 	
Permit requirements	Clause 35.07 - use of a dwelling on land less than 40ha in size.
Clause 35.07-1 – to construct a building, construct or carry out works.	
Relevant scheme policies and provisions	Clauses 02.03-4, 02.03-6, 11.03-3S, 13.02-1S, 14.01-1S, 14.01-1L, 14.01-2L, 16.01-3S, 16.01-3L, 27.07-1 and 65	
Land description	The subject site is located on the north side of Mullalys Road, approximately 320m south-east of its intersection with Kilmore Road. The site is irregular in shape and is 22.534ha in size. It currently contains a machinery shed. The building is located on clear ground, setback approximately 200m from Mullalys Road.
The site is undulating with the highest point at 384m and the lowest point at 361m. Bolinda Creek runs through the property in a north-south direction. The site is sparsely vegetated except for the banks along Bolinda Creek.
Access to the site is via an existing crossover from Mullalys Road. The land is currently used for grazing animal production. A water dam is also located to the northwest of the existing building.
Surrounding properties are generally of a rural nature and used for agriculture. Most of the properties contain dwellings with the nearest dwelling being approximately 390 metres to the south-east. Some of the allotments are vacant in terms of buildings and used for agricultural activities. Bolinda Creek continues to flow south of the subject site through nearby properties creating a valley within the landscape. Similar to the subject site, the surrounding area is undulating.	
Tribunal inspection	Subject site and surrounds 11 October 2023	

Reasons
1	This is an application for review of the decision of Macedon Ranges Shire Council (‘the Council’) on 10 February 2023 to refuse to grant a permit for the use and development of 78 Mullalys Road, Bolinda for a dwelling. 
2	The proposal is for the use and development of the land for a dwelling in association with an agricultural use being horse husbandry and cattle/sheep grazing. 
3	The subject land is irregular in shape and has a total area of 22.534ha. A large machinery shed is currently located on the site. Access to the land is via Mullalys Road. Bolinda Creek traverses the land. 
4	The Council’s grounds of refusal relate to the proposal being contrary to the provisions of the Farming Zone (‘FZ’) and clauses 14.01, 21.07-1, 21.09-2 and 51.07 relating to agriculture and rural residential development in the Macedon Ranges Planning Scheme (‘the planning scheme’).
5	The purposes of the FZ include: 
•	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.
6	Clause 35.07-6 provides decision guidelines which include:
Accommodation issues
•	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.
7	The planning scheme recognises the shire contains ‘productive, broad acre farming areas with high quality agricultural land and large properties’ and at clause 02.03-6 recognises that ‘ongoing demand for rural residential development can produce adverse effects and must be carefully managed’. 
8	Protection of the state’s agricultural base by preserving productive farmland is recognised at clause 14.01-1S where the following strategies provide:
•	Avoid permanent removal of productive agricultural land from the state’s agricultural base without consideration of the economic importance of the land for agricultural production and processing sectors.
•	Protect productive agricultural land from unplanned loss due to permanent changes in land use.
•	Limit new housing development in rural areas by:
-	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. 
9	Clause 14.01-1L relates to the protection of agricultural land in the Macedon Ranges and provides the following strategies:
•	Ensure use and development of agricultural land relates to the ongoing productive use of the land for agricultural purposes. 
•	Ensure development, including dwellings, relates to agricultural production and is consistent with the capability of the land. 
•	Discourage the fragmentation of agricultural land that would reduce farm sizes to a point where they are no longer productive. 
•	Ensure any use of the land for residential activity is secondary or ancillary to the primary agricultural use of the land. 
10	The Council submits the proposed development is unacceptable as it fails the purpose of the FZ to keep land in agricultural production and ‘to ensure that non-agricultural uses, including dwellings, do not adversely affect the use of land for agriculture’.  Council believes the intent of the proposal is to create a rural lifestyle lot or rural ‘getaway’. Council further considers the type of agriculture proposed (horse husbandry and cattle/sheep grazing) does not require a dwelling on the land.
11	The applicant submits horse husbandry is a genuine agricultural pursuit; and the unique locational and topographical characteristics of the land limit the available agricultural use of the land.
12	The applicant submits the dwelling on the land is to support the general keeping/spelling of approximately six brood mare horses with the potential for training/breeding programs to be introduced over time. 
13	It is intended to create eight main paddocks each with a horse shelter as well as feed/water storage and equipment. Given the considerable value of brood mares and the labour-intensive nature of Horse husbandry a high level of on-site security and supervision is said to be required. 
14	‘Horse husbandry’ is defined in clause 73.03 as:
Land used to keep, breed, board, or train horses.  
15	The applicant notes that whilst the size of the subject land does not allow for a dwelling as of right there are nearby lots of a similar size that already contain a dwelling with a mixture of lifestyle farming/hobby farms, commercial livestock farming (beef and sheep) and equine facilities/training nearby.
16	The applicant submits ‘if an agricultural pursuit is expressly contemplated under the planning scheme (as a recognised form of Agriculture) and is capable of operating as a self-sustaining venture then it ought to be regarded as a genuine, sustainable and productive agricultural pursuit/use’.
17	In relation to the topographical constraints of the land the applicant submits it is of generally rocky terrain and varied soil compositions with steep slopes that can lead to soil erosion. Bolinda Creek runs through the land resulting in reduced useability of the land for agriculture. The applicant notes that horses are well suited to navigating diverse terrain.
18	Whilst a recent amendment to the planning scheme has removed the requirement that a dwelling is reasonably required for the operation of an agricultural activity this does not mean that a dwelling should be permitted on land within a FZ that can or is being used for agriculture. 
19	The applicant has submitted they would be happy for the use of the dwelling to be linked to horse husbandry on the land and would also accept a condition that the horse husbandry must commence before the construction of the dwelling.
20	The Council noted that the township of Riddells Creek is only 7km away, allowing for nearby accommodation without the necessity of a dwelling on the land. 
21	The applicant has submitted a dwelling on the land would ensure the well being of livestock; the successful operation of the Horse husbandry including an immediate response in relation to birthing, illness or injuries; 24-hour care and surveillance; daily operations and routines which are time intensive could be better managed; as well as security. 
22	A Farm Management Plan has been provided. It states the applicants’ ambition is to establish a mixed farming enterprise based primarily on the breeding of Thoroughbred racehorses. To achieve this ambition, it is stated they intend to undertake a comprehensive agricultural development on the land, including a dwelling, gardens, shedding, rotational grazing, soil improvement and an extensive revegetation program. The Farm Management Plan states the applicants currently have three brood mares on agistment with the intention of having six on the subject land. 
23	The Farm Management Plan does not go into any detail as to the intended operation of the Horse husbandry on the land or other agricultural activity that would necessitate the need for a dwelling.  It does identify that the land was used for cattle grazing. The Farm Management Plan does not identify the suitability of the land for horse husbandry, particularly given its topographical features referred to above. 
24	The comments by the Tribunal in Bourke-Finn v Ballarat CC & Anor   are considered of relevance in this instance where it was stated at paragraph 38:
The application plans show a limited extent of facilities, with the scale of the stable, yarding and paddocks akin to supporting a personnel or hobby level of activity. The scale and layout of facilities for this proposal is to be contrasted with examples of full time thoroughbred businesses …
Conclusion 
25	I am not satisfied that a dwelling on the subject land is necessary for the proposed agricultural activity of Horse husbandry. Nor am I satisfied of the suitability of the proposed agricultural activity of Horse husbandry on the land given the steep terrain referred to above. 
26	The lot size is well below the as of right lot size for a dwelling in the FZ. Given there are other nearby lots that already contain dwellings the land would be suitable for consolidation with those also small lots. I agree with the comments of the Tribunal in Ward v Macedon Ranges SC as relevant at paragraph 26:
Allowing a dwelling on this land would mean future consolidation into larger land holdings would be unlikely. The effect of the dwelling would be to de couple this land from its agricultural value and hence the purposes of the zone.
27	The land has been used in the past for cattle and sheep grazing. There is no evidence that this type of agricultural activity could not continue without the requirement of a dwelling on the land. 
28	I would agree with the comments of the Council:
The proposal is not in keeping with the purposes of the zone and is inconsistent with the objectives of both planning and local policy. The information submitted with the application does not reasonably demonstrate the need for a dwelling on site to operate agricultural uses.
29	The decision of the responsible authority is affirmed. No permit is granted. 
Jeanette G Rickards, Senior Member