VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P416/2023
Permit Application no.P22357 	
CATCHWORDS	
Section 77 – Planning and Environment Act 1987 (Vic.) Golden Plains Planning Scheme, Farming Zone, dwelling use and development, fragmentation of rural land, agriculture.	

Applicants	Ryan McCormick & Amelia McCormick	

Responsible Authority	Golden Plains Shire Council	
Referral Authority	Country Fire Authority	

SUBJECT LAND	Crown Allotment 34B Happy Valley Crossing Road
HAPPY VALLEY VIC 3360	

HEARING TYPE	Hearing	

DATE OF HEARING	15 November 2023	

DATE OF ORDER	23 November 2023	

CITATION	McCormick v Golden Plains SC [2023] VCAT 1295	

Order
No permit granted
1	In application P416/2023 the decision of the responsible authority is affirmed.
2	In planning permit application P22357 no permit is granted.

Alison Glynn
Member			

Appearances
For applicants	Chris McKenzie, Planning Appeals Pty Ltd.	
For responsible authority	Simon D’Angelo, Lawyer of Marcus Lane Group.	
For referral authority	No appearance.	

Information
Description of proposal	Use and development of a dwelling on a lot of less than 100 hectares.  	
Nature of proceeding	Application under section 77 of the Planning and Environment Act 1987 – to review the refusal to grant a permit. 	
Planning scheme	Golden Plains Planning Scheme	
Zone and overlays	Farming Zone (‘FZ’)
Bushfire Management Overlay (‘BMO’)	
Permit requirements	Clause 35.07, with reference to the schedule of the FZ – use and development of a dwelling on a lot less than 100 hectares.  	
Relevant scheme policies and provisions	Clauses 02, 12, 13.02, 14.01, 15.01, 16.01, 17.01, 35.07, 44.05, 65 and 71.02-3. 	
Land description	The site, on title has an area of 15.28 hectares but is described in some documents as 16.6 hectares.  The land is currently occupied with a farm shed and fencing around a partly open grassed area, dams and areas of more treed environ.
To the east and part of the southern boundary abuts public land, being the Mount Erip Flora Reserve.  To the north, remaining southern, and western interfaces are areas of farming land that are understood to be used for grazing purposes.	

  Reasons
What is this proceeding about?
1	Ryan and Amelia McCormick (‘the applicants’) are seeking a planning permit to construct a dwelling on a 15.28 hectare lot in a Farming Zone (‘FZ’) at the south-east corner of Happy Valley Crossing Road and Mt Erip Road, Happy Valley, which is about 30 kilometres south-west of Ballarat.  The dwelling needs a planning permit for both its use and development, as it is a lot of less than 100 hectares.  This is the minimum lot size required to establish a dwelling in the FZ without a planning permit, in accordance with the Golden Plains Planning Scheme (‘the planning scheme’).
2	The Golden Plains Shire Council (‘the council’), as responsible authority under the planning scheme, has refused to grant a planning permit for the dwelling on the basis that the proposed dwelling use:
•	Is not reasonably required for the use of the land as an agricultural enterprise.
•	Has the potential to affect the operation of nearby agricultural uses.
•	May lead to a proliferation of dwellings in the area which would result in the loss of productive agricultural land. 
•	Is inconsistent with planning scheme policy and the council’s adopted Rural Land Use Strategy to protect productive agricultural land and avoid land use conflicts by directing housing to existing settlements and discouraging the development of small lots in rural areas for dwellings.
3	The applicants submit in response to these grounds that the key question to address in this proceeding is whether this proposal should be viewed as an inappropriate rural residential lifestyle dwelling (as it says is put in the council’s grounds of refusal) or accepted as a proposal to establish a genuine agricultural enterprise that will genuinely benefit from the on-site presence of the operators, that is facilitated by a dwelling.
4	From my review of the grounds of refusal, submissions and material provided I find that the key question in this proposal is whether the purported benefit of providing a dwelling on the land to support the proposed agricultural pursuit outweighs potential negative impacts it may have on the land and the area.  This includes the effective loss of agricultural land to a rural lifestyle property, or adverse impacts that may arise from the dwelling use that may limit the operation and expansion of adjoining and nearby agricultural uses.
5	Having reviewed the material and submissions provided against the relevant provisions of the planning scheme I have determined to affirm the decision of the council and direct that no permit is granted.  My reasons follow.
What is proposed?
6	As set out in a combined land management and farm management plan that accompanied the permit application, the applicants have owned the property since 2018 but do not yet actively farm the land.  They currently lease agricultural land on the Bellarine Peninsula, and reside in an urban area of the peninsula where they submit it has limited their capacity to farm their peninsula property effectively or efficiently. 
7	They submit that at the review site they intend to build a birthing and animal husbandry shed, fencing and livestock yards, agricultural shed for machinery, and a dwelling from which to oversee 30 breeding ewes and their lambs with the bulk of the lambs on the land for 4-6 months of the year.  
8	The land, as depicted in figure 1 below, is identified in the farm management plan as having been used for sheep grazing in the past and contains a former shearing shed in the western part of the site.  The land is partly treed, and is understood to have had regrowth of trees in recent years with the land not being actively grazed.

Figure 1 - Nearmap image of the site and surrounds, extracted from the council's submission.
9	A portion of the area of vegetation regrowth is proposed to be retained as a shelterbelt and a habitat corridor, connected to the existing nature reserve to the south.  The area available for sheep to graze is described as being 9 hectares.  The plan also refers to constructing a dam in a suitable location to store water for livestock and replace the two defunct dams which have historically not held much water.  Grazing of what is described as ‘the small amount of livestock’ is to be carried out via a rotational grazing system through an agroforestry woodland of existing trees and shrubs.  The plan sets out that the rotational grazing is beneficial ‘due to the poor quality of topsoil on this site’ and allows pasture to recover, grow longer and develop a mulch layer on the soil surface.  The applicants also submit that over time they hope to grow their business by leasing or purchasing additional land on adjoining lots.  
10	The agricultural pursuit proposed does not require a planning permit.  Nor do the associated works and buildings for agriculture.  It is the proposed use and development of a dwelling that requires a planning permit.  The form and design of the dwelling is not opposed by the council.  It has floor area of 30 by 12 metres with a further 2.5 metre deep verandah wrapping around three sides of the dwelling.  The dwelling is proposed to contain three bedrooms, a study, an open plan kitchen and living area, as well as a separate second living room.  While the dwelling is described as being single storey, it is elevated to comprise an effective two storeys in height, from scaling the elevation plans.  The dwelling, as described by the applicants is to be a family home, is where they can reside while also undertaking the proposed sheep breeding operation.
Is the use of the dwelling acceptable when tested against the FZ provisions?
11	The FZ includes purposes to:  
•	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. 
12	As the review site is less than 100 hectares in area, a permit is required under the FZ to use and develop the site for a dwelling.  The FZ sets out that when considering a proposal for a dwelling it is necessary to consider a number of matters.  Relevantly, these include:
•	Whether the use or development will support and enhance agricultural production.
•	Whether the use or development will adversely affect soil quality or permanently remove land from agricultural production.
•	The capacity of the site to sustain the agricultural use.
•	Whether the dwelling will result in the loss or fragmentation of productive agricultural land.
•	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.
13	Considering these issues requires an integration of considerations, in context of policy of the planning scheme.  I examine these below by addressing the following questions:
•	Does the dwelling support and enhance agricultural production?
•	Will the dwelling lead to adverse impacts on the land or surrounding area?
Does the dwelling support and enhance agricultural production?
14	The applicants submit that the dwelling will enhance the capacity to use the land for breeding sheep, allowing them to be on-site during periods of lambing.  In their current farming pursuit on leased land on the Bellarine Peninsula they do not live on-site which they submit is inconvenient, inefficient and at times not appropriate for animal welfare.  They submit this is because they need to travel to the farm to tend to young lambs or pregnant sheep when it would be preferrable to be on-site and therefore close to the flock.  They also submit it is more efficient to have maintenance equipment and work sheds, used for both domestic and farm purposes, together.
15	Providing a house on the site will enable greater ‘hands-on’ management of livestock and provide convenience to the owners to manage equipment.  The question is whether this benefit to the owners in managing what the farm management plan acknowledges is a small amount of livestock (being 30 breeding ewes and their offspring) outweighs the potential disbenefits of establishing a house on a small rural lot in this location in the FZ.
16	The capacity to use the land for agriculture is limited by the land size and the dwelling area only takes away further land from this potential.  The risk is that this leads to the dwelling use becoming the primary purpose of the land (as a rural residential type use), rather than it being an adjunct to the agricultural use.  The limitation of the capacity to farm the land is acknowledged by the applicants in their submission that they may seek to acquire or lease additional land to farm in the future in addition to the review site.  I find the desire to farm additional land to that of the review site is not relevant to the permission sought because:
•	First and foremost, I need to address the application for what it is, which is to use and develop a dwelling to support a farming enterprise on the 15-16 hectare lot, being the land that is the subject of the permit application.
•	Second, the potential that adjoining land may also be farmed by the applicants in the future, does not necessarily increase or enhance agricultural production.  Nothing was put to me that the adjoining land is not or cannot be farmed through existing arrangements that apply to that land.  
17	The applicants also submit that they are willing to enter an agreement under Section 173 of the Planning and Environment Act 1987 (Vic.) to require that at all times, the dwelling must be used in association with the use of the sheep breeding agricultural activity as described the farm management plan.  This farm management plan would then be endorsed as part of the permit.  
18	In granting a permit, a responsible authority must be confident that conditions that could apply to a permit can and will be implemented.  I find the proposition of a condition to enter an agreement to farm the land in a particular way to be problematic.  For example, the onus would remain on the council to enforce that the ongoing operation of a use that does not require a planning permit.  It is not clear how the council would be expected to monitor the ongoing use of the land to determine that the house remained part of the specific farming enterprise, rather than transforming into a rural lifestyle lot.  
19	If the land is sold or circumstances of the current owners change, the issue of enforcement may be further aggravated. This is noting that a planning permit runs with the land, not the applicant.  There is also no clarity as to would occur if the farming operation changed or ceased.  The problem with such a condition is also acknowledged in Parkin v Golden Plains SC (‘Parkin’).  In Parkin the Tribunal commented that such a condition cannot be relied on to convert an unacceptable proposal into an acceptable one.  In Parkin, the Tribunal applied a similar condition, but only ‘to simply give effect to the applicant’s intentions’.  As I discuss later, the Tribunal was satisfied in Parkin that the specific circumstances of that site made the proposal before it acceptable.
20	My review of the proposal therefore gives little weight to the use of a condition as proposed.  The permit needs to rely on reasonable confidence that the use of the dwelling is a use that can continue to enhance agricultural use of the land to which the permit applies, and will not result in adverse impacts to the land or surrounding area.
21	In summary I find that the applicants have demonstrated that the review site can support a small agricultural enterprise.  The agricultural enterprise proposed may benefit from the use of a dwelling on-site but the question is whether this benefit to the owners can outweigh potential adverse issues that may arise from the dwelling use and development.  This is the matter I address below.
Will the dwelling lead to adverse impacts on the land or surrounding area?
22	Determining if the proposal results in adverse impacts requires consideration of objectives of the FZ.  These include:
•	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. 
23	It is then necessary to consider if the proposal meets these objectives in context of relevant policy of the planning scheme and the physical setting.
24	There are a range of State and local policies relevant to the proposal.  These include clause 14.01-1S which includes an objective to protect productive agricultural land from unplanned loss due to permanent changes in land use.  Establishing a dwelling on the land is a new land use.  The strategies under this clause then go on to state:
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.
25	The proposal is contrary to these policies as it establishes a house on what is an isolated small lot.  The land area is very small relative to the minimum 100 hectare lot required to establish a dwelling without a planning permit in this area.  The area of productive agricultural land on the site is also very small for the area.  The planning scheme in such instance encourages the consolidation of existing isolated lots.  While the applicants submit they may seek to farm adjoining land through lease or purchase in the future, there is no certainty this will occur or that it will enhance production across the broader area as I have set out above.  
26	There is also local direction in clause 14.01-1L sitting in conjunction with clause 14.01-1S.  These policy directions more specifically refer to ‘dwelling excisions’ rather than dwellings themselves, but reinforces direction to ‘avoid dwellings on undersized lots that would limit the productive use of surrounding agricultural land’.  
27	In this instance, an adjoining neighbour has written a letter of support to the proposal, noting that it is ‘preferrable’ to live on a property used for breeding sheep and that in his view there will be no negative impacts to the general area.  Another letter of support was provided by a relative of the applicants to verify that the applicants have a genuine interest in farming.
28	I do not question the applicants genuine interest in farming, or their preference to live on the land.  The question is whether the use of a dwelling on this small lot creates a predominant dwelling use of the land, transforming it to a rural lifestyle property rather than a use to support the as of right agriculture use, as sought by the FZ purposes.  
29	Clause 14.01-1L requires a decision maker to consider, as relevant, the Golden Plains Rural Land Use Strategy (2008).  The council referred me to specific commentary in this strategy that:
The Shire has cautiously exercised discretion in terms of granting planning permits for new houses in these rural areas. The Shire has sought to ensure that any residential development in the rural areas is closely linked to supporting and sustaining agricultural uses. Farm dwellings or rural houses are those that are on properties that are primarily used for agriculture, and the residential function of the property is ancillary to the farming function.
30	This is linked to settlement strategy at clause 02.03-4 of the planning scheme that recognises that placing housing in isolated locations can result in isolated residential use without adequate access to social or physical services.  
31	A balancing exercise of use requirements is therefore required.  While it may be more efficient for the applicants to be on-site to rear 30 ewes and their lambs, this also results in a family home that may default to an isolated rural lifestyle property that is well away from services and contrary to the planning scheme policies to focus rural residential properties to other locations.  
32	To this extent, the proposal before me can be distinguished to that in Parkin that enabled the use of a dwelling on 8 hectares of land on a FZ lot in the same municipality.  In Parkin, the Tribunal usefully set out some context to decision making that is consistent with matters put to me, being in the same planning scheme area.  In particular Parkin comments that the Golden Plains Planning Scheme:
•	Recognises agriculture is a major contributor to the municipality’s economic base.
•	Encourages the protection of productive agricultural land.  This is an outcome encouraged by both the provisions of the Farming Zone, State and local policy.
•	Encourages the protection of productive agricultural land through a range of policy initiatives including those that seek to contain urban development within existing townships and the creation of a clear distinction between urban and rural areas.  
•	Discourage the encroachment of dwellings into rural areas because such uses contribute to land use conflicts that have the potential to constrain agricultural land from being used for agricultural purposes.  The encroachment of dwellings into rural areas also removes land from productive agricultural use, and artificially inflates the value of land to the detriment of the agricultural industry.  
•	Discourages the fragmentation of rural land holdings and the subdivision of large lots into smaller lots.  Under the schedule to the Farming Zone the minimum subdivision area is 100 ha and the minimum area for which no permit is required to use land for a dwelling is 100 ha. 
33	In Parkin the Tribunal was persuaded that the State policies at clause 14.01-1S, to limit new housing development in rural areas was acceptable due to the specific circumstances of that case.  The Tribunal set out that the facts and circumstances before it were that:
[26]	…this locality along the two roads has already fragmented rural land holdings and effectively removed those lots on which dwellings have been permitted from agricultural production.  This proposal does not contribute to the further fragmentation of rural land.  To a large extent the construction of a dwelling on the lot does little more than facilitate the most likely consequential outcome flowing from the decision to create the small lots in the first instance, i.e. the creation of a rural residential enclave in this locality 
34	In the circumstances before me, the proposed dwelling is to be located in an area that is well away from any other dwelling or rural residential type enclave.  This is also different to the circumstances in the decision of Wiseman v Moorabool (‘Wiseman’) and Deacon v East Gippsland, (‘Deacon’) referred to by the applicants.  Both of these other cases referred to by the applicants are in different locations and different municipalities and therefore have different local policy contexts.  Wiseman was determined at a time where the FZ provisions were also different.  Deacon is also in a different location and municipality.  It is a more recent decision but in that instance the Tribunal was again persuaded by the specific circumstances of that site, being a lot directly adjacent to an urban zone.
35	The site of my consideration is not close, or adjoining other rural residential type development or urban zoning.  It is in a location where council settlement strategy at clause 02.03-1 of the planning scheme seeks to avoid rural land fragmentation and direct rural living uses to designated rural living zoned land.   
36	I find there are no extenuating circumstances, such as could be identified in Parkin or other cases referred to, that can be applied to this site.  I am therefore not satisfied that on balance of the possible benefits of having a dwelling on this land outweigh the policy directions of clause 14.01-1S to avoid such circumstances.  Further, I find the risk of the permanent loss of agricultural land through the use and development of a dwelling on such a lot is not balanced against the convenience of having a dwelling associated with the scale of enterprise proposed.
other matters
37	Given my findings above, I have not considered in detail the development as it relates to the Bushfire Management Overlay (‘BMO’).  I note that the council and Country Fire Authority are not opposed to the dwelling’s construction in relation to this permit trigger.  
Conclusion
38	For the reasons given above, the decision of the responsible authority is affirmed.  No permit is granted.

Alison Glynn
Member