VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment division
planning and environment LIST	vcat reference No. P827/2019
Permit Application no. 2018/273	
CATCHWORDS	
Section 77 of the Planning and Environment Act 1987; Latrobe Planning Scheme; Farming Zone; Environmental Significance Overlay - urban buffer (coal resource); land size; dwelling; determination of agricultural land use.	

APPLICANT	W. A. Grinstead-Jones and H. L. Campbell 	
responsible authority	Latrobe City Council	
SUBJECT LAND	CA 8A1, Flynns Creek Road 
FLYNN VIC 3844	
WHERE HELD	Melbourne	
BEFORE	Frank Dawson, Member	
HEARING TYPE	Hearing	
DATE OF HEARING	30 October 2019   	
DATE OF ORDER	12 March 2020	
CITATION	Grinstead-Jones v Latrobe CC [2020] VCAT 330   	

Order
1	Pursuant to Section 127 and Schedule 1 clause 64(2) of the Victorian Civil and Administrative Tribunal Act 1998 the permit application is amended to substitute for the permit application plans the following plans filed with the Tribunal:
Plans prepared by Latrobe Valley Drafting.
Drawing nos. Lv3593-002 and Lv3593-003, Revision P3, dated 19/9/2019. 
(Permit application plans for the proposed dwelling remain unaltered).  
Also substituted with the consent of the parties is a revised business plan and an updated planning report.  
2	In application P827/2019 the decision of the responsible authority is set aside.
3	In planning permit application 2018/273 a permit is granted and directed to be issued for the land at CA 8A1 Flynns Creek Road, Flynn in accordance with the endorsed plans and the conditions set out in Appendix A.  The permit allows:
•	The use of the land for a dwelling in the Farming Zone - Schedule 1.
•	Buildings or works associated with a use in Section 2 of Clause 35.07-1.
•	The construction of a building and works on land in the Environmental Significance Overlay – Schedule 1.

Frank Dawson
Member			

Appearances
For applicant	Ms Sally Moser, town planner of Moser Planning Services Pty. Ltd.	
For responsible authority	Ms Kristy Crawford.	

Information
Description of proposal	The proposal in this proceeding is for the use and development of land for a single dwelling and an outbuilding to facilitate the use of the land for horse breeding and grazing. The proposed dwelling is a single storey brick dwelling containing four bedrooms, a floor area of 318m2 and a total height of 5.3 metres. The proposed outbuilding shown on the substituted plans has a floor area of 96m2 and a maximum height of 6.4 metres. 	
Nature of proceeding	Application under section 77 of the Planning and Environment Act 1987 – to review the refusal to grant a permit. 	
Planning scheme	Latrobe Planning Scheme	
Zone and overlays	Farming Zone – Schedule 1 (FZ1).
Design and Development Overlay – Schedule 1 (DDO1) (part).
Environmental Significance Overlay – Schedule 1 (ESO1).
The land is partially within an area of aboriginal cultural sensitivity (area adjacent to Flynns Creek).	
Permit requirements	Clause 35.07-1 (Section 2 of the Table of Uses requires a permit for the use of land for a dwelling).
Clause 35.07-4 (a permit is required for a building or works associated with a use in Section 2 of Clause 35.07-1).
Clause 42.01-2 (a permit is required to construct a building or construct or carry out works).	
Land description	The land is on the eastern side of Flynns Creek Road, approximately 950 metres south of the Princes Highway and approximately 525 metres from the southern edge of the small hamlet of Flynn. The Loy Yang A Power Station and coal extraction site is approximately 10 kilometres to the south-west. 
The land has an irregular shape, with an approximate frontage to Flynns Creek Road of 463.49 metres and a total land area of 32.77 hectares. From the road, the land slopes south and east down to Flynns Creek, which forms the eastern boundary of the land.
The land is encumbered by a high pressure gas pipe line easement approximately 24 metres wide that runs east-west through the land and an electricity supply easement approximately 18 metres wide that runs north-south through the centre of the land
The land is mostly cleared grazing land, with some treed areas at the entrance, along paddock windbreaks and within the riparian land adjacent to Flynns Creek.
The only building on the land is a small  outbuilding approximately 100 metres from the road and a timber cattle yard and loading ramp at the entrance.
In addition to the dwellings and public buildings in the hamlet of Flynn (approximately 15), there are four rural dwellings on surrounding land; these are 160 metres to the west, 270 metres to the north-west, 970 metres to the north-east and 800 metres to the south-west. I note that farm holdings in the immediate area vary in size, broadly within the range 40 -90 hectares. 	
Tribunal inspection	The Tribunal inspected the subject land and the surrounding area.   	

Reasons
What is this proceeding about?
1	In March 2019, the Latrobe City Council decided to refuse a planning application for a dwelling and outbuilding at C.A 8A1, Flynns Creek Road, Flynn. The applicants wish to construct a dwelling and an outbuilding containing stables, an equine veterinary crush and a wash bay.
2	The applicants request the Tribunal to review the Council’s decision.
3	Council’s reasons for refusing the application are summarised as follows:
•	Inconsistency with the planning policy framework of the Latrobe Planning Scheme, particularly concerning the protection of agricultural land and the contention that the proposed dwelling is for a rural residential purpose.
•	Inconsistency with the local planning policy framework, again in relation to rural living and the protection of agricultural land. A further issue for Council in relation to local policy concerns the protection of coal resources; particularly to ensure that new development does not compromise the future utilisation of the Latrobe Valley coal resources.
•	The proposed dwelling is inconsistent with the purpose and decision guidelines of the Farming Zone. 
•	The proposal is inconsistent with the purpose of the Environmental Significance Overlay; specifically, the inclusion of the subject land in Schedule 1 to the ESO, which refers to the urban buffer that has the dual purpose of protecting the coal resource from incompatible development and protecting adjacent urban areas from the impact of coal extraction (at the location of the subject land, ESO1 comprises a strip of land approximately one kilometre wide, extending between the Flynn hamlet and the Gippsland Railway Line to the north to the southern boundary of the subject land).
•	The proposal is inconsistent with the decision guidelines at Clause 65.01
•	The proposal is inconsistent with the strategic intent of the seriously entertained Amendment C105  (Live Work Latrobe), particularly in the context of the proposed Schedule 1 to the Farming Zone. 
4	The permit applicant proposes to construct a dwelling and an ancillary outbuilding for the purpose of progressively developing a horse breeding business over five years, reaching a total of approximately 30 horses. During the initial years, other farm activities will include raising weaner cattle and cutting hay from the paddocks on a seasonal basis.
5	On behalf of the applicants, Ms Moser submits:
•	The proposed dwelling will enable the owners to undertake a productive farming enterprise on the land by breeding animals with a high value (and) providing employment for themselves. Both applicants have (experience) in the horse industry and agricultural sector.
•	No objections were received from the public notification of the proposal. Concerning the proximity of the land to coal reserves (the land abuts the State Resource Overlay to the south), no objection to the proposal was raised from the Department of Jobs, Precincts and Regions.
6	An extract from the site plan prepared for the applicant by Latrobe Valley Drafting is reproduced below to illustrate the layout of the horse breeding proposal.

CA 8A1 Flynns Creek Road, Flynn – Proposed site layout (north to the top).
Amendment VC166
7	On 17 February 2020, the Minister for Planning amended the Victorian Planning Provisions and the Baw Baw, Latrobe, South Gippsland and Wellington Planning Schemes in the form of VC166, which the Explanatory Report states will;
..insert a new regional planning policy for coal in the Gippsland Region at Clause14.03-1R (Resource exploration and extraction -  Gippsland Coal Resource).
Existing policy statements within Clause 21 of the Baw Baw, Latrobe, South Gippsland and Wellington Planning Schemes have been translated to form the new consolidated regional policy.
8	In this case, the policy applies to the Coal buffer strategies and the Coal buffer policy guidelines  in the Environmental Significance Overlay – Schedule 1 (ESO1) of the Latrobe Planning Scheme. Clause 14.03-1R contains the objective to protect coal buffer areas, with strategies that include (as relevant to this proceeding):
Maintain adequate buffer widths, based on:
•	Buffer areas that extend for 750 (+ or - 75) metres from any urban settlement boundary to the perimeter of a 250 metre wide coal operational area.
•	The total separation area between an urban settlement boundary and the crest of any future open cut development should not be less than 1 kilometre in width.
Separate existing and future coal related development from urban settlement and main transport corridors within the buffer areas.
Maintain buffers that protect urban areas and main transport corridors from the adverse effects of existing and potential coal-related industry, energy generation and mining.
Maintain buffers that protect coal resource areas and associated development from encroachment by adjacent urban areas.
Provide buffers between existing and proposed urban zones and coal resource areas that reduce the likely effects of earth subsidence, noise emission, dust, fire hazard and visual intrusion.
Protect coal buffers from inappropriate use and development within the buffer.
Encourage high amenity and low intensity uses such as farming and broad scale recreation within buffer areas.
Discourage incompatible use and development within buffer areas, including:
•	Residential including rural living.
•	Commercial.
•	Industrial unless ancillary to coal development and within 250 metres of the coalfield side of the buffer.
9	The Coal buffer policy guidelines at Clause 14.03-1R are not all relevant to this proceeding, but are reproduced below for completeness:
Consider as relevant:
•	Discouraging the subdivision of land to create lots of less than one hectare.
•	Discouraging the subdivision of land that would create average lot densities of more than one lot per 10 hectares.
•	Discouraging the construction of a house on a lot of less than one hectare created prior to 13 April 1988.
•	Ensuring that rural living within the buffer is within 200 metres of the nearest urban side of the buffer area boundary.
•	Discouraging the construction of a house more than 200 metres from the nearest urban side of the urban buffer unless:
– 	the land is vacant;
– 	the land existed as a separate lot prior to 13 April 1988;
– 	there are no suitable building sites within 200 metres of the nearest urban side of the urban buffer boundary.
10	As flagged in the Explanatory Statement, I notice the buffer widths contained at Clause 14.03-1R in Amendment VC166 are effectively a translation from local policy at Clause 21.02-5 (land use buffers) of the planning scheme in effect at the time of the hearing. 
11	It is also relevant that the provisions of the Environment Significance Overlay – Schedule 1 (ESO1) have not altered as a result of Amendments C155 and VC166.
What are the key issues?
12	I consider the key questions to be addressed in reaching my decision in this matter are as follows:
•	Will the proposal result in the land being used for agriculture? 
•	Is the construction of a dwelling a necessary component of the proposed agricultural enterprise?
•	Is the proposal for a dwelling and the associated agricultural enterprise supported by planning policy?
•	Does the proposal meet the purpose and decision guidelines of the Farming Zone?
•	Does the proposal meet the environmental objectives and decision guidelines of the urban buffer at Schedule 1 to the Environmental Significance Overlay?
13	The Tribunal must decide whether a permit should be granted and, if so, what conditions should be applied.  I have considered all submissions presented with regard to the applicable policies and provisions of the Latrobe Planning Scheme and I have viewed the subject land and the surrounding area. On the information before me, and taking into consideration;
•	the size of the land, 
•	the retention of the land in a single title, and
•	the proposed agricultural enterprise,
I find the proposal for a dwelling and ancillary building is acceptable on the basis that the size of the subject land is sufficient to support the proposed agricultural use. 
14	Therefore, I have decided to set aside the Council decision and grant a permit.  My reasons follow.
Will the proposal result in the land being used for agriculture? 
15	The subject land has been used for grazing stock and some hay production, but is not currently actively farmed. The land area of 32.77 hectares is divided into four fenced paddocks, with two dams that drain to Flynns Creek via a central drainage line. Flynns Creek forms the eastern boundary of the site. The permit applicants propose to use the land for the breeding, training and sale of Australian stock horses under the name of the GJC Pastoral Trust. The proposed Farm Management Plan accompanying the application states: 
The horses will be sold to mostly competitive riders in camp drafting and other performance events as well as people who use working horses in the agricultural industry.
16	In her submission for the permit applicants, Ms Moser explains their credentials for the proposed business as follows:
My clients are Ms Hanna Campbell and Mr Wayne Grinstead-Jones. Ms Campbell undertook a Bachelor of Agricultural Science, graduating with a Bachelor of Agriculture in 2016. She has an extensive background in the agricultural industry including stud stock showing, dairy farming and sheep farming… Ms Campbell has been riding and competing on Australian stock horses for over fifteen years The primary day to day operator of the horse breeding business will be Ms Campbell.
Mr Grinstead-Jones has also been involved with horses for fourteen years including competition for the last 6-7 years. He has been a member of the Australian Stock Horse Society for ten years. Mr Grinstead-Jones will be involved in the daily running of the operation and will train the horses so that they can be sold to end customers who will purchase them for their chosen discipline.
17	The Farm Management Plan sets out the projected costs and income over a five year period for the breeding, training and sale of horses, initially with the purchase of five to seven broodmares and culminating in a total of approximately thirty horses of various ages “from mature breeding mares to foals.” The Farm Management Plan is specific to the subject land, although I note from Ms Moser’s submission that the applicants plan to expand the farm as the business develops. My decision in this application does not consider the prospect of expansion, but is confined to the merit of the submissions and the planning scheme provisions pertaining to the subject land.
18	The site plan shows the property is to be divided from the existing four paddocks to thirteen smaller paddocks, a configuration typical of many horse breeding properties. The paddocks include ten smaller ‘mare and foal’ paddocks close to the proposed dwelling for supervision of the breeding stock and progeny. 
19	The proposed dwelling is located at the north-west corner of the site with the proposed outbuilding and round yard close by.  The paddocks are distributed either side of the pipeline easement that runs approximately through the centre of the site on an east-west alignment. This maintains clear access along the full length of the pipeline easement within the subject land.
20	The above information is contained in the substituted plans and supporting documentation considered prior to and during the hearing. While Council considered material concerning the proposed agricultural enterprise as part of the original application and made its decision on that material, I consider the substituted material is more detailed and provides a clearer explanation of the proposed business. 
21	Council is not persuaded by the substituted documents, and at paragraph 24 of the Council submission, Ms Crawford states:
The particulars of the farming activities to occur on the site are unclear due to numerous inconsistencies identified between the Planning Application Report (19 September 2019), the ‘Five Year Plan’ and the ‘Executive Summary GJC Pastoral Australian Stockhorses’. There are inconsistencies, particularly in regard to the number of breeding stock proposed at any time.
22	I have considered all three documents and viewed the table of inconsistencies prepared by the Council illustrating the differences between the submitted documents. The variations are minor and seem to reflect the vagaries of commercial farming. For example, on page 4 of the Business Plan submitted by the applicants, they state:
Initially, we plan to have seven breeding mares and produce seven foals per year, as this will be easy for Hannah and myself to manage in the first few years. As our stud name grows we plan to retain at least one filly foal on the third year of business, and at least one filly foal on our fourth year of business which will increase our breeding capacity from seven broodmares to nine to eleven broodmares in the years going forward.
23	I find the material supporting the agricultural use of the land describes a horse breeding business at a commercial scale commensurate with the land area of 32.77 hectares. It is also evident that the implementation of the proposal will use the land more intensively than the existing agricultural activity on the land. Moreover, I consider the proposed enterprise will meet the purpose of the Farming Zone by retaining the land in agricultural production.
Is the construction of a dwelling a necessary component of the proposed agricultural enterprise? 
24	The applicants propose to construct a four bedroom single storey dwelling as their residence. In Schedule 1 to the Farming Zone, the minimum area for which no permit is required for a dwelling is 100 hectares, therefore the proposal for a dwelling on 32.77 hectares requires a permit.
25	Council submits the proposal is for a ‘rural lifestyle dwelling’ and that the proposed dwelling on the subject land;
..does not meet the objectives and/or strategies of the .. State and Local Planning Policy Frameworks. The use and development of a dwelling may compromise the viability of the genuine agricultural pursuits in the area and restrict the possible future expansion of these operations..
26	Unfortunately, Council’s assessment appears to be based in part on an incorrect understanding of the size of the land. From my reading of the documents, the error commenced with the response to Council’s request for further information. Council’s request includes further information concerning the need for full time occupation of the land and the proposed agricultural landuse. The request states:
After assessment against the Farming Zone and relevant State and local provisions that related to agricultural land, it has been determined that the farm management plan submitted with the application does not adequately justify the need for a full time presence on the land. Nor does the application adequately address how the dwelling will not impact on the agricultural and surrounding land, including impacts on any intensive agriculture. Further information is required to adequately justify the need for a full time presence on the land and impacts on agricultural landuse as detailed above. 
27	In response, LVD Drafting provided information on 1 February 2019 as follows: 
The property is not currently being used as productive agricultural land and hasn't been stock for some time. Majority of pastures are unimproved.
It is unlikely that the property would be purchased and used solely for farming because of the small size of the lot ( 8 acres) as well as the limitations that the easements on the lot impose.
Using the common calculation of one head of cattle per acre, the property could only sustain eight head, which would hardly be a feasible agricultural enterprise. In addition many of the surrounding allotments are of a similar size and are occupied with single dwellings and outbuildings, the type of development typical for this area.
It is believed that if the owners of the property could reside on the land, they could give the land the necessary care and maintenance and would be able to improve the pastors as per the submitted farm management plan, in order to increase the productivity of the farm
The owners also wish to breed horses on the property, a venture that requires constant monitoring and supervision especially during birthing times. Pregnant mares require constant care during the 11-12 months of gestation, including the providing of special feeds, supplements and regular vet checks. In addition, the foals require constant care and monitoring as well as protection against stray dogs and the like. This would only be possible if there was someone on the property at all times. 
28	The property is 80 acres in size, however the content of the response may also indicate that the writer did not undertake an adequate investigation of the site.
29	The problem is compounded in the Council’s submission, which reproduces  the response from LVD Drafting without correction. At paragraph 78 of the Council submission, Ms Crawford states:
The Farm Management Plan (within the Planning Application Report) and further discussion on it offered by the applicant strongly suggests that the proposal is more akin to a hobby enterprise, albeit a profitable one, as opposed to a de facto agricultural pursuit suited to land in the Farming Zone, Schedule 2.
30	From the above information, I surmise that Council may have decided the application on the perception of an 8 acre site; hence the characterisation of the proposal as ‘akin to a hobby enterprise’. Ms Moser informs me at page 8 of her submission:
There was some confusion when the application was lodged about the size of the land and as a result there is a reference in the officer’s report to the area of the land being 8 acres. This, I am advised, was clarified during the application process.
31	Whether or not I am incorrect on the point of confusion in relation to land size, it does not inhibit my ability to ‘stand in the shoes’ of the Council in determining this review application. The plans and supporting documents substituted for the application plans by the Tribunal at the commencement of the hearing form the basis of my decision. All of the submissions by the parties, and my decision, are made on the basis that the size of the subject land is 32.77 hectares (approximately 80 acres).  
Previous Tribunal decisions
32	In her submission for the Council, Ms Crawford drew my attention to three Tribunal decisions concerning proposals for a dwelling in the Farming Zone.
33	In Bailey v Moyne SC [2010] VCAT 771, Senior Member Bennett considered a proposal for a dwelling on a 28 hectare site used for beef cattle grazing in the farming Zone. In refusing the proposed dwelling, Senior Member Bennett notes at paragraph 4:
4.	There is no doubt that the land is being used for productive agricultural purposes, but that has occurred even without a dwelling on the site. It is evident that many of the smaller lots within the area are being used productively without the necessity of a dwelling being located on each one.  Construction of a dwelling immediately changes both the land value and the potential for the land to be eventually taken out of productive agricultural use. While I do not doubt that the current owner intends to continue with beef cattle production, there can be no guarantee that at some future time it will not be purchased as a lifestyle property. 
34	In Andrews v Hepburn SC & Anor [2013] VCAT 408, Senior Member Potts considered a proposal for a dwelling on a site of 8.5 hectares in the Farming Zone. At paragraphs 18 and 19, Senior Member Potts observes:
18.	Through the MSS, the Council recognises that there are opportunities to support diversification of agricultural activity in order to address the decline in traditional agricultural activity. It is acknowledged that such diversification will be through smaller scale agricultural enterprises supported by off-farm income which will none the less contribute economically to the region and achieve positive land management and land rehabilitation outcomes.
19.	On this basis, diversification of agricultural land use and hence small agricultural enterprises can be supported by planning decision making. However in supporting such an outcome another key planning strategy is to not support dwellings on small lots unless they are associated with existing agricultural uses. There is therefore a clear position in policy to ensure bone fide agricultural activity is being undertaken on the land when a dwelling is also being proposed. (my emphasis).
35	In refusing the application, a key issue in Senior Member Potts’ decision is the lack of a business plan. The issue is encapsulated at paragraph 39 as follows:
39.	The commercial nature of the activities appears to be an aspiration rather than a clear and substantive agri-business plan. Indeed no systematic farm or agri-business plans have been placed before me to support the application. Indeed, Mr Andrews evidence about how many cattle he may graze on the property and how he will attend to the stock is vague and there is little detail by way of a farm business plan.
36	Finally, in Bourke-Finn v Ballarat CC & Anor [2013] VCAT 908, Senior Member Potts considered a proposal for a dwelling in the Farming Zone on a site of 2.5 hectares. In the description of the proposal, Senior Member Potts explains:
The dwelling is said to be needed to support a proposed thoroughbred horse breeding and keeping operation on the property. Stables, a horse shelter and a 12m diameter round yard are also proposed, with the land being divided into three separate paddocks.
37	In the Bourke-Finn decision, Senior Member Potts observes at paragraph 39:
39.	Based on the information before me, the proposed nature of the thoroughbred horse keeping activity has the hallmarks of horse keeping activity at a personnel interest or hobby level rather than a full time thoroughbred enterprise. Thus while the proposal may have a similar character to that of an agricultural enterprise, I am not persuaded that what is proposed represents the level of agricultural enterprise intended to be supported by the Farming Zone and rural land use policy. It has the character of a lifestyle ‘horse’ property rather than a bona-fide thoroughbred husbandry enterprise.
38	I have read and considered the three decisions cited above in the context of the proposal before me.  The issues pertinent to my consideration of the matters in this proceeding are the importance of demonstrating that the agricultural enterprise requires occupation of the land (and therefore a dwelling) and whether there is a sound business case for the proposed agricultural use. 
39	Less relevant to this proceeding are the land sizes cited in the above Tribunal decisions; 8.5 hectares in the case of Andrews and 2.5 hectares in Bourke-Finn. In Andrews, the Tribunal commented on the lack of a farm business plan, while in Bourke-Finn the key issue is the fact that the property is very small and most likely can only function as a ‘lifestyle’ horse property. 
40	A different issue is presented in Bailey. In that decision, the Tribunal noted that the 28 hectare property had been used for grazing beef cattle for many years, indicating the construction of a dwelling is not essential for the continuation of the existing use.
41	In this proceeding, the proposal for horse breeding on the subject land is a relatively intensive activity. Ms Moser includes considerable detail describing the attention horses require as part of the daily operation of a horse breeding facility and I accept that the process of breeding horses at the scale proposed cannot be undertaken ‘remotely’. I am informed in Ms Moser’s submission that foaling tends to occur at night time and in the early morning and quick attention from handlers is required, sometimes for an extended period.   
42	Of relevance to my consideration of a dwelling is the ancillary outbuilding, the design of which is ‘purposed’ for horse breeding. The building is described in the farm business plan as:
..a walk through barn, consisting of three weather proof stables, a horse vet crush (for artificial insemination, pregnancy scanning and other medical issues that may arise), a tack room and wash down bay. The barn will be hooked into power and water, allowing us to use it all hours of the day. 
43	The above description of the outbuilding facility provides an indication of the scope of the breeding process and when considered in conjunction with the size of the proposed enterprise and the attention required to manage horse breeding, I find the construction of a dwelling is a necessary component of the proposed agricultural enterprise.
Is the proposal for a dwelling and the associated agricultural enterprise supported by planning policy? 
44	The Victorian Planning Policy Framework and the Local Planning Policy Framework contain a number of objectives, strategies and decision guidelines relevant to the construction of a dwelling and the proposed agricultural enterprise under consideration. 
45	Noting the proposal does not involve subdivision of the land, but will retain the existing Crown Allotment of 32.77 hectares, I see the key policy issues are whether a dwelling is essential to support the proposed agricultural activity and whether the proposal as a whole will adversely impact the adjacent State coal resource. 
46	Without reciting all of the policy content, the following points summarise the relevant policies:
•	Both State and local policies concerning agriculture seek to avoid the permanent removal of productive agricultural land. The objective is to retain land in agricultural use, rather than; 
–	fragmenting agricultural land into lots too small to sustain an agricultural enterprise; 
–	permitting a dwelling on farming land that has been removed from viable agricultural production;
–	permitting a dwelling that may jeopardise the future availability of productive agricultural land.
–	avoid impacting the continuation of primary production on adjacent land from non-agricultural land uses, or uses that have adverse implications for agricultural infrastructure or biosecurity. 
•	Encouraging agricultural diversity and value adding enterprises that result in more effective use of agricultural land. 
•	Consideration of the location of the subject land within an urban buffer designed to accommodate land uses appropriate to providing a buffer between the Gippsland Coal Resource and urban settlements and major transport routes (in this case the hamlet of Flynn, the Princes Highway and the Gippsland Rail Line).
•	Encourage low intensity uses such as farming within the buffer area.
•	Avoid the development of dwellings on land in Schedule 1 areas in the Farming Zone (commercial agriculture) that are not supported by a farm plan that demonstrates that a dwelling is required for an agricultural use.
47	 A relevant decision guideline in the Farming Zone – Schedule 1 concerns:
The nature of the agricultural activities on the land and whether they require permanent and continuous care, supervision or security as provided by a dwelling on the land, or whether they can be managed from an off-site location.
48	Considering the above policies as a whole, I find the proposal has an acceptable alignment with planning policy for the following reasons:
•	The subject land is retained as a single lot.
•	The horse breeding proposal is supported by a credible farm business plan ‘geared’ to the 32.77 hectare property size.
•	The farm plan requires a dwelling to enable the operators of the business to have close access to the breeding stock. 
•	The use of the land for farming accords with a preferred land use in the Gippsland Coal Resource urban buffer.
•	The proposed horse breeding business is compatible with the surrounding agricultural land use.
•	The land will not be taken out of agricultural production.
Does the proposal meet the purpose and decision guidelines of the Farming Zone?
49	There is an expected accord between planning policy for agricultural land and the purpose of the Farming Zone. Of particular relevance is the purpose:
•	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.
50	I find the proposed agricultural use and the associated dwelling will encourage the retention of productive agricultural land by establishing a new agricultural enterprise on currently underutilised land. I find the proposed dwelling is an essential part of the business that will facilitate, rather than adversely affect, the use of the land for agriculture. In relation to employment, the occupation of the land by the proponents will introduce an new agricultural activity to the area and contribute to the local rural population.  
51	In response to the decision guidelines in the Farming Zone at Clause 35.07-6, I find the proposal offers an acceptable response to the matters that must be considered and are specifically relevant to this proposal, viz:
•	Whether the site is suitable for the use or development and whether the proposal is compatible with adjoining and nearby land uses. 
•	How the use and development makes use of existing infrastructure and services. 
•	The potential for the use or development to limit the operation and expansion of adjoining and nearby agricultural uses. 
•	The capacity of the site to sustain the agricultural use. 
•	The agricultural qualities of the land, such as soil quality, access to water and access to rural infrastructure. 
•	Any integrated land management plan prepared for the site. 
•	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. 
•	The location of on-site effluent disposal areas to minimise the impact of nutrient loads on waterways and native vegetation. 
52	As set out in my reasons, I have assessed the subject land to be of sufficient size to support the proposed horse breeding business. I do not characterise the site as a hobby farm, or the proposal as a ‘rural lifestyle’ activity.  
53	During my site visit, I formed the view that the use of the subject land for a dwelling and horse breeding sits comfortably with the agricultural activity occurring within the surrounding rural landscape. 
Does the proposal meet the environmental objectives and decision guidelines of the urban buffer at Schedule 1 to the Environmental Significance Overlay?
54	The statement of environmental significance at Schedule 1 to Clause 42.01 of the Latrobe Planning Scheme (ESO1) explains:
The coal industry is of national and State importance due to its use as the primary energy source for the electricity generating industry in Victoria. The impact on the environment is radical. Buffers protect those elements of the Coal Buffers Policy Area such as urban settlements from the impact of the radical change to the environment from the coal industry.
55	The environmental objective to be achieved within the buffer states (in part):
To ensure that development in the Gippsland Coalfields Policy Area provides mutual protection of urban amenity and coal resource development and the continued social and economic productive use of land.
56	The subject land is located within the southern perimeter of the buffer, abutting Schedule 1 to the State Resource Overlay (Gippsland Brown Coalfields).
57	A permit is required for a dwelling in the ESO1, however, the provisions in the schedule generally relate to urban development. The key criteria for development is to be;
.. compatible with both the adjacent urban and coal related uses of land.
58	As mentioned in the context of planning policy earlier in my reasons, the coal buffer strategies relating to the Gippsland Coal Resource at Clause 14.03-1R encourage farming as a low intensity use within the buffer. In this context the proposed agricultural use is consistent with policy. 
59	The strategy discourages incompatible land use and development within the buffer area, including residential development and rural living. Given the buffer policy regards farming as ‘low intensity use’, I find the inclusion of a dwelling associated with a farm is an expected and acceptable outcome. 
What conditions are appropriate?
60	In deciding the conditions to be included on the permit the Tribunal has had regard to the draft conditions provided to the Tribunal by the responsible authority and the submissions of the parties in addition to the matters which arise from these reasons.
61	At the end of the hearing, Ms Moser informed me that the ‘without prejudice’ draft conditions provided by the Council were generally acceptable to her clients, however, Ms Moser considered Condition 3(a) was too prescriptive. Condition 3(a) states:
3(a)	The existing vehicle crossing providing access to the land from Flynns Creek Road must be upgraded between the edge of the existing road pavement and the property boundary to comply with the vehicle crossing standards as set out in Latrobe City Council’s Standard Drawings LCC 306 and LCC 212 including provision of an all-weather sealed surface from the edge of the existing road pavement for a distance of six (6) metres toward the property boundary.
I note the above condition is suggested in the Council engineer’s referral notes. 
62	Ms Moser submits the addition of the words:
..or an alternative treatment to the satisfaction of the responsible authority 
will provide flexibility to respond to site conditions and the rural context of the land. I consider this request is reasonable and I have included the words in Condition 3(a).
Conclusion
63	For the reasons given above, the decision of the responsible authority is set aside.  A permit is granted subject to conditions.

Frank Dawson
Member			

Permit Notes

Although my order does not include the ‘Notes’ suggested by the Council, such advisory information may be included in the permit that the Council is directed to issue.

Appendix A – Permit Conditions

Permit Application No	2018/273	
Land	CA 8A1, Flynns Creek Road, Flynn	

What the permit allowS	
•	The use of the land for a dwelling in the Farming Zone - Schedule 1.
•	Buildings or works associated with a use in Section 2 of Clause 35.07-1.
•	The construction of a building and works on land in the Environmental Significance Overlay – Schedule 1.
In accordance with the endorsed plans.	

Conditions
1.	The use and development as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.
	
2.	Appropriate measures must be implemented throughout the construction stage of the development to rectify and/or minimise mud, crushed rock or other debris being carried onto public roads or footpaths from the subject land, to the satisfaction of the Responsible Authority.
	
3.	Before an Occupancy Permit is issued for the dwelling hereby permitted, or by such later date as is approved by the Responsible Authority in writing, the following works must be completed in accordance with the endorsed plans and to the satisfaction of the Responsible Authority:

a.	The existing vehicle crossing providing access to the land from Flynns Creek Road must be upgraded between the edge of the existing road pavement and the property boundary to comply with the vehicle crossing standards as set out in Latrobe City Council’s Standard Drawings LCC 306 and LCC 212 including provision of an all-weather sealed surface from the edge of the existing road pavement for a distance of six (6) metres toward the property boundary, or an alternative treatment to the satisfaction of the Responsible Authority.
b.	All stormwater discharging from the site, buildings, vehicle accessways and works must be discharged to a water tank, soak well or otherwise discharged so as not to cause erosion, flooding or nuisance to the subject or surrounding land to the satisfaction of the Responsible Authority.
c.	The areas provided within the property for vehicle access to the permitted dwelling and associated buildings and works, must be constructed and surfaced with concrete, gravel, crushed rock or hot mix asphalt so as to prevent mud or other loose material from being carried onto the road.	
4.	Sewage, sullage and other liquid wastes to arise from the development shall be treated and retained on site by a septic tank system in accordance with the requirements of the Environment Protection Act 1970, the Guidelines for Environmental Management: Code of Practice – Onsite Wastewater Management 891.4 (2016) and the Responsible Authority.
	
5.	Stormwater must be diverted away from effluent disposal fields to the satisfaction of the Responsible Authority.
	
6.	All waste water and liquid is to be contained and treated on site by a septic tank system or equivalent. The system must be at least 60 metres (Primary Treatment) or 30 metres (Secondary Treatment) from any watercourse and/or dam on the subject or neighbouring properties, and must meet the Guidelines for Environmental Management: Code of Practice – Onsite Wastewater Management 891.4 (2016).
	
7.	Prior to the commencement of buildings and works, an Application for a Permit to Install a septic tank system must be submitted and approved by the Responsible Authority prior to any installation.
	
8.	Once building works have commenced they must be completed to the satisfaction of the Responsible Authority.
	
9.	All buildings and works must be maintained in good order and appearance to the satisfaction of the Responsible Authority.

10.	This permit as it relates to use will expire if the use does not commence within four (4) years after the issue date of this permit.
In accordance with section 69 of the Planning and Environment Act 1987, an application may be submitted to the responsible authority for an extension of the period referred to in this condition.
	
11.	This permit will expire if one of the following circumstances applies:
(a)	The development is not started within two years of the issue date of this permit.
(b)	The development is not completed within four years of the issue date of this permit.
In accordance with section 69 of the Planning and Environment Act 1987, an application may be submitted to the responsible authority for an extension of the periods referred to in this condition.

– End of conditions –