VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
  planning and environment DIVISION
planning and environment LIST	vcat reference No. P2096/2019
Permit Application no. Pln 138/2017.A	
CATCHWORDS	
Three lot boundary realignment, application to amend planning permit condition which requires a Section 173 Agreement under the Planning and Environment Act 1987 to prevent the construction of a dwelling on one of the lots     	

APPLICANT	Ross Mason	
responsible authority	Campaspe Shire Council	
SUBJECT LAND	9178 Murray Valley Highway, Echuca Village	
WHERE HELD	Melbourne	
BEFORE	K Birtwistle, Member	
HEARING TYPE	Hearing	
DATE OF HEARING	21 October 2020   	
DATE OF ORDER	18 November 2020	
CITATION	Mason v Campaspe SC [2020] VCAT 1287   	

Order
1	In application P2096/2019 the decision of the responsible authority is set aside.
2	In planning permit application Pln138/2017.A an amended permit is granted and directed to be issued for the land at 9178 Murray Valley Highway, Echuca Village in accordance with the endorsed plans and the conditions set out in Appendix A.  The permit allows:
•	Boundary realignment into three lots

K Birtwistle 
Member			

Appearances
For Ross Mason	Mr P Hill	
For Campaspe Shire Council	Ms A Wilkie, town planner	

Information
Description of proposal	The permit allows the boundary realignment of the land into three lots.  The application seeks to remove a condition on the permit which requires entering into a Section 173 Agreement to prohibit a dwelling from being constructed on one of the three lots so created. 	
Nature of proceeding	Application under section 77 of the Planning and Environment Act 1987 – to review the refusal to amend a permit. 	
Planning scheme	Campaspe Planning Scheme	
Zone and overlays	Farming Zone – Schedule 2 (FZ2)
Environmental Significance Overlay – Schedule 1 (ESO1)
Flooding Overlay (FO)
Land Subject to Inundation Overlay (LSIO)
Adjoins a Road Zone – Category 1 (RDZ1)	
Permit requirements	Clause 35.07-3 – Subdivision of land less than the minimum lot size in the FZ2
Clause 42.01-2 – Subdivision of land in the ESO1 
Clause 44.03-2 – Subdivision of land in the FO  
Clause 44.04-2 – Subdivision of land in the LSIO	
Land description	The site abuts the Murray Valley Highway on its western boundary, with Brown Road to its north.  There are two dwellings on the opposite side of Brown Road. To the east of the property is the continuation of the Goulburn Murray Water drain, with a dwelling and outbuildings associated with agriculture on the opposite side of the drain. To the south east is a dwelling associated with an agricultural use.   Opposite the site on the Murray Valley Highway is Low Density Residential Zoned land that contains dwellings, outbuilding, etc. 	

Reasons
What is this proceeding about?
1	In August 2017, Campaspe Shire Council issued a planning permit for the boundary alignment of the land (which comprised three separate titles) into three lots.  The permit contained a number of conditions that were not opposed by the permit applicant at the time the permit was issued.  The plan of subdivision has been certified by the Council. 
2	Condition 2 on the planning permit states:
2.	Prior to the issue of a Statement of Compliance for the subdivision under the Subdivision Act 1988, the owner of the land must enter into an agreement with the responsible authority, pursuant to Section 173 of the Planning and Environment Act 1987. The agreement must provide that:
a)	The further subdivision of any lot created is prevented other than in accordance with the minimum lot size in the zone.
b)	The construction of a dwelling is prevented on Lot I on the endorsed plan other than in accordance with the minimum lot size in the zone; 
c)	The Owner acknowledges and accepts that the possibility of nuisance from adjoining or nearby agricultural operations may occur. The possible off site impacts include but are not limited to (dust, noise, odour, waste, vibration, soot, smoke or the presence of vermin), from animal husbandry, animal waste, spray drift, agricultural machinery use, pumps, trucks and associated hours of operation. In acknowledging the existence of the agricultural operations being conducted from adjoining or nearby land the owner shall not make complaint against lawful agricultural activities on the adjoining or nearby land. 
The Section 173 agreement is to be prepared by the responsible authority. The responsible authority will undertake to have the agreement prepared upon receiving a written request from the owner All costs associated with the preparation and registration of the agreement must be borne by the applicant/owner and paid prior to the execution and registration of the agreement.
3	In July 2019, the permit applicant applied to amend the planning permit to delete Condition 2 on the permit, as they wished to be able to sell the property to another party who may wish to develop a dwelling on the undeveloped lot.  The Council determined to refuse to grant an amended planning permit for the proposed development. The permit applicant has requested the Tribunal to review Council’s decision.
4	Council refused the proposal on the following grounds:
•	The proposal is contrary to Planning Policy Framework of Clause 14.01-1S Protection of agricultural land, Clause 14.01-2S Sustainable agricultural land use, and Clause 14.01-2R Agricultural productivity – Loddon Mallee North of the Campaspe Planning Scheme. 
•	The amendment is contrary to Local Planning Policy Framework of Clause 21.05-1 Natural Resource Management of the Campaspe Planning Scheme. 
•	The amendment is contrary to the objectives and decision guidelines of Clause 22.01 Agricultural Policy of the Campaspe Planning Scheme. 
•	The proposal is contrary to the relevant decision guidelines of Clause 35.07 Farming Zone of the Campaspe Planning Scheme. 
•	The amendment is contrary to the original intent of why the planning permit was issued. 
•	The amendment and justification provided illustrates that the original application was falsely represented in order to obtain a permit.
5	I must decide whether an amended permit should be granted and, if so, what conditions should be applied. Having considered all submissions presented with regard to the applicable policies and provisions of the Campaspe Planning Scheme, I have decided to set aside the decision of the responsible authority and direct that an amended permit be granted. 
6	My reasons follow.
what does the planning scheme say?
7	Clause 14.01-1S relates to the protection of agricultural land.  It seeks to protect the state’s agricultural base by preserving productive farmland.  Amongst other objectives, it seeks to:
Protect productive agricultural land from unplanned loss due to permanent changes in land use. 
Prevent inappropriately dispersed urban activities in rural areas.  
Protect strategically important agricultural and primary production land from incompatible uses. 
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.
8	Clause 21.05 is Council’s Natural Resource Management policy.  It notes:
It is increasingly evident that prospective agricultural investment is jeopardised, deterred, or lost by land use and development that has the potential to compromise the scale and location of such investment. In particular, agricultural investment is far less likely where the ownership of land is fragmented with housing dispersed throughout. To address this, a Regional Rural Land Use Strategy (2008) identified various categories of farming areas, and recommended different subdivision and minimum lot size provisions for dwellings in each category. Important principles arising from the strategy that have been applied in the rural areas are: 
•	The minimum subdivision size is always to be less than or equal to the minimum dwelling size in order to avoid expectations and perceptions that there will be an automatic entitlement to erect a dwelling on all newly created lots in the Farming Zone. 
•	Small lot subdivisions should not create any additional entitlements for a dwelling, nor should they create an opportunity for a dwelling without a planning permit. 
•	Unplanned rural living should not displace agriculture or prevent flexibility for farm businesses. 
9	Clause 22.01 is Council’s Agricultural Policy.  It addresses two separate issues, which arise in the Farming Zone; being rural subdivision and rural dwellings. It notes that the process of farm consolidation is considered fundamental to the long term viability of the agricultural base of the Shire. It discourages the fragmentation of existing farms as fragmentation can lead to rural living opportunities, which compromise farming purposes by increasing land prices and introducing residents with ‘non-farming’ amenity expectations. 
10	The policy notes that unplanned rural living results in agricultural land being taken out of production. The policy objectives are:
•	To limit the further fragmentation of rural land by subdivision. 
•	To ensure that lots resulting from subdivision are of a sufficient size to be of benefit to agricultural production. 
•	To encourage the consolidation of rural land. 
•	To provide for the incremental growth of farming enterprises. 
•	To provide for small lot subdivision only where there are positive agricultural outcomes and where no additional dwelling entitlements are created under the minimum subdivision area. 
•	To discourage new dwellings unless it can be demonstrated that it is required for the agricultural use of the land.
11	It is policy to: 
•	Discourage small lot subdivisions except where: 
o	Restructure is an outcome; and 
o	No new opportunities for additional dwellings below the minimum subdivision area specified in the Schedules to the Farming Zone are created; and 
o	The impact on neighbours and existing or potential agricultural use of nearby land is minimised. 
•	Require the landowner to enter into an agreement under Section 173 of the Act, which: 
o	Prevents the construction of a dwelling on the residual lot unless, when combined with other land, the area satisfies the minimum area for which no permit is required to use land for a dwelling in the Farming Zone; 
o	Prevents the further subdivision of any lot created other than in accordance with the minimum area for which no permit is required to use land for a dwelling in the Farming Zone; and 
o	Acknowledges the possible off-site impacts of adjoining or nearby agricultural activities. 
12	It is policy to assess proposals against the following criteria: 
•	The lot containing the dwelling and associated infrastructure is at least 0.6 hectares in area but no greater than 2 hectares in area unless there is a need for a larger parcel to take account of natural or public infrastructure or to provide a farm boundary configuration that supports efficient agricultural practices.
13	A permit is required to subdivide land pursuant to Clause 35.07-3.  A permit may be granted to create smaller lots (smaller than 40ha in FZ2) if the subdivision is the re-subdivision of existing lots and the number of lots is not increased.  In this case, the land originally comprised there separately transferrable titles, and the permit authorises a boundary realignment of these lots to create three new separately transferrable titles.  Two titles have existing dwellings, while Lot 1 is undeveloped agricultural land currently managed in association with the adjoining land use.
14	Pursuant to Clause 65.02, before deciding on an application to subdivide land, the responsible authority must also consider, as appropriate: 
•	The suitability of the land for subdivision. 
•	The existing use and possible future development of the land and nearby land. 
•	The availability of subdivided land in the locality, and the need for the creation of further lots. 
•	The subdivision pattern having regard to the physical characteristics of the land including existing vegetation. 
•	The area and dimensions of each lot in the subdivision. 
•	If the land is not sewered and no provision has been made for the land to be sewered, the capacity of the land to treat and retain all sewage and sullage within the boundaries of each lot. 
what does the permit allow?
15	The original planning permit was issued for a boundary re-alignment of three existing separately transferable Certificates of Title, into three different lot configurations.
16	Lot 1 has an area of 7.103ha irregular in shape with access via an existing vehicle crossover onto Murray Valley Highway. Lot 2 has an area of 2.075ha and contains an existing dwelling with access via an existing vehicle crossover on Murray Valley Highway. Lot 3 has an area of 2041sqm which contains an existing dwelling and outbuilding with an existing vehicle crossover onto Murray Valley Highway.
17	The matter in dispute essentially relates to Lot 1, which is devoid of an existing dwelling (unlike the other two lots).
18	The amendment application essentially focused on Condition 2b) of the planning permit which states:
The construction of a dwelling is prevented on Lot 1 on the endorsed plan other than in accordance with the minimum lot size in the zone.
19	The lot, being 7.103 ha in area does not meet the minimum lot size in the FZ2, being 40 hectares.  A planning permit is therefore required to allow a dwelling to be constructed on the land.
what do the parties say?
20	It is Council’s opinion that the amendment to remove the condition is likely to pose a threat to the agricultural productive capacity in the area as it could result in a future application for a dwelling on the land contrary to the original subdivision assessment and any such approval would be unlikely to result in a positive agricultural outcome.  They say that allowing the removal of the agreement would provide another opportunity for an application to be made for a dwelling contrary to ensuring land will be at an agricultural value not inflated.
21	The Council says that despite what the applicant asserts, in its view the justification provided to amend the planning permit is not relevant to the decision guidelines and objectives of Clause 22.01.  They say that the request to amend the permit indicates an intent to construct a dwelling on the vacant Lot 1, which is contrary to policy and the original intent of why the permit was issued.
22	The applicant says that the amendment is sought as the owner wishes to retire and they wish to secure the maximum value for the land when sold. He says that the permit provides for no more than the realignment of the boundaries of the (3) existing holdings, moreover there is no proposal for a change in use or for any tangible development on any of the subject lots. 
23	It is the applicant's submission that due to subject lots being in the FZ2 and significantly less the minimum required size that the planning scheme precludes the development of any subsequent dwelling on the lots without a the responsible authority first issuing a planning permit.
24	The applicant’s submission acknowledges:
The scheme speaks volumes of preventing the fragmentation and loss of productive agricultural land through inappropriate small lot subdivision and preventing dwellings that have no connection with genuine agricultural pursuits. The recording of a 173 agreement to prevent the subdivision or the construction of any further dwellings on either lot 1 & 2 is unnecessary, in there are existing mechanism available to the responsible authority to restrict such use or development within the zone and scheme provisions.  Any application to subdivide or erect further dwellings on any of the lots would be clearly contrary to the policy objectives of the scheme, providing either the responsible authority or the Tribunal substantive grounds on which to refuse such use or development.
25	The applicant holds that in respect to the narrow scope of what the permit applicant sought by the permit, combined with the fact that it does not provide for any change in the use or development of the land, that the imposition of a Section 173 Agreement is onerous, in that the responsible authority has a raft of policy tools at its disposal to base a decision on which to refuse a permit.
what are my findings?
26	It is clear that Council’s policy framework seeks to prevent inappropriate subdivision and development of dwellings on lots below the minimum subdivision size in the Farming Zone.  The applicant acknowledges this position.  The uncontrolled and inappropriate subdivision of land in the Farming Zone, and construction of dwellings on lots less than the prescribed minimum represent a real risk to agricultural productivity.  These are matters that require serious consideration, and are particularly challenging where previous inappropriate subdivisions have created smaller than preferred lot sizes, as is the case in this instance.
27	The matter before me does not relate to the re-subdivision of the land or the development of a dwelling on the land.  In this instance, Council has supported the realignment of three existing lots (that it agrees could have been separately sold) into three newly configured lots. Council agrees that a planning application could have been lodged to construct additional dwellings on the original lots. 
28	The boundary realignment approved maintains this lot yield. It did not increase the number of lots on which a dwelling application could be made.  It is largely on this basis that I am persuaded that the disputed condition should be removed.
29	No additional dwellings can be constructed on any of the three newly configured lots without the benefit of a planning permit.  While I understand Council’s intent is to prevent any future such dwelling applications through the application of a Section 173 Agreement, there are other mechanism available to the responsible authority to regulate the construction of any subsequent dwelling on any lot including by refusing to issue any such permits. 
30	As was made clear to the applicant’s representative in the hearing, based on Council’s policy framework, it is highly unlikely that there will be any Council support for the construction of a new dwelling on any of the lots created by the permit.  The decision I make to remove the disputed condition in no way should infer that a new dwelling on the lots is likely or supportable, in the context of the planning scheme provisions that apply to the land.  The applicant’s own submission acknowledges that any application to erect further dwellings on any of the lots would be clearly contrary to the policy objectives of the scheme
31	Having determined that Condition 2b) should be deleted, it flows from this that Conditions 2a) and 2c) should be similarly deleted.  Condition 2a) merely reflects that subdivision cannot occur below what the planning scheme provides, which self-evidently is not required to exist as a registration on a certificate of title.  Condition 2c) is imposed to acknowledge that future owners of the lots created accept the possible nuisance emanating from adjoining or nearby land.  As the application is for boundary realignment only (ie. does not authorise the occupation of the land for a dwelling) and the land is in a FZ2 in which likely occupants are aware of the lands zoning and the nature of land-uses in the vicinity, I agree that this condition is unnecessary and should also be deleted.
conclusion
32	For the reasons explained above, the decision of the responsible authority is set aside.  An amended permit is issued.     

K Birtwistle 
Member			

Appendix A – Permit Conditions

Permit Application No:	Pln138/2017.A	
Land:	9178 Murray Valley Highway, Echuca Village	

What the permit allows	
In accordance with the endorsed plans:
•	Boundary realignment of the land into three lots	

Conditions:
Layout not altered 
1	The subdivision as shown on the endorsed plans must not be altered without the written consent of the responsible authority.
Independent Drainage 
2	Before a Statement of Compliance Is issued for the subdivision under the Subdivision Act 1998, plans must be submitted to and approved by the responsible authority. When approved, the plans will be endorsed and then form part of the permit.  The plans must be drawn to scale with dimensions. The plans must include: 
(a)	Direction of stormwater run off; 
(b)	A point of discharge for each lot; 
(c)	Independent drainage for each lot; 
(d)	Documentation must be provided demonstrating approval from the relevant authority for the point of discharge: 
(e)	Incorporation of water sensitive urban design and be designed in accordance with “Urban Stormwater Best Practice Environmental Management Guidelines” 1999.
The plans must be to the satisfaction of the responsible authority.
3	Authority requirements 
(a)	The owner of the land must enter into agreements with the relevant authorities for the provision of water supply, drainage, sewerage facilities and electricity and gas services to each lot shown no the endorsed plan in accordance with the authorities requirements and relevant legislation at the time.
(b)	All existing and proposed easements and sites for existing and required utility services and roads must be set aside in the plan of subdivision submitted for certification in favour of the relevant authority for which the easement or site is to be created. 
(c)	The plan of subdivision submitted for certification under the Subdivision Act 1988 must be referred to the relevant authority in accordance with Section 8 of that Act. 
4	Wastewater Disposal 
All wastewater must be appropriately treated and disposed of within the proposed allotment boundaries. 
5	Rural Vehicle Crossing Location 
(a)	Any new or otherwise vehicular entrances to the subject land from the road shall be constructed at a location and of a size and standard satisfactory to the Responsible Authority. The vehicle crossing(s) must be constructed at the applicant's expense to provide ingress and egress to the site to the satisfaction of the Responsible Authority. 
(b)	The crossover must be no less than 4.9 metres in length and include a pipe of a diameter suitable to accommodate the actual volume/flow (having a minimum diameter of (375) mm). Culverts located in the clear zone shalt be installed with trafficable end walls (refer VicRoads standard drawing SD 1991). The final location of the crossing is to be approved by the responsible authority. 
(c)	All bridges and crossings shall be designed to carry a vehicle weighing at least 15 tonnes and be at least three metres in width.
6	Time for Starting and Completing a Subdivision 
This permit will expire if one of the following circumstances applies:
a)	The plan of subdivision is not Certified under the Subdivision Act 1988 within two (2) years of the dale of this permit. 
b)	The registration of the plan of subdivision is not completed within live (5) years of the date of Certification under the Subdivision Act 1988. 
The Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires or within six (6) months afterwards. Prior to approval being given for extension the Responsible Authority may require the review and re-submission of Plans, Computations and other relevant information to accord with current requirements, Acts and Regulations, Codes of Practice and Australian Standards.