VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P110/2022
Permit Application no.PlnApp21/190 	

Applicant	Angus Charles Michael Calder	

Responsible Authority	Rural City of Wangaratta Council	
Respondents	Wendy Hardy & Paul Hardy	
Referral Authorities	Goulburn Murray Water	
	North East Catchment Management Authority	

SUBJECT LAND	398 Markwood-Tarrawingee Road,
MILAWA VIC 3678	

HEARING TYPE	Hearing	

DATE OF HEARING	13 October 2022	

DATE OF ORDER	5 December 2022	

CITATION	Calder v Rural City of Wangaratta Council [2022] VCAT 1381	

Order
Permit granted
1	In application P110/2022 the decision of the responsible authority is affirmed. 
2	In planning permit application PLNApp21/190 a permit is granted and directed to be issued for the land at 398 Markwood-Tarrawingee Road, MILAWA VIC 3678 in accordance with the endorsed plans and the conditions set out in Appendix A.  The permit allows:
•	Construction of an agricultural building on the land in the Farming Zone and Land Subject to Inundation Overlay.

Peter Gaschk
Member			

Appearances
For Angus Charles Michael Calder	In person
	
For Rural City of Wangaratta Council	Clare Cowdrey, Town Planner	
For referral authority	No appearance	
For Wendy Hardy & Paul Hardy	Joanne Lardner, Counsel, by direct brief

Wendy & Paul Hardy in person	

Information
Description of proposal	The proposal is seeking retrospective approval for the construction of an agricultural building (roofed with open sides) over existing farming infrastructure (cattle yards and loading ramp) fronting Ivones Lane.  The building has approximate dimensions of 30.0m x 16.0m, with a smaller rear section having approximate dimensions of 12.0m x 6.0m, resulting in a combined roofed area of approximately 552sqm.  The roof has a downward slope from west to east.  The two roof sections are attached.  The structure is open to all sides.  The building has an overall height of 5.0m.  The structure and cattle yards are located on the front boundary to Ivones Lane.  	
Nature of proceeding	Application under section 82 of the Planning and Environment Act 1987 – to review the decision to grant a permit.	
Planning scheme	Wangaratta Planning Scheme (Scheme)	
Zone and overlays	Farming Zone (FZ)
Land Subject to Inundation Overlay (LSIO)
Floodway Overlay (FO)	
Permit requirements	Clause 35.07-4:
•	A permit is required to construct a building within 20.0m of a road or within 5.0m from a boundary.
•	A permit is required to construct a building within 100.0m of a waterway.
•	A permit is required to construct a building if located within 100.0m of a dwelling not in the same ownership.
Clause 44.04-2: A permit is required to construct a building or carry out works.	
Key scheme policies and provisions	Clauses 13.03-1S, 3.03-1L, 14.01-1S, 14.01-2S, 14.02-2S, 21.04, 22.01, 35.07, 44.04, 65.01 and 71.02. 	
Land description	The review site comprises two parcels of land under PC365017J, that form part of a larger 150ha farming enterprise (cattle grazing and pasture) operated by the respondents.  The respondent’s farming property is located on either side of Ivones Lane in Milawa (known as 398 Markwood-Tarrawingee Road, Milawa).  
Ivones Lane is a gravel formed, no-through road, that provides access from Markwood-Tarrawingee Road to both the respondent’s and applicant’s properties.  Ivones Lane is traversed by a small bridge east of the respondent’s dwelling and then terminates further east, at the applicant’s property. 
The agricultural building structure on the respondent’s property is positioned over existing cattle yards, located on an unconstructed and unfenced portion of designated Crown Land (government road reservation) that bisects the land parcel described under PC365017J.
Land in the wider area is used for agricultural farming purposes.  The area is notably traversed by existing water courses including the Ovens River, with scattered native vegetation also a key feature and character setting.  Properties in the area include a mix of farm dwellings and associated agricultural buildings and related infrastructure, generally positioned towards existing road frontages.	
Tribunal inspection	Undertaken unaccompanied on 6 October 2022.   	

  Reasons
What is this proceeding about?
1	This is an application for review by Angus Charles Michael Calder (applicant) against the decision of the Rural City of Wangaratta Council (council) to issue a Notice of Decision (NoD) to grant Planning Application No. PLNAPP21/190 (planning application) on 18 January 2022, for the construction of an open sided, agricultural building (the proposal) on the review site.  The applicant seeks review of council’s decision under s.82 of the Planning and Environment Act 1987 (the Act).
2	Council submits the proposal on the review site is consistent with the purposes of the FZ.  Conditional consent has been provided by the North East Catchment Management Authority and Goulburn Murray Water as referral authorities in relation to the LSIO and the declared special water supply catchment area that applies to the subject land and surrounds.  Referral Authority conditions have been included in the council’s NoD.
3	The respondents support the council’s decision and do not contest the proposed conditions on the NoD.  The respondents submit the proposal is an appropriate response to the strategic planning context and farming zoning of the review site and surrounds.  The respondents say the planning application seeks to regularise approval for the construction of the roofing structure over the cattle yards, which they say has had no adverse impact on the orderly planning and visual amenity of the rural area.  They say the roofed structure provides important protection to both animals and persons involved in the agricultural use of the review site.     
4	The respondents also rely on the affidavit of Mr Hardy (joint respondent), who says the agricultural building structure was built on the subject land between 2012 and 2013.  At the time of construction, Mr Hardy says he was unaware of planning approval requirements that applied to the building structure and were now seeking to rectify that situation through the current planning application. 
5	Mr Hardy’s affidavit also provides details as to his recollections of the existence of the cattle yards that are located immediately below the building structure.  He recalls an upgrade of the cattle yards from timber to steel that took place between 1999 and 2000.  
6	I also note further sworn affidavits tendered by the respondents. One from John N Muraca (former owner of 398 Markwood-Tarrawingee Road, Milawa) who says the cattle yards and loading race were existing on the property in October 1997.  A second from Christopher Roche (a livestock carrier who collected livestock from the Hardy property), who says the subject cattle yards and loading race have existed on the subject land for four decades.  
7	No questions were sought from the applicant or council on the affidavits.  They were formally tendered and relied upon by the respondents during the hearing.  I have found these to be useful as background information to this matter.
8	The applicant does not agree with the submissions of the council and respondents.  He submits the council has erred in assessing the merits of the proposal, by separating out consideration of the construction and use of the cattle yards located immediately under the roofed agricultural building.  He says in his amended Statement of Grounds:
Specifically, by seeking to disassociate the cattle yards and their associated loading facilities from RCoW Planning Application 21/190 the Responsible Authority has avoided giving consideration to:
• The adequacy of loading and unloading facilities and any associated amenity, traffic flow and road safety impacts.
• The impact the use or development will have on the current and future development and operation of the transport system.
• It is noted that this planning application is not a VicSmart application.
To achieve this the Responsible Authority has gone to extraordinary lengths to justify ignoring the inescapable and obvious engineering fact that the uprights of the roof structure form a critical element of the yards structure such that the construction of the yards could not have proceeded without the prior construction of the roof and are structurally inseparable. The claim therefore that the yards vastly predate the roof structure are clearly false and in any event are irrelevant since a/ both structures are built without authorization on an unused public road and b/ VCAT Red Dot precedent suggests the yards should be defined as a building and thus require a planning permit.
9	To address these concerns, the applicant submits the existing loading race and associated cattle yards, together with the roofed agricultural building, should be demolished and construction of a new race and associated building structure occur entirely on the respondent’s property.
10	I address this submission below.
Amended Planning Application
11	The original planning application lodged with council sought approval for a ‘Roof over existing cattle yards and extension to existing shed’ on the subject land.  The planning report accompanying the planning application stated the purpose of the application in the following terms:
Retrospective approval for the roofing of existing cattle yards at 398 Markwood-Tarrawingee Road and approval for a proposed extension to an existing hay shed and removal of a tree at 59 Ivones Lane.  
12	Significantly, on 13 October 2021, the application was formally amended by the respondents to remove the proposed hay shed and vegetation removal from the original lodged application.  Council confirmed this amendment took place in its submission.  The formal notification of the proposal was undertaken on the amended application material and plans. 
13	Council acknowledges the use of the cattle yards and loading ramp, has at times, impacted the use of Ivones Lane.  However, it says the consideration of any traffic impact issues arising from the use of these cattle yards and loading ramp are not relevant to this planning permit application.  It says the planning application only deals with a roofing structure to cover existing farming infrastructure, being the cattle yards and loading ramp.  It says there are ‘other mechanisms such as the Local Government Act 2020 and the Road Management Act 2004 to ensure compliance with road laws (with a view to preventing road blockages).’
14	The respondents accept the cattle yards are a ‘structure’ for the purposes of the definition of ‘building’ in the Act.  However, they submit the planning application is not seeking approval for the use or construction of the cattle yards.  The respondents point out the planning application under review ‘relates solely to that (part of) the “building” constituted by the roofing structure.’  
15	The respondents also note this matter was considered by Member Djohan in her Order dated 23 May 2022, arising from a Practice Day Hearing on 6 May 2022.  
16	The Practice Day hearing considered an application by the council, seeking summary dismissal of the review proceeding now before this Tribunal.  Member Djohan’s Order included:
(1)  The responsible authority’s application of 24 February 2022 for summary dismissal of the review application is refused.
(2)  By 15 June 2022, the applicant must lodge with the Tribunal, and copy all parties, amended grounds of review.
(3)  By 29 June 2022, the responsible authority and the respondents may provide an amended statement of grounds.
17	Relevant to the matter before me, Member Djohan noted the use of the subject land for the purposes of grazing animal production in the Farming Zone did not require planning permission under the Scheme.  At paragraphs 10-12 of her Order, Member Djohan further remarked:
(10)  It is clear on a plain reading of the reasons given, that through the review application the applicant seeks to ventilate issues arising from the alleged previous use of the livestock loading race, the alleged conduct of the respondents and allegations against Council regarding its handling of complaints made by the applicant regarding same.
(11)  Other than noting that the building in question was constructed ‘illegally’, the reasons given by the applicant bear no relationship to the subject of the permit application. The respondents do not dispute that the shelter structure was constructed without permission, and it is a fact on which all parties agree.
(12)  The application for review does not raise any grounds against the approval of the shelter structure, or any considerations that may be relevant to the grant of a permit for the construction of the shelter structure on the land arising generally under the scheme.
(Tribunal emphasis added)
18	At paragraphs 21 and 22 of her Order, Member Djohan further remarked:
(21)  Because there is a factual dispute between the parties and the applicant takes issue with the lack of setback of the shelter structure from the boundary of the land and the road, I am not satisfied that it is appropriate to summarily dismiss the review application.
(22)  I am satisfied that all of the reasons given at item 16 of the application for review (extracted above) and a very large part of the applicant’s written submission are irrelevant to the Tribunal’s review of Council’s decision.
(Tribunal emphasis added)
19	It is clear from the remarks I have underlined above, that Member Djohan was particularly concerned the applicant was seeking to introduce matters that were not relevant to the s.82 review proceeding.  It was for this reason her Order required the applicant to prepare and lodge an amended Statement of Grounds.
20	The applicant submitted a revised Statement of Grounds which I have referred to above.  The amended grounds were also circulated to the other parties prior to the hearing.  
21	In preliminary matters, the respondents raised concerns that the amended Statement of Grounds continued to raise similar matters on the status and use of the cattle yards.  They submitted that Member Djohan had considered these were not relevant to the s.82 review proceeding.  
22	The applicant maintained the status of the cattle yards was a relevant matter before the Tribunal.  He contended the cattle yards had been built around a similar time as the roofed building structure.  As such, he considered the cattle yards required planning approval.  He did not agree with submissions from council or the respondents the cattle yards had existing use rights and referred to photos that formed part of his submissions to support this.  No other evidence was provided by the applicant in support of this submission.  
23	I found the photos of the applicant were unhelpful in establishing existing use rights.  In any event, I advised the applicant this matter was not relevant to the review matter before me and did not assist me in determining the merits of the amended proposal.  I instructed him to confine his submissions to matters of direct relevance to the sole approval sought for the roofed building structure on the subject land.  
24	In my view, if the applicant considered the use and construction of the cattle yards required planning permission in the FZ and LSIO, then it was open for him to seek a declaration from the Tribunal.  I note that both the council and respondents submit the cattle yards do not require planning approval and the construction of the roofed building structure is the only matter before the Tribunal for determination.  
25	For the reasons I have outlined above, I agree that the construction status and use of the cattle yards is not relevant to my consideration of this review proceeding.  I therefore make no findings in respect to the cattle yards.
26	Despite the continued attempts by the applicant to introduce the construction and use of the cattle yards into this review proceeding, it is simply not a matter before this Tribunal.  I find the applicant’s submission is misdirected. 
27	As I outlined above, I am satisfied the amended planning application has been confined to seeking planning approval to regularise the construction of the roofing structure over the existing cattle yards.  It is not seeking any planning approval for the use and construction of the cattle yards.  
28	Considering my findings above, what needs to be determined in this review proceeding is whether the proposal is an acceptable planning outcome under FZ and LSIO and relevant associated provisions of the Scheme.  This is now the task I turn to below.
What are the key issues?
29	In determining the key issues arising from this proposal, I must decide whether to grant a permit and, if so, what conditions should apply to a permit.  I must address whether the proposal will produce an acceptable outcome, having regard to the relevant purposes, objectives and supporting policy provisions that apply to this matter under the Scheme.
30	Clause 71.02-3 also requires the decision-maker (in this case the Tribunal) to integrate the range of policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit and sustainable development.
31	Based on the submissions, supporting material, affidavits and supporting documents of the parties, I consider the key issue in dispute is confined to the following consideration:
•	Does the proposal provide a satisfactory planning outcome in the Farming Zone and Land Subject to Inundation Overlay?
32	Having considered the submissions, supporting material, assisted by my site inspection, I find the proposed development will result in an acceptable planning outcome sought under the relevant zone, overlay and associated Scheme provisions.  I affirm the decision of the responsible authority and will direct a permit issue subject to the permit conditions included in Appendix A.
33	My reasons follow.
PLANNING POLICY FRAMEWORK AND PHYSICAL CONTEXT
Planning Policy Framework (PPF)
34	I have set out above the relevant PPF that applies to this proposal.  I have considered these policy settings in my assessment.  
35	Key flood related and water quality policies in the Scheme are addressed at clauses 13.03-1S, 13.01-1L and 14.02-2S.  Relevantly, new development proposed in identified flood prone areas should not introduce or pose risks to life or property.
36	Clauses 14.01-1S and 14.01-2S also seek to protect agricultural land from inappropriate and incompatible development.  These policies encourage development in rural areas that support ongoing agricultural production.
Zone and Overlay
37	As stated above, the subject land is within the Farming Zone.  Relevant purposes of the zone seek to:
•	Provide for the use of land for agriculture.
•	Encourage the retention of productive agricultural land.
•	Provide for the use and development of land for the specific purposes identified in a schedule to this zone.
38	I am satisfied the proposal relates to and supports the existing agricultural activities undertaken on the land.  In addition, no productive agricultural land will be adversely impacted or lost by the proposal.
39	I also note under clause 35.07-6, Decision Guidelines – Design and Siting Issues, amongst other matters, requires consideration to locate buildings in one area to avoid any adverse impacts on surrounding agricultural uses.  The proposal responds appropriately to this guideline.
40	The review site is also affected by the LSIO.  Key purposes under the overlay include:
•	To ensure that development maintains the free passage and temporary storage of floodwaters, minimises flood damage, responds to the flood hazard and local drainage conditions and will not cause any significant rise in flood level or flow velocity.
•	To minimise the potential flood risk to life, health and safety associated with development. 
•	To protect water quality and waterways as natural resources by managing urban stormwater, protecting water supply catchment areas, and managing saline discharges to minimise the risks to the environmental quality of water and groundwater.
•	To ensure that development maintains or improves river, marine, coastal and wetland health, waterway protection and floodplain health.
41	Decision guidelines at clause 44.04-8 direct consideration be given to:
•	Any comments from the relevant floodplain management authority.
•	The existing use and development of the land.
The proposal and rural setting
42	An aerial image of the review site showing the location of the constructed agricultural building and its physical relationship to the respondent’s dwelling is provided below.

Figure 1: Aerial Image of review site and immediate surrounds. Source - Council Submission
43	Council’s delegate report notes the setting of the cattle stock yard has an irregular configuration, being an inverted and reversed L shape with the widest portion of the structure located along the site’s front boundary.  My inspection confirmed this layout.
44	Photographs of the agricultural building structure as shown in the council’s submission is also provided below.  Image 2 usefully depicts the outline of the constructed agricultural building structure that forms the amended proposal before the Tribunal.

Figure 2: Photographs of agricultural building, Ivones Lane, Milawa – Source Council Submission
45	Further details of the site and surrounds is provided in the Information section above.  The parties also referred to existing conditions in their submissions.  My site inspection confirmed these conditions and physical setting of the agricultural building and cattle stockyards beneath.
Key issue
Does the proposal provide a satisfactory response in the Farming Zone and Land Subject to Inundation Overlay?
46	Having considered the submissions of the parties, assisted by my site inspection, I find the proposal is consistent with key PPF objectives noted above and the key purposes of the FZ.  
47	The building structure will enable the continued agricultural use of the subject land, as well as addressing important shelter needs for animals that are managed in the cattle yards.  This outcome is also consistent with sustainable farming practices sought under the FZ.
48	The building structure is also open on all sides.  Visually it will not obstruct any significant view lines in this area.  Nor will the building obstruct longer range views as it is an open sided structure.  The materials used for the roofing structure is sympathetic and consistent with those found on other agricultural out buildings in the area.  
49	The building also enables unobstructed water flow sought in a declared water catchment area and designated floodplain.  I am satisfied the development will not adversely impact the function of the floodplain or introduce additional risks to life or property.
50	I am also satisfied the proposal will not introduce any additional wastewater on site, nor increase significant run off that will adversely impact water quality and land flows in the declared water catchment area.
51	The applicant raised some concerns regarding the zero-lot boundary set back of the building to Ivones Lane.  He considered this design approach was inappropriate.  
52	I do not agree with this submission, noting there are other examples of similar zero boundary treatments of these types of building structures in the area.
53	Regarding floodplain management, I note council referred the proposal to North East Catchment Management Authority and Goulburn Murray Water as the relevant referral authorities under the LSIO.  Both authorities have consented to the proposal subject to conditions.  These conditions have been included in council’s draft permit conditions.
54	The respondents also noted the proposal is exempt from notice and decision requirements and the review rights of the Act under the LSIO.  I agree with this submission but nothing of significance turns on this.  As I noted above, referral authorities with expertise in these matters have provided comment on relevant matters around floodplain management and water quality and are satisfied with the proposal. 
55	I consider the referral authority conditions are appropriate and I have retained them on the permit to issue without change.
56	The respondents also referred me to Tribunal decisions regarding the ambit of the Tribunal’s discretion in this matter.  I accept the respondent’s submissions in respect to the review rights exempted in the LSIO.  It is not necessary for me to make any further findings on this.
57	I am satisfied the proposal will compliment and support the ongoing agricultural production that occurs on the subject land.  I agree with the respondents and council that the proposal is consistent with the policy and physical settings I have described above.  
58	Subject to the permit conditions contained in Appendix A to this decision, I am satisfied the proposal will provide for the orderly and proper planning of the area. 
What conditions are appropriate?
59	Draft conditions were circulated by the council and discussed with the parties.  The applicant accepts the draft conditions.  Council noted some minor editing was required to draft condition 2.  The council and respondents agreed the preamble should remove reference to the word ‘retrospective’.  I agree with the changes to the permit preamble and condition 2.
60	I have also made some minor edits that do not change the intent or content of the conditions.
Conclusion
61	For the reasons given above, the decision of the responsible authority is affirmed.  A permit is granted subject to conditions as set out in Appendix A to this decision.

Peter Gaschk
Member			

Appendix A – Permit Conditions

Permit Application No	PLNApp21/190	
Land	398 Markwood-Tarrawingee Road,
MILAWA VIC 3678	

What the permit allowS	
In accordance with the endorsed plans:
•	Construction of an agricultural building on land in the Farming Zone and Land Subject to Inundation Overlay.	

Conditions
Endorsed plans
1	The development layout as shown on the endorsed plan/s must not be altered without the written consent of the responsible authority.
Development expiry
2	This permit will expire if any of the following circumstances applies:
(a)	The development is not started within two years of the date of this permit.
(b)	The development is not completed within four years of the 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.
GMW condition
3	All construction and ongoing activities must be in accordance with sediment control principles outlined in ‘Construction Techniques for Sediment Pollution Control’ (EPA, 1991).
NECMA condition
4	The buildings must not be used for the storage of chemicals, oil, fuel, grease, waste or other potential pollutants.  

– End of conditions –