Municipal Association of Victoria Rural Land Use Planning Forum Dwellings in the Farming Zone – Understanding the Nexus

1. Municipal Association of Victoria Rural Land Use Planning Forum Dwellings in the Farming Zone – Understanding the Nexus John Rantino | Partner 4 November 2011

2. Purpose of the Farming Zone To provide for the use of land for agriculture. To encourage the retention of productive agricultural land. To ensure that non-agricultural uses, particularly dwellings, do not adversely affect the use of land for agriculture. To encourage use and development of land based on comprehensive and sustainable land management practices and infrastructure provision. To protect and enhance natural resources and the biodiversity of the area.

3. Dwelling use requires no permit if Only dwelling on the lot, and The lot is at least the area specified in the schedule (or 40 hectares if not specified) Meets clause 35.07-2

4. Comparison of Lot sizes Mornington Peninsula: 0.4 hectares Greater Dandenong: 4 – 6 - 40 hectares Frankston: 1 hectare Horsham: 10 – 16 – 60 hectares South Gippsland: 40 hectares

5. Clause 35.07-2 Requirements Access via an all-weather road and adequate to accommodate emergency vehicles. Connected to a reticulated sewerage system or if not available, the waste water is treated and retained on-site in accordance with State Environment Protection Policy (Waters of Victoria). Connected to a reticulated potable water supply or have an alternative potable water supply with adequate storage for domestic use as well as for fire fighting purposes. Connected to a reticulated electricity supply or have an alternative energy source.

6. Additional application requirement Application to use a lot for a dwelling must be accompanied by a written statement which explains how the proposed dwelling responds to the decision guidelines for dwellings in the zone.

7. The ‘dwelling issues’ • Whether the dwelling will result in the loss or fragmentation of productive agricultural land. • Whether the dwelling is reasonably required for the operation of the agricultural activity conducted on the 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.

8. Additional decision guidelines General issues Agricultural issues Environmental issues Design and siting issues Planning policies

9. Permit is required to construct or alter dwelling unless the dwelling use is as-of-right alteration or extension to dwelling if no more than the area specified in the schedule (or 50 square metres if not specified)

10. Compare farming zone with.. Rural conservation zone No minimum lot size No dwelling issues Green wedge zone No minimum lot size No dwelling issues

11. Dwelling use incorporates no “in conjunction with” condition Group accommodation Residential hotel Restaurant must be “in conjunction with Agriculture, Outdoor, recreation facility, Rural industry or Winery”

12. Reasonably required for the operation of the agricultural activity “A clear test about when a dwelling is ‘reasonably required’ is yet to emerge. In some cases, the Tribunal has held that the second dwelling must contribute to achieving the purposes of the FZ rather than essential to the support the operation of the agricultural activity. In other cases, the Tribunal has held that the second dwelling must facilitate or enhance the ongoing primary use of the land for productive, sustainable agriculture. In my view, a second dwelling in a FZ must make a significant contribution to both the FZ purposes and the ongoing productive, sustainable agriculture.” Hossack v Glenelg Shire Council [2011] VCAT 1412

13. Reasonably required for the operation of the agricultural activity cont… “I must consider that the dwelling could be used by non-farm labour (eg visitors) for most of the year.” Hossack v Glenelg Shire Council [2011] VCAT 1412

14. Incremental impact “In particular the Tribunal has commented that the impact of permitting dwellings on small rural lots in the Farming zone is incremental in nature and that care must be exercised not to lose sight of the cumulative effect of each dwelling when considering applications for individual proposals. The failure to do so leads inevitably to the circumstances where the proliferation of dwellings on small lots changes the character of a locality to rural residential and productive agricultural land is lost forever” [Rehn v Mitchell Shire Council [2011] VCAT 229]

15. Consistent with the zone purpose “There are circumstances where a permit may be granted for a dwelling on small lots in the Farming zone where the dwelling is not reasonably required for an agricultural activity conducted on the land. In those circumstances the Council and on review the Tribunal must be satisfied that the proposal is consistent with the achievement of the zone purpose and decision guidelines.” [Rehn v Mitchell Shire Council [2011] VCAT 229]

16. “Horse has bolted” “The grant of a permit in these circumstances often requires a judgement to be made on the basis that a locality has already been converted to a primarily residential area, and in terms of preventing the fragmentation and loss of productive agricultural land the construction of another dwelling has no substantial bearing on the achievement of policies and objectives for the Farming Zone . These circumstances are often referred to as the “horse has bolted” scenario.” [Rehn v Mitchell Shire Council [2011] VCAT 229]

17. Examples of where permits have been granted Redl v Wangaratta Rural City Council [2011] VCAT 919 Carnegie v Baw Baw Shire Council [2011] VCAT 1253 Weaven v Greater Geelong City Council [2011] VCAT 1092

18. Use of section 173 agreements “The concern in respect of the use and potential subdivision of the second dwelling can be managed I believe through a section 173 agreement. Such a mechanism I believe would discourage any non genuine development of second dwellings from proceeding. Thus the issue of precedent is not relevant in this consideration.” [Hill v Colac Otway Shire Council [2007] VCAT 1097]

19. John Rantino | Partner Direct 61 3 9288 0694 john.rantino@maddocks.com.au