VCAT rules against permit for house
A three lot subdivision of farming land at Trafalgar has been upheld by the Victorian Civil and Administrative Tribunal but the tribunal went against Baw Baw Shire’s decision to allow a house on one of the lots.
Although supporting the three lots subdivision of the Rogers Rd farm, VCAT did not allow the smallest 4.9 hectare lot to be used for a house.
VCAT heard the landowner Peter Collins proposed to re-subdivide a 141 hectare farm zoned property in Rogers Rd, Trafalgar. The land is currently divided into five parcels but Mr Collins proposed to re-subdivide the property into three lots of 4.9, 6.6 and 129 hectares each. There is a house on the second lot. The tribunal heard Mr Collins owns, farms and lives on the property but wants to rationalise the lot structure of the land.
Mr Collins applied to Baw Baw Shire Council for a permit, seeking permission to use the smaller lot for a house.
VCAT was told council planning staff recommended the permit be refused but council supported the application subject to conditions.
Neighbouring property owner Sarah Brown opposed the application and appealed council’s decision at VCAT.
After hearing submissions from both parties and inspecting the land and its surrounds, tribunal member Geoffrey Code said a permit should be granted but did not allow the smaller lot to be used for a house.
Mr Code said the subdivision was an “acceptable planning outcome.”
Mr Code said in the farming zone, the minimum subdivision lot size was 40 hectares but a permit may be granted to create smaller lots if the subdivision was a re-subdivision of existing lots and the number was not increased.
“Having regard to the purposes of the farming zone, each lot is large enough to be used for some form of agriculture.
“The two smaller lots would be suitable for a specialised agricultural activity. Mr Collins proposes to continue to live in the dwelling on lot two and to continue to use lot two for calf weaning.
“Lot one is steep and is unlikely to be suitable for an activity requiring large machinery,” Mr Code said.
Council’s decision included a condition that required a section 173 agreement to prohibit further subdivision and prohibit more than one dwelling being constructed on each lot.
Mr Code said he accepted submissions on behalf of Mr Collins that lot one was too steep for growing potatoes, although there were no submissions or evidence about it being too steep for other agricultural activities such as grazing cattle.
Mr Code said the main difficulty he had with use of proposed lot one for a dwelling was that the application did not include details of the construction of the dwelling and the farming activities to be undertaken.
Ms Brown opposed use and construction of a dwelling on lot one for a number of reasons including loss of privacy; separation distance to her house; and loss of land value.
Mr Code said Ms Brown’s house was protected from a mature cypress hedge which would protect privacy
The tribunal was told the property also was covered by an environmental management overlay. Mr Code said any risk of land slip issues would be considered if the owner sought a planning and building permit.
Mr Code ruled to support the subdivision but said if lot one was sold, then the new owner should be responsible for applying for a permit to use and develop the land for a house.