The two clauses quoted refer to rural dwellings in the farm zone and rural subdivision.

The report goes on to say: “However, this work is outside the scope of the Amendment and is therefore recommended for further work. Clearly, it will also have capacity to impact a broader range of stakeholders and may require Council to rethink some of its views about the capacity for residential land use within rural areas.” 

However, as stated in the Council Report for the August 28th meeting, “Council notes the recommendation at page 38 of the Panel Report and will review the clauses as part of Council’s future strategic planning work”.

“However, the Panel also has some concerns about the consistency of Clause 22.06 with planning policy at clauses 14.01-1S and 16.01-5S. In summary, the Panel is of the view that further consideration should be given to both Clauses 22.05 and 22.06 as part of the transition to the new format planning scheme in due course (to address VC148 requirements) to ensure their consistency with the PPF. These concerns, and the implications of these concerns in relation to the Amendment, are discussed in the following chapter”.

Clauses 14.01-1S and 16.01-5S are state planning clauses that apply to all Shires and reference “protection of agricultural land and “Rural Residential Development”.

The Panel report goes on to say. “The Panel was advised that the current local policies were introduced into the planning scheme by Ministerial Amendment without public notification or an independent Panel process. Fundamentally, the Panel supports the policy discouragement for dwellings on land in the Farming Zone with an area between 4.1 hectares and 40 hectares unless they are necessary to support agriculture. However, it is genuinely concerned about the effect of policy support for dwellings on land less than 4.1 hectares for rural-residential purposes. Council confirmed that it generally applies these policies to support the development and use of dwellings on lots less than 4.1 hectares, but that it is normally strongly opposed to dwellings on land between 4.1 hectares and 40 hectares (except where justified as necessary for the agricultural use of the land)”.

The Panel report further went on to say the following. “This element of the policy does not appear to be consistent with state policy, the otherwise consistent line of local planning policies seeking to protect agricultural land, or the purpose of the Farming Zone. Likewise, it is not consistent with housing strategies that seek to direct rural residential living to land zoned accordingly. The Panel is aware of a long line of decisions of the Victorian Civil and Administrative Tribunal (VCAT) that have not supported the grant of a permit for the use and development of dwellings on small lots (less than 4.1 hectares) since they were regarded as inconsistent with state policy and rural zone controls. At the Panel’s request, Council provided a link to a sample of recent decisions concerning Clauses 22.05, 22.06 and 22.07 that confirmed this principle.

For example, in the case of R & D Collins & Ors v South Gippsland SC & Ors, VCAT held: I have a fundamental concern about the premise upon which the Council’s and Applicant’s positions are based. It is assumed that a dwelling on a 1.4-hectare lot (road reserve) is automatically acceptable or “an entitlement” as described by Mr Strachan. 

That position must be questioned when one considers the policies and decision guidelines set out in the Council’s Scheme … The net outcome of the proposal would be to remove high quality land of 0.8 hectares from agricultural production with the purpose of creating a rural residential lot. That appears to be contrary to the Scheme’s directions. High quality agricultural land is a scarce resource. Its progressive erosion, even by small increments, together with the creation of small rural living enclaves adjacent to viable and highly productive farms, sets up the potential for conflict. It also introduces a non-agricultural land use that would limit the potential for agricultural land to be returned to productive use at some time into the future. The Panel recognises that when a permit is applied for a dwelling on a small lot, the zone controls and the full suite of policies will be relevant. However, providing an express ‘carve out’ in policy by supporting rural-residential use of small farming lots generates capacity for direct inconsistency and “death by a thousand cuts”.

[2005] VCAT 2045, [15], [18]. The Panel acknowledges that this case was dealing with a boundary realignment and that Planning Scheme policies have changed since that date, but the principle endures. 

Editor Comment. This vcat case was from 2005, a full 6 years before the Rural Land Strategy came into effect in South Gippsland and hardly a suitable example to quote. They did at least put this in the footnote. In any event, it would not be possible to gain a permit on a road reserve nowadays under the Rural Land Strategy. It should also be noted that if all such lots under 4.1ha in the farm zone were to be built upon, less than 0.7% of farmland would be affected. This is stated in the Rural Land Strategy which is a Council policy document.

“Another serious concern is that dwellings in the Farming Zone are discouraged on certain land, but land with remnant native vegetation is nominated as having greater scope for such use and development in Clause 22.05. While the existence of remnant native vegetation may pose challenges for farming activities, in the Panel’s view, it is not necessarily consistent with the suite of state and local planning policies to create a distinct option for such land to be used for a dwelling. In fact, Council’s approach to the Amendment has been more stringent, to identify lots with high native vegetation cover (generally Crown Land allotments) as ‘no dwelling development’ lots. The Panel’s general support for the discrete changes proposed as part of this Amendment to refer to Restructure Overlay land should not be taken as its tacit approval of the remaining content of these policies”.

Council was asked when they were planning to revisit the idea of small lots in the farm zone, but no answer was supplied.

Council spokesperson Mr Paul Stampton made the statement that, 

“Council has no present intentions to change current policy in regards to rural planning.”

The Law says that Council must review its planning scheme within 6 months of a Council election so that would make the date around June 2022 before a review could be conducted. At that time, Council will review the planning scheme and the recommendation from the panel report as to the policy regarding dwelling approvals in the farm zone for lots under 4.1ha or for vegetated blocks.

On October 2nd, 2020, 2 months after the C90 motion was approved at Council, the administrators were briefed on the Rural Land Strategy.