VICTORIA’S planning umpire has overturned a Mildura Council decision to refuse a permit for a dwelling within the Farming Zone on the basis that it would remove valuable agricultural land to enable construction.
The Victorian Civil and Administrative Tribunal, however, found the Mildura Older Irrigation Area (MOIA) that aims to protect land for horticulture, does not prohibit the use and development of a dwelling, but rather includes matters for consideration of such applications.
The tribunal heard the 6.9-hectare Karadoc Avenue site, about 530 metres south of Fifth Street, currently contains a vineyard without dwelling and is generally surrounded by lots generally set to vineyards and citrus with dwelling and outbuildings.
The council refused the application in January last year on three grounds, including that it failed to meet the decision guidelines of the Farming Zone which sought to provide the use of land for agriculture and encourage the retention of productive agricultural land; that it failed to meet state policies relating to the protection of agricultural land; and that it failed to provide for the growth and expansion of the horticultural industry within the MOIA.
On behalf of the applicant, Roy Costa, of Roy Costa Planning and Development, argued that the dwelling design had taken into account the constraints of the site and represented a design that responded well to the site and area at large.
Mr Costa submitted that the use and construction of a dwelling in conjunction with the use of the site as a vineyard did not offend against the policies within MOIA and Mildura East Growth Area and further suggested that the Farming Zone lent support to the proposed dwelling use and development.
Tribunal member Alison Slattery said the use and development of the land for a dwelling must be in line with the objectives of policy as it relates towards both the protection of agricultural land and the promotion of increased growth in urban areas.
Ms Slattery said that in exercising a balance between the policy thrusts, the use and development of the land in the manner proposed would further the objectives of both appropriate growth and maintenance of viable agricultural areas.
“The current agricultural viability of the site is limited but viable,” she said.
“The concern is therefore not so much about losing productive farming land, rather, it is a matter of whether or not the dwelling will add to the viability of the site without limiting the viability of the surrounding area.
“There is limited undue impact from the use and development of the site as a dwelling due to the close location of several dwellings in this portion of Karadoc Avenue.
“Due to the more urban nature of this part of Nichols Point, I find that the interface between residential and farming land is not jarring here with dwellings readily evident, and I am satisfied that use will not be discordant with the prevailing dwelling uses.
“In this context, expectations for a pristine residential or farming environment are reasonably tempered.”
Ms Slattery said that the potential for the proposal to lead to a proliferation of dwellings in the area and the impact of that on the use of the land for agriculture was appropriately minimised.
The decision to refuse the application by Mildura Council was set aside and VCAT granted the permit subject to conditions.
“I consider that the proposal will represent an acceptable planning outcome,” she said.
