IN what may be a dramatic change to building permit applications in the Strathbogie Shire, the Victorian Civil and Administrative Tribunal (VCAT) has made a ruling that effectively overturned an anticipated council rejection for the construction of a farm dwelling in Kithbrook.
The application for a single-building house and workshed on the 10ha land was lodged in October 2023 and had not been decided upon by council’s planning team more than 12 weeks after the statutory response period of 60 days had expired.
Notice was also not given on the application until 56 days after its lodgment.
The land’s owners took the matter to VCAT which ruled on Friday, 20 December that it would grant a permit for the dwelling’s construction.
The Strathbogie Shire Council was ordered to pay the applicants $1335 for costs.
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VCAT member and arbiter Nick Wimbush ruled that the landowners’ intention to plant and operate apricot and quince orchards and produce free-range eggs on the land was sufficient to warrant the building of a dwelling.
Lack of a town planner and administration support and upgrades to software were blamed for the delay as well as a one month wait for a response from GMW to council.
Both explanations were rejected by Mr Wimbush.
Consultant Tim Berger appeared for the landowners and said he had assumed the council permit would not be granted for the dwelling, despite no decision having been made.
“If council had still supported it, they could have done so and it could all have been done and dusted,” Mr Berger said.
“So, it can be deemed that their decision was always going to knock it back.”
Under council regulations, allotments less than 40 hectares can only have a dwelling constructed on them if the land is used for agricultural production and the dwelling is necessary for that production.
Euroa planning consultant Troy Spencer said the VCAT decision was a ‘game changer’ for planning applications and believes it could open the floodgates for more successful bids.
“This could change things, one hundred per cent it could,” Mr Spencer said.
"I think what needs to happen is for this to send a really strong message to the council, for the community's sake."
Mr Spencer said he had stopped accepting applications from people wanting to build on land less than 40ha.
“I tell them up front that it would just be a waste of their money and time,” he said.
“Some people have wanted me to do it anyway, and I tell them ‘it's not going to get you anywhere’.
“You need to prove the nexus for supporting a dwelling on the land.”
Mr Spencer said most cases were from legitimate applicants.
“There are real people doing real, legitimate things, who want to have an enterprise that their expertise is in, who are not allowed to use land less than 40 hectares to do it on, because they couldn't possibly do the enterprise without having a house there onsite.”
Mr Berger said VCAT had taken a site-specific decision based on the original proposal.
“The import thing is the council often take a blunt view that there was a new house proposed on agricultural land and they didn’t really look at the details."
Mr Berger would not be drawn on the future prospects of such applications.
“I don’t think it's flood gates necessarily, but it is important for the council that they have shown the shire they recognize the need to assess an application on its merits.
“They were really taking a ‘computer-says-no’ approach instead of really looking at it.”
Mr Spencer cited a case in Avenel from November 2023 where a couple had bought land and invested in a goat enterprise before applying for a dwelling permit.
“That was for dairy goats where they were going to milk them twice a day, but somehow weren't allowed to live on the land,” Mr Spencer said.
“We got a message from council within three days to say they were not going to support it.
“The couple had their herd already there; they had their building and their fencing - it was not like they were just making it up.
“They were milking the goats already in a shed.
“But apparently, according to council, you can do all that without living on the land.”
The council town planner for the case was contacted by The Euroa Gazette for comment.
