Strict conditions governing a new small farm build at Bolinda have been scrapped after being challenged at the Victorian Civil and Administrative Tribunal.
Macedon Ranges Shire Council approved use and development of a second dwelling and outbuilding at 90 Weatherly Road last year with stringent controls.
The existing house on the property forms part of larger agricultural operation for the breeding and training of racehorses. The site was formerly one lot but was subdivided in 2019.
Conditions prevented further subdivision of the land, demanded consolidation of two of the owner’s lots before development, and prevented the owner from “making complaint against lawful agricultural activities on the adjoining or nearby land”.
Applicant Martin Mizzi disputed the conditions as “unreasonable” and gained VCAT favour to have them removed despite council insistence they were necessary.
MRSC argued that “without inclusion of these conditions, the proposal would have been unacceptable, and it would have been inappropriate to grant the permit”.
The council outlined the history for this site, which included two previous applications for subdivision and development that were refused. One of these decisions was reviewed by the tribunal whereby the council’s refusal was upheld.
VCAT member Jane Tait noted the applicant’s desire to appeal the condition about future subdivision as “curious”, his submission stating “the second dwelling is not intended to be sold, subdivided nor rented to the general public but is to form part of the infrastructure of Kalimnah Farm” and used for business operations.
Tait acknowledged the potential for future subdivision applications and fragmentation of the agricultural land threat but that it would be a separate application for council consideration at that time.
The member felt conditions on the house use were designed to maintain connectivity between the new dwelling and agricultural activities conducted on the site.
When it came to the condition preventing the owner from making complaint against lawful agricultural activities on the adjoining or nearby land, Tait accepted the applicant’s argument that the condition was taking away legal rights of future owners, which would result in them accepting unreasonable impacts on their amenity.
Tait also removed the condition for lot consolidation, agreeing with the applicant that this application was not to ‘right past wrongs’ (or perceived wrongs) from the issue of the 2019 subdivision permit.
“While a condition of this sort is regularly used by councils to prevent the further fragmentation, it has already contributed to this outcome by its previous approval of the subdivision,” Tait said.
