SWAN Hill Council’s refusal to issue a certificate to an orchardist to build worker accommodation on the site has been upheld by the planning tribunal.
Redland Fruit took Swan Hill Council to the Victorian Civil and Administrative Tribunal, to determine whether the proposed use and construction of accommodation on the Lake Boga orchard for workers was ancillary to the purpose for which the orchard is being used.
The applicant argued the proposed workers accommodation was a complex of six detached buildings to be used only by workers on the subject land for the duration of the harvest at no cost to the workers, was ancillary to the main use of the subject land for horticultural activities.
Geoffrey Code said he must consider whether a proposed use and development of land complies with the Swan Hill Planning Scheme.
“The key question is whether the proposed use is ancillary to the existing use of the land,” he said in his judgement.
“The well-established principle in planning law is that if an existing or proposed use of land is within a ‘purpose’ for which the land is used or is to used (often referred to as a dominant use), the latter but not the former is subject to the provisions of the relevant planning scheme.
“This is illustrated by the often-cited example of administrative activities in an office environment within the Myer department store building that support the retail activities in the store.
“Those activities are not a separate use for the purpose of an ‘office’ but are ancillary activities to the dominant use of the land as a ‘shop’.”
Redland Fruit has an orchard at 269 Long Lake Road, Lake Boga, and is within the farming zone under the planning scheme.
The orchardist had unsuccessfully applied to the council for a certificate of compliance before filing its application for a declaration.
Redland Fruit described its proposal to establish workers accommodation to cater for a maximum 32 workers associated with the horticultural production on the land during the harvest period, from July to December.
The council’s case was that the use of the accommodation was not ancillary to the use of the land for horticulture and was a separate use (characterised as ‘rural worker accommodation’) that required permission under the planning scheme, and development of the accommodation required permission under the planning scheme.
Accordingly, the council submitted a certificate must be refused because “the whole of the use or development would require a permit or is prohibited under the planning scheme”.
Mr Code said his ultimate finding was that the proposed use was not ancillary to that purpose and “I characterise the proposed use as a separate use for the purpose of ‘rural worker accommodation’.”
“I also characterise the development as for that purpose,” he said.
“The proposed use and development for ‘rural worker accommodation’ does not comply with the requirements in clauses 35.07-1 and 35.07-4 of the planning scheme.
“The effect of the non-compliance is that permission is required under the planning scheme for the use and development in the proposal.”
