A proposal to build a house on a Trafalgar dairy farm has been approved, despite planners suggesting the property had no existing use rights.
The subject land, in Hillbricks Rd, was previously excised from a larger dairy farm into a two hectare lot with a house.
The owners now want to replace the existing house on the lot with a new family home.
Council heard the applicants milk 450 cows on a 260 hectare property. But planners said the application was not supported by a farm management plan that demonstrated a house was necessary for the agricultural use of the land.
The planning report to council said the applicant did not provide a farm management plan because the land was already identified as a residential use as per the 2011 house lot excision.
"Whilst there has been a cessation of existing use rights for a dwelling on the smaller parcel, the applicant states that the logical ongoing use of this land is for the residential use allowed by the subdivision," the report said.
Planners said despite the subject site being only 1.9 hectares, the aim was for the land to be used for agricultural purposes or consolidated.
"The proposal will ultimately create a rural residential use which will impact on surrounding agricultural uses and will permanently remove land from agriculture," the report said.
Planners did not support the application, saying the house had not been lived in for more than two years and therefore had no existing use rights.
But the applicant, Dianne Kent told council they were advised when the house was excised that it would maintain existing use rights.
She said they had tenants in the house but when they moved on they decided to leave the house empty.
"Our intention was always to build on that property and put a farm manager in our current house.
But she said buying more land and building a new dairy took priority over a new house.
"We built the farm up because that was our priority. In the last five years we've been contacted by a number of real estate agents to rent it out...we could've got $350 per week, it's not a run down shack. It still has power, water, an operational kitchen and bathroom," she said.
Cr Darren Wallace said he did not agree the existing house had lost its as of right use.
"The planning scheme doesn't make allowance for exceptional circumstance but that's our job as councillors to bring some pragmatism into our thoughts.
He said the house was maintained with the intention its use would be resumed as a replacement dwelling.
Cr Wallace said the house was excised from the larger farm holding and a section 173 agreement on the larger lot sacrificed its right for a house.
"This is requiring common sense. No farming land is being lost and the applicants aim to retain it on a small corner of a massive farm," he said.
Cr Peter Kostos said the housing lot was part of a 650 acre farming property.
He said the existing house had all the amenities of a house. "We aren't adding a house, it is replacing a house on a farming property," he said.
Cr Danny Goss said the intention of the original planning permit to excise the lot was clear with the section 173 agreement placed on the larger farming lot.
"Five acres isn't productive farmland and the lack of a business plan is irrelevant. It is not lost because it's not being used for farmland.
He said there had been a misunderstanding about the existing use of the site and with some knowledge of the planning scheme the applicants would have continued to rent the house and then the application would never have been presented to council.
Cr Joe Gauci said he was not supporting small lots on farm land but this application was different because there was a house already on the land.
Cr Tricia Jones voted against the proposal. She said the property had previously been excised but the planning scheme was a living document and changes could occur.
"The house has not been occupied for the past two years which eliminated the as of right use.
She said building a house on a lot under 40 hectares required a business plan to justify the house and the applicants had not provided a business plan.