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[2001] VCAT 989
mixed. Application allowed in part: permit to issue for two-lot subdivision with conditions 1-11 from Notice No. P001326 varied as follows: (i) condition 4 deleted and replaced with requirement for pumped...
The applicant challenged several permit conditions for a two-lot subdivision. The Tribunal found the requirement to install an expensive piped drainage system to a distant creek unreasonable and replaced it with a temporary pumped drainage solution until a street drain is provided. It upheld conditions requiring shared access via the battleaxe handle and garage location to avoid multiple crossovers and common property. The Tribunal deleted a 5% parkland contribution because it is not required for a two-lot subdivision, but added a restriction that the front lot can only be developed with a single dwelling to prevent circumvention of contribution entitlements.
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1,855 words · generated 27/06/2026
Mr L. Aberline sought review under section 80 of the Planning and Environment Act 1987 of conditions imposed in a Notice of Decision to Grant a Permit for a two-lot subdivision at 87 Dromana Parade, Safety Beach. The proposal divided a deep allotment (area 1,390 m²) into a front lot of 501 m² and a rear battleaxe lot of 893 m², with a two-storey dwelling already under construction on the rear lot (Reasons [2]–[3], [8]). The Responsible Authority (Shire of Mornington Peninsula) had imposed conditions including:
1 cited instrument linked from this judgment.
The applicant challenged those conditions on grounds of cost, practicality and legal entitlement. The Tribunal inspected the site on 8 May 2001 and heard submissions on 27 April 2001 (Reasons [7]). Member H W Terrill allowed the review in part, varying the permit conditions: deleting and replacing condition 4 with a requirement that a pumped drainage system be installed for the front allotment until it can connect to a piped street drain once provided; retaining condition 5(c)-(e) but adding a new subsection H to require the front allotment be developed with a single dwelling only; deleting condition 9 (the 5% parkland charge); and renumbering remaining conditions (Decision paragraphs and Reasons [9]–[13]).
The Tribunal’s reasoning is pragmatic and focused on reasonableness in the imposition of permit conditions.
Drainage (Condition 4): The Tribunal considered the practical facts: the designated discharge point was about 150 metres away and the cost of installing the required underground piped system would be high (Reasons [9]). Moreover, submissions indicated Council may install a drain to the creek in the near future. Member Terrill described the original condition as "not reasonable" because it would place an undue burden on the subdivider given the circumstances (Reasons [9]). The remedial measure was to delete the original wording and substitute a proportionate, temporary solution: require a pumped drainage system for the front allotment to remain in operation until a piped street drain is available for connection (Decision variation (i), Reasons [9]).
Access and garage-location (Conditions 5(c)-(e)): The Tribunal physically inspected the site and evaluated the practical impact of creating separate crossovers on the street. After viewing the street and site, the Tribunal found the Responsible Authority's approach reasonable: avoiding additional crossovers and common property was desirable; ownership of the battleaxe handle by the rear lot with a right of carriageway for the front lot was an acceptable way to preserve lot identity without creating common property (Reasons [10]). Accordingly, the Tribunal refused to delete those conditions.
Parkland contribution (Condition 9): The Tribunal accepted the submission that a 5% parkland contribution was not required for a two-lot subdivision under the Subdivision Act as applied in this case (Reasons [11]). Therefore condition 9 was deleted.
Safeguard against circumvention: Recognising the deletion of condition 9 might leave the Responsible Authority exposed if the front lot were later developed for multiple dwellings, the Tribunal imposed a compensating restriction. It added subsection H to condition 5 to require the front allotment be developed with a single dwelling only (Reasons [11]–[12]). This was aimed at preventing future multi-dwelling development that could evade contribution entitlements.
The Tribunal’s approach is fact-driven: it relied on inspection, practical considerations of the street and lot, and proportionality in the imposition of conditions. The member balanced the council’s infrastructural and planning objectives with fairness to the subdivider.
Before this decision the Tribunal and planning authorities routinely imposed conditions relating to drainage works, access arrangements, and open space contributions in subdivision permits. The decision does not create a new statutory rule, but it exemplifies these principles in application:
After the decision, the practical takeaway for planners and applicants is that VCAT will review permit conditions on reasonableness and proportionality, considering site-specific factors and likely future public works when assessing whether to enforce infrastructure obligations on a subdivider.
Passage (Reasons [9]): "Condition 4 relates to the installation of a pipe drain that would serve a number of allotments. This is not reasonable and it was mentioned at the hearing that the Council may install a drain to the creek in the near future."
Plain-English: The Tribunal thought it was unfair to force the applicant to pay for a big piped drain that would benefit other properties, especially since Council might build the drain soon.
Passage (Reasons [9]): "The condition 4 will be deleted as it reads and replaced with a condition allowing development to occur with a pumped drainage system for the front allotment that must be connected to any street drain once installed."
Plain-English: Instead of forcing the big pipe, the Tribunal ordered a temporary pumped drainage setup for the front lot until a proper street drain is put in, at which point the front lot must be connected.
Passage (Reasons [10]): "After viewing the site, the Tribunal believes that the conditions should remain and the battleaxe handle can still be owned by the rear allotment with a right of carriageway to the front allotment if, as Mr Aberline stated, they did not want to create a common property area."
Plain-English: The Tribunal saw no problem with the rear lot owning the access strip and granting the front lot a right to use it; this avoids creating shared property and extra crossovers.
Passage (Reasons [11]): "Condition 9 requires the payment of a 5% parkland charge which is not a requirement for a two lot subdivision. This condition will be deleted."
Plain-English: The 5% open-space payment is not needed for a simple two-lot split here, so the Tribunal removed that condition.
Passage (Reasons [12]): "The Tribunal believes that the front allotment should only be developed for a single dwelling and a subsection shall be added to condition 5 to ensure that occurs."
Plain-English: To stop the front lot being developed into multiple houses later (which could avoid contributions), the Tribunal added a rule that only one house can be built on the front lot.
This decision is most relevant where:
Practitioners should note the Tribunal’s willingness to tailor conditions: preserving planning objectives (access arrangements) while moderating onerous infrastructure obligations and adding targeted safeguards.
The judgment is a VCAT Member decision applying Tribunal discretion to conditions in a planning permit. It is persuasive in Tribunal and local planning contexts for similar fact patterns, but does not carry the binding authority of a court of record. The decision illustrates VCAT’s fact-sensitive approach to reasonableness and proportionality in permit conditions, particularly where council infrastructure may reasonably be expected to be provided soon, and where a two-lot subdivision is in issue. Subsequent Tribunal panels and practitioners would likely cite it for the specific propositions that (a) requiring a subdivider to install major piped infrastructure may be unreasonable if council works are imminent or if the cost is disproportionate, and (b) section 173 agreements can be used both to preserve access arrangements and to add safeguards limiting future development. Users should check for higher court authority in their jurisdiction for binding precedent.
Threshold for unreasonableness: The decision does not provide a quantitative threshold for when drainage costs become 'unreasonable'. Future cases will need to clarify how to measure disproportionate cost, and what evidence is required to persuade the Tribunal that council works are imminent.
Reliance on imminence of council works: The Tribunal referred to submissions that Council "may install" a drain in the near future as a factor. What level of certainty about future public works suffices to displace a subdivider's obligation remains open: would a mere suggestion be enough, or is formal council commitment required?
Interaction with broader Subdivision Act requirements: The decision concludes a 5% contribution is not required for a two-lot subdivision in the circumstances, but it does not analyse statutory sources in depth. The boundary between when parkland contributions are mandatory, discretionary or inappropriate would benefit from further judicial analysis.
Long-term enforceability of section 173 safeguards: The Tribunal used a section 173 framework to add a single-dwelling restriction. The decision does not explore the limits of such covenants, their durability against future planning changes, or their effect on land value and compensation questions.
Applicability to larger multi-lot subdivisions: The decision turns on the specific fact of a two-lot split. How the principles apply where more lots are created, or where the subdivider’s works would clearly be the primary driver of a new drainage catchment, remains a question.
For practitioners, this decision emphasises the importance of site inspection evidence, cost evidence for infrastructure obligations, and careful drafting of section 173 agreements to achieve both planning objectives and fairness to subdividers.
The request to review conditions in the Notice of Decision to Grant a Permit dated the 29 November 2000 is allowed in part. A permit shall issue for the two (2) lot subdivision with conditions 1 - 11 as listed in the Notice of Decision No. POO1326, but varied as follows:
(i) Condition 4 shall be deleted and replaced with the following:
Condition 4 - Prior to a Statement of Compliance being issued, a pumped drainage system shall be installed for the front allotment to remain in operation until the house and land drainage can be connected to a piped drainage system in the street.
(ii) Delete condition 9 and renumber conditions 10 and 11 to 9 and 10.
"H. The front allotment shall be developed with a single dwelling only".
Mr Scott Taylor, Town Planning Consultant represented the Responsible Authority.
1. This application is brought under s80 of the Planning and Environment Act 1987 to review conditions in a Notice of Decision to Grant a Permit for a Subdivision.
2. The subject land at 87 Dromana Parade, Safety Beach is situated on the north west side approx. 60 metres south west of Balmoral Avenue. The land is flat, cleared and a two storey dwelling is under construction near the rear of the land. The land has a frontage of 15.25 metres, a depth of 91.44 metres and an area of 1390m².
3. The proposal as described in the Officer's report to the Responsible Authority is:
"The proposal is for a two (2) lot subdivision at 87 Dromana Parade, Safety Beach. Lot 1 (front lot) will be 501m² and remains vacant for future development. Lot 2 (rear lot) will be 893m² with the dwelling currently under construction located within its boundaries. Lot 2 will be a battle-axe lot accessed via the handle. Any future development on Lot 1 may not require a planning permit if it conforms to the Overlay controls which affect it, as the allotment is greater than 500m²".
4. The subject land and surrounding land is zoned Residential 1 under the Mornington Peninsular Planning Scheme and affected by a Design and Development - Schedule 1 - Township Design (DDO 1) and a Vegetation Protection Overlay - Schedule 1 - Township Vegetation (VPO 1). A permit is required to subdivide land into two or more lots.
"Based on the distance to the discharge point (Sheep Wash Creek) some 150 metres away from the site and the high costs associated with placing this drainage system.
To avoid common property along the driveway, double vehicle crossovers have been supported in the area. Having a crossover for each lot would give a better identity to each property.
Use the Subdivision Act council cannot ask for contribution fees on a 2 lot subdivision".
4. Prior to a Statement of compliance being issued for the subdivision the owner must.
(a) Construct and connect both lots to the designated point of stormwater discharge, via an underground drainage system to the satisfaction of the Responsible Authority and drainage Authority.
This drainage system must include permanent siltation control measures during construction. The designated point of discharge location is the existing drainage pit at Sheep Wash Creek to the south of the subdivision.
The drainage system in Dromana Parade must utilise pipes with a 225mm diameter UPVC sewer grade or equivalent. Junction pits with dimensions of 900mm x 600mm internally. Property inlets must be provided to all lots.
5. Prior to a Statement of Compliance being issued for the subdivision the owner must enter into an agreement with the Responsible Authority pursuant to Section 173 of the Planning and Environment Act 1987, the agreement must be prepared and registered on the title of the land to the satisfaction of the Responsible Authority at the owner's cost. The agreement must provide for:
(c) Access to both lots being via a common access point and vehicle crossover at the handle to the battle axe lot.
(d) No new vehicle crossovers or access points being provided for the front lot.
(e) The vehicle garage to the front lot being located at the rear of the lot and accessed via the battle axe handle.
9. Prior to the issue of a Statement of Compliance, the subdivider must pay to the Responsible Authority, an amount equal to 5% of the site value of all the land in the subdivision. Such payment will satisfy in full any public open space requirement under the Planning Scheme and under Section 18 of the subdivision Act 1988. The Responsible Authority may agree to defer this requirement where the owner agrees to enter into a Planning Agreement pursuant to Section 173 of the Planning and Environment Act 1987 whereby the owner agrees to pay the open space contribution under this permit on the whole of the land subject of this application when the land or any part of it is further subdivided. The agreement must be prepared and registered on the title of the land to the satisfaction of the Responsible Authority and at the owners cost.
7. The Tribunal considered it necessary to visit the area before deciding this request. The inspection was carried out on the 8 May 2001.
8. The proposal is to subdivide a very deep single allotment into two virtually creating a dual occupancy development. The future rear allotment is battle axe shape and a large two storey dwelling has already been constructed at the rear with the vehicular access along the south western side boundary.
9. The request is to review conditions and each shall be considered separately.
Condition 4 relates to the installation of a pipe drain that would serve a number of allotments. This is not reasonable and it was mentioned at the hearing that the Council may install a drain to the creek in the near future. The Tribunal sees the condition as unfair, however understands the present drainage problem of the area. The condition 4 will be deleted as it reads and replaced with a condition allowing development to occur with a pumped drainage system for the front allotment that must be connected to any street drain once installed.
10. Condition 5(c), (d) and (e) refer to driveway access and garage location for the front allotment. After viewing the site, the Tribunal believes that the conditions should remain and the battleaxe handle can still be owned by the rear allotment with a right of carriageway to the front allotment if, as Mr Aberline stated, they did not want to create a common property area. The drive access argument put by Mr Taylor is reasonable after viewing the street and the request for the removal of these conditions is disallowed.
11. Condition 9 requires the payment of a 5% parkland charge which is not a requirement for a two lot subdivision. This condition will be deleted. Mr Taylor expressed concern at a possible multi development occurring on the front allotment and if this occurred in the future, an entitlement could not be made to cover the rear allotment.
12. The Tribunal believes that the front allotment should only be developed for a single dwelling and a subsection shall be added to condition 5 to ensure that occurs.
13. In summary, condition 4 will be altered to be less onerous, condition 5 items will remain and condition 9 deleted, but a safeguard added to condition 5 to ensure that no further subdivision occur by requiring the establishment of a single dwelling on the front lot.
Aberline
Shire of Mornington Peninsula [2001] VCAT 989
Application allowed in part: permit to issue for two-lot subdivision with conditions 1-11 from Notice No. P001326 varied as follows: (i) condition 4 deleted and replaced with requirement for pumped drainage system for the front allotment to operate until connection to future piped street drainage; (ii) condition 9 deleted and remaining conditions renumbered; (iii) condition 5 amended to add subsection H requiring the front allotment to be developed with a single dwelling only.