Victorian Civil and Administrative Tribunal|2009-01-08|Before: Mr P

AMS Pty Ltd v Maroondah CC [2009] VCAT 17 (8 January 2009)

Section 79 Planning and Environment Act 1987 - 8 lot subdivision - whether CFA a referral authority pursuant to clause 66.01 - whether clause 56 applies

AMS Pty Ltd v Maroondah CC [2009] VCAT 17

The decision of the Responsible Authority is set aside.
In permit application M/2008/161 a permit is granted and directed to be issued for the land at 29 Karingal Street, Croydon in accordance with the endorsed plans and on the conditions set out in Appendix A. The permit allows:
- Subdivision into eight(8) lots

Mr R Easton, Town Planner, Easton Consulting Pty Ltd

Mr P O'Farrell, Barrister instructed by Rigby Cooke Lawyers

Mr M Sacco, Fire Safety Officer, Country Fire Authority

Total area of 2,832m², regular shape, 21.9m frontage, 129.7m depth

The subject land is developed with 8 dwellings (3 double storey and 4 single storey) pursuant to Permit No M/2007/429 dated 2 October 2007.
The application is for an 8 lot subdivision of the subject land. The Responsible Authority indicated that it was supportive of the granting of a permit subject to proposed conditions.
The Country Fire Authority (CFA) has objected to the grant of the permit on the basis that the subdivision does not adequately cater for fire risks associated with the land. CFA considers the proposal does not comply with clause 56.09-3, Fire Hydrant Objectives in the planning scheme. The CFA considered that such deficiencies could be overcome by the imposition of conditions on a permit.
The CFA proposed the incorporation of the following conditions on any permit that was to issue:
- 1.1 Prior to the issue of a Statement of Compliance, operable hydrants (incorporating a booster connection) are to be installed to the satisfaction of the CFA. The maximum distance between each hydrant and the rear of all building envelopes must be 60 metres.
- 2.1 The Responsible Authority and landowner/developer agree to enter into a Section 173 Agreement requiring the installation of an automatic Home Fire Sprinkler System in accordance with the requirements of AS 2118.5 - 2008 to each unit prior to the completion of development.
- 2.2 The Section 173 Agreement would also require that the hydrants be maintained and be kept available and ready for use by the CFA.
The CFA, following its original objection which suggested an alternate driveway layout and access redesign to comply with CFA access requirements, changed this to a requirement for an 8m radius turning circle, this requirement has since changed to a reference to hydrant locations and home fire sprinkler systems as specified in the above conditions
The applicant objects to the requirements sought to be imposed by the CFA. The applicant submits the dwellings being constructed on the subject land are all at lock up stage and for the purposes of the application for subdivision should be considered to be existing dwellings. The applicant's objection is based on the following:
- The front dwelling has existed on the land for 50 years and is directly opposite a fire hydrant in the road.
- All but two of the dwellings are within 120m of the hydrant[1] on the opposite side of the road.
- A 40mm water tapping has been installed as required by Yarra Valley Water, who is responsible for specifying the design standards for fire hydrants. No upgraded tapping was required.
- The installation of a fire hydrant on the property would require an additional tapping to the mains which is considered to be unreasonable.
- The driveway pavement is 3m wide with clearance between dwellings and the fence a minimum of 5m, widening of the driveway is impractical and would result in a loss of landscaping approved as part of the development.
The land is located within the Residential 1 zone and subject to a Significant Landscape Overlay and Special Building Overlay. A permit for subdivision is required under the zone and Special Building Overlay. The provision for notice and review is exempt.
Clause 32.01-2 provides that 'a permit is required to subdivide land. An application to subdivide land, other than an application to subdivide land into lots each containing an existing dwelling or car parking space, must meet the requirements of Clause 56'. In turn Clause 56 states 'these provisions do not apply to an application to subdivide land into lots each containing an existing dwelling'[2].
Both the permit applicant and Responsible Authority have treated the application for subdivision as one where each lot contains an existing dwelling and both consider therefore that the provisions of clause 56 do not apply.
The Responsible Authority also considers that whilst the application was referred to the CFA this was done in error. In the Responsible Authority's view, having regard to clause 66.01, the CFA is not a referral authority as although the proposed subdivision is outside the metropolitan fire district which meets the first part of the requirement for referral under clause 66.01 it does not create a road. Clause 66.01 provides that for an application 'to subdivide land outside the metropolitan fire district which creates a road', the CFA is the relevant referral authority.
If the CFA is not a referral authority and the application is exempt from the notice[3] and review provisions[4] under the planning scheme then pursuant to section 82(3) Planning and Environment Act 1987which indicates that if a planning scheme exempts a decision from review an application for review cannot be made in respect of the decision, the CFA should not be a party to this application.

The CFA relies on the subdivision creating a road and in this respect relies upon the definition of 'road' in section 3 of the Planning and Environment Act 1987 which is defined to 'include a highway, street, lane, footway, square, court, alley or right of way, whether a thoroughfare or not and whether accessible to the public generally or not'.
The created road referred to be the CFA is the accessway or driveway created from the front of the subject land to provide access to each of the dwellings on the subject land. Upon subdivision of the land into 8 lots this accessway will form part of the common property, be the responsibility of the body corporate made up of the owners of each lot and allow for each owner to access their lot.
It is not considered that the creation of this accessway or driveway is a road as defined within section 3 of the Planning and Environment Act 1987. Just because it provides access to a number of dwellings does not change its status from a driveway providing access to an individual dwelling. It is a private driveway or accessway on land owned by or the responsibility of the owners of the land. Whilst members of the public in the form of invited persons may use the driveway to access each dwelling this does not constitute a public thoroughfare, nor is it accessible to the public generally, it is only accessible to invited persons or the owners or occupiers of the dwellings on the subject land.
As there is no creation of a road then the CFA in relation to the application to subdivide this land is not considered to be a referral authority.

Does the land to be subdivided into lots contain an existing dwelling on each lot?

Clause 32.01-2 provides for the exemption from notice and review rights if each lot to be subdivided contains an existing dwelling. Clause 32.01-1 provides 'an application to subdivide land into lots each containing an existing dwelling or car parking space is exempt from the notice requirements of Section 52(1)(a), (b) and (d), the decision requirements of Section 64(1), (2) and (3) and the review rights of Section 82(1) of the Act'.
The CFA relies upon the application of clause 56. In this respect it submits that firstly the provisions of clause 56 apply and secondly that even in relation to recent amendments under Amendment VC49 to the planning scheme as the proposal does not meet the requirements of clause 56, referral to the CFA is required.
Both the applicant and Responsible Authority do not consider clause 56 applies. In this respect they submit that the dwellings being constructed on the land are at lock up stage, although at the time of the hearing no certificate of occupancy had been issued and this for the purposes of a subdivision application is sufficient to conclude that each lot contains an existing dwelling.
This raises the question as to whether a dwelling that is built to lock up stage or further, although does not have a certificate of occupancy allowing persons to reside in the dwelling, constitute an existing dwelling for the purposes of the Residential 1 zone and clause 56? Given the time delay between the hearing and this determination a certificate occupancy may have been granted. The applicant's expectation was that settlement for the sale of two of the dwellings would occur prior to Christmas.
If it is accepted that the dwellings are to all intent existing then the exemptions relating to the application of clause 56 in both the Residential 1 zone and clause 56 itself will apply. If this is the case then the CFA, cannot rely upon the provisions of clause 56. There are buildings on each lot that are in the form of individual dwellings and are intended to be used as such. For the purposes of an application for subdivision and whether clause 56 applies it is considered that the dwellings exist on each lot.
A permit for the construction of the dwellings was granted on 2 October 2007. The issues raised by the CFA are certainly valid in terms of safety and accessibility for the purposes of fire safety. There were no objections to the permit for the development of the dwellings. At the time of the consideration of this application the matters raised by the CFA could have been of relevance particularly in terms of the driveway width. The CFA however was not made aware of such an application as there is no requirement for referral in such applications.
This seems to raise an anomaly in the planning scheme. If is accepted that the issues of fire safety raised by Mr Sacco in his evidence are relevant considerations and I consider they are, then it seems that the time to receive comments from and for the CFA to be involved should be at the time of the proposal for development, not at the time of subdivision, in a situation such as this, where there is no creation of a road and they are therefore not a referral authority and the provisions of clause 56 do not apply as dwellings have been constructed on the lots.

The CFA is not a referral authority in relation to the application for subdivision under the provisions of clause 66.01 of the planning scheme. As the provisions of clause 56 do not apply the CFA has no standing in which to be a party to the proceedings as such an application is exempt from the provisions of notice and review. The CFA therefore has no standing in which to require the imposition of conditions on the subdivision permit.
The application is allowed. A permit is granted for the subdivision of the land into 8 lots subject to conditions proposed by the Responsible Authority.

1 The use and/or development as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.

2 Prior to the issue of a Statement of Compliance for the subdivision, the areas set aside for parked vehicles and access lanes within the common property as shown on the endorsed plans must be:

(a) surfaced with an all-weather seal coat, with one of the following alternatives:

(i) 100 mm depth reinforced concrete on a 50 mm class 2 fine crushed rock bed with F72 reinforcing fabric fixed centrally.

(ii) A bituminous concrete surfacing consisting of a 40 mm compacted depth, size 10 aggregate, on a 150 mm depth bed of 20 mm, class 2 fine crushed rock bed.

(iii) A bituminous prime and seal or emulsion treatment using a cover of size 10 aggregate and a second cover of size 5-6 aggregate on a fine crushed rock bed as for (ii) above.

(b) line-marked to indicate each car space and all access lanes;

(c) provided with concrete kerbs or other barriers to prevent direct vehicle access to an adjoining road other than by a vehicle crossing;

(d) provided with a directional sign(s) to direct drivers to the area set aside for car-parking. The sign(s) must be located and maintained to the satisfaction of the Responsible Authority, and must not exceed 0.3 square metres each.

Parking areas and access lanes must be kept available for these purposes at all times.

3 The applicant or owner must pay to Council a sum equivalent to 5% of the site value of all land in the subdivision. This payment shall be made prior to the issue of a Statement of Compliance and may be adjusted in accordance with Section 19 of the Subdivision Act 1988.

4 Prior to the issuing of a Statement of Compliance, vehicle access to serve each lot in the subdivision shall be constructed and appropriately drained to the requirements and satisfaction of the Responsible Authority.

Prior to the issue of a Statement of Compliance for the subdivision permitted under this permit, the Owner of the land must complete to floor level, the unit development that is proposed to be subdivided or, enter into, and register on title, an agreement with the Responsible Authority under Section 173 of the Planning and Environment Act 1987, which among other things, provides that:

(a) except with the consent of the Responsible Authority, the development of any lot created by the subdivision of the land must be in accordance with the development authorised by Planning Permit No. M/2007/429 issued by Council and the various conditions included in that planning permit and the development depicted in the plans from time to time endorsed pursuant to that permit;

(b) in determining whether or not to give its consent, the Responsible Authority may consider any proposal against the provisions of any relevant design guide for medium density housing;

(c) the cost of the preparation or review of the agreement and its registration on the title to the land must be borne by the Owner of the land.

6 No polluted and/or sediment laden runoff is to be discharged directly or indirectly into Melbourne Water's drains or watercourses.

7 Prior to Certification, the Plan of Subdivision must be referred to Melbourne Water, in accordance with section 8 of the Subdivision Act 1988.

8 Prior to the commencement of works separate application, direct to Melbourne Water, must be made for any new or modified storm water connection to Melbourne Water's drains or watercourses. Prior to accepting an application, evidence must be provided demonstrating that Council considers that it is not feasible to connect to the local drainage system. Contact Asset Services on telephoned 9235 1414 for Melbourne Water's connection requirements, including payment of appropriate fees.

9 The Applicant or owner must enter into an agreement with SPI Electricity Pty Ltd for supply of electricity to each lot on the endorsed plan.

10 The Applicant or owner must enter into an agreement with SPI Electricity Pty Ltd for the rearrangement of the existing electricity supply system.

11 The Applicant or owner must ensure that any private electric line in the subdivision is rearranged to the satisfaction of SPI Electricity Pty Ltd.

Note: The existing overhead service to the front property (which is included in the Body Corporate) will need to be relocated to the Group metering location to comply with the Service and Installation Rules. Because you can only have one supply point into your property you will need to install Group Metering, a Mains control metering structure to supply the multiple units. This work must be carried out by a REC (Registered Electrical Contractor) and a Certificate of Electrical Safety sent to this office before a Statement of Compliance for your subdivision can be released.

(a) the subdivision plan is not certified within twelve (12) months of the date of issue of this permit; and

(b) Statement of Compliance is not obtained within five (5) years of the certification of the plan; or

any extension of such periods the Responsible Authority may allow, in writing, upon application made before or within three months after such expiry.

[1] Clause 56.09-3 Maroondah Planning Scheme Fire hydrants objective

To provide fire hydrants and fire plugs in positions that enable fire fighters to access water safely, effectively and efficiently.

* A maximum distance of 120 metres from the rear of the each lot.

Hydrants and fire plugs must be compatible with the relevant fire service equipment.

[2] Clause 32.01-4 Maroondah Planning Scheme

Environment Act 1987

AMS Pty Ltd v Maroondah CC [2009] VCAT 17

At a glance

Court

Decision date

Before

Source

Judgment (47 paragraphs)

AMS Pty Ltd v Maroondah CC [2009] VCAT 17 (8 January 2009)

Parties

Legislation Cited (1)