REASONS WHY DECISION IS OF INTEREST OR SIGNIFICANCE

PLANNING SCHEME - interpretation or consideration of VPP provision

Interpretation of incorporated document under clause 52.03 South Gippsland Planning Scheme introduced by Amendment C48 - effect on ability to rely upon second exemption in clause 35.07-3 of Farming Zone to resubdivide existing lots

This is one of a number of cases considered by the Tribunal following the introduction of Amendment C48 to the South Gippsland Planning Scheme, which was a Ministerial amendment that stops permits being granted for dwellings on lots less than the minimum lot size in the Farming Zone or the creation of smaller lot subdivisions for an existing dwelling.

Held that where there is no existing dwelling on any of the lots, the incorporated document does not prevent the creation of a smaller lot than 40 hectares where the second exemption in clause 35.07-3 is being relied on, namely: The subdivision is the subdivision of existing lots and the number of lots is not increased. However, the exemption cannot be used if there is an existing dwelling on one of the lots being resubdivided.

The effect of Amendment C48 therefore means that very few opportunities now remain to subdivide land into lots less than 40 ha. Only the resubdivision of existing lots without any increase in the number of lots is permitted and only if there is no existing dwelling.

Amendment C48 South Gippsland Planning Scheme - effect of incorporated document on clause 35.07-3 - resubdivision of existing lots.

Birrell v South Gippsland SC (includes Summary) (Red Dot) [2009] VCAT 1205

1. The decision of the responsible authority is affirmed.
2. In permit application 2008/73 no permit is granted.

Dr R J Sadler of counsel, instructed by Barry Kenna and Associates

Three lot subdivision (resubdivision of existing lots)

Section 77 of the Planning and Environment Act 1987

Environmental Significance Overlay (ESO5 - Areas Susceptible to Erosion)

Total land area 9.4 hectares comprising 4 existing lots:

• Lot 1 - 1.924 hectares
• Lot 2 - 3.018 hectares
  • Lot 3 - 2.469 hectares including existing dwelling
  • Lot 4 - 2.145 hectares (unused road title)

• Lot 1 - 4.455 hectares
• Lot 2 - 4.076 hectares including existing dwelling
• Lot 3 - 1.00 hectares

1. This case involves the interpretation of Amendment C48 to the South Gippsland Planning Scheme and what effect it may have on this application for review. Amendment C48 was a Ministerial planning scheme amendment gazetted on 29 May 2009. According to the Minister's "Reasons for decision to exercise power of intervention under section 20(4) of the Planning and Environment Act 1987"[1]:

[13] Amendment C48 to the South Gippsland Planning Scheme is an intervention that stops permits being granted for dwellings and further subdivision subject to minimum lot sizes to protect rural land in South Gippsland...

1. Changes made to the planning scheme by Amendment C48 are to amend the Schedule to Clause 52.03 (Specific Sites and Exclusions) and the Schedule to Clause 81.01 (Documents incorporated in this scheme) to include an Incorporated Document titled "Shire of South Gippsland Incorporated Document, 2009 - Rural Areas".
2. According to the explanatory report for the amendment:

The amendment prevents permits being granted for dwellings and to create a small lot for an existing dwelling in the Farming Zone.

1. Under the provisions of the Farming Zone in the South Gippsland Planning Scheme, a planning permit is required to subdivide land and each lot must be at least 40 hectares. Pursuant to Clause 35.07-3, a permit may be granted to create a smaller lot if:
   • The subdivision is to create a lot for an existing dwelling. The subdivision must be a two lot subdivision. An agreement under Section 173 of the Act must be entered into with the owner of each lot created which ensures that the land may not be further subdivided so as to create a smaller lot for an existing dwelling. The agreement must be registered on title.
   • The subdivision is the re-subdivision of existing lots and the number of lots is not increased. An agreement under Section 173 of the Act must be entered into with the owner of each lot created which ensures that the land may not be further subdivided so as to increase the number of lots. The agreement must be registered on title.
   • The subdivision is by a public authority or utility service provider to create a lot for a utility installation.
2. In the present case, the permit application was made pursuant to the second of these exemptions. It proposes the resubdivision of 4 existing lots into 3 lots.

1. Clause 52.03 of the planning scheme deals with Specific Sites and Exclusions. It provides that land identified in the schedule to the clause may be used or developed in accordance with the specific controls contained in the incorporated document corresponding to that land. The specific controls may:
   • allow the land to be used or developed in a manner that would otherwise be prohibited or restricted;
   • prohibit or restrict the use or development of the land beyond the controls that may otherwise apply;
   • exclude any other control.
2. The schedule to clause 52.03 now includes all land in the Farming Zone and the incorporated document corresponding to that land is the "Shire of South Gippsland Incorporated Document, 2009 - Rural Areas". This incorporated document provides that:

A permit may not be granted to use land for a dwelling under Section 2 of the Table of uses to Clause 35.07-1.

A permit may not be granted to create a smaller lot for an existing dwelling under Clause 35.07-3.

1. The subject land has a total area of about 9.5 hectares, divided into 4 lots which together form a rough triangle. Two of the sides run alongside Buffalo North Road and Boys Road respectively, with an apex (facing north east) at the intersection of these two roads.
2. Lot 2 is 3.018 hectares and occupies most of the western half of the triangle. Lot 1 (1.191 hectares) and Lot 3 (2.469 hectares) occupy most of the eastern half. Lot 3 contains an existing dwelling. Lot 4 consists of a former road reserve with three "arms" - one arm which divides Lots 2 and 3, one which divides Lots 1 and 3; and one which runs along the southern boundary of Lot 2, dividing it from another larger lot of 75 hectares to the south. Lot 4 has a total area of 2.145 hectares. I was told that the road reserve was transferred to the then owner of the current land in 1914.
3. The proposed plan of subdivision, which formed part of the permit application to council, consists of 3 lots. The proposed Lot 1 comprises what is now essentially Lot 2 plus two of the "arms" of Lot 4. The other two proposed lots create a small triangular Lot 3 in the eastern corner with an area of 1 hectare and Lot 2, which includes the existing dwelling, comprises the balance of the land and is in the middle and has an area of 4.076 hectares.

1. At the hearing, the applicants applied to amend the plans forming part of the permit application. Their first option was a two lot subdivision, which would include what were proposed Lots 2 and 3 into a single Lot 2 of 5.076 hectares and retention of Lot 1 as proposed.
2. An alternative three lot subdivision was also proposed, which would effectively retain existing Lots 1, 2 and 3 but simply include within them the relevant "arms" of Lot 4.
3. This application to amend the permit application plans was submitted at the hearing. It had not been previously served on either the council or other persons as required by the Tribunal's practice note.[2]
4. I have a number of concerns about the proposed substitution of amended plans.

(i) It is not open to a person to make a permit application for alternative options. There is no reason why multiple applications for different options may not be lodged with the council, even at the same time; however, each application must be for a single proposal. Although a proposal may comprise multiple elements requiring permission under multiple controls, all permissions may be applied for in a single application for permit[3], but this does not mean that a single application can be made for alternative proposals. It is a fundamental planning principle that a permit, including its conditions and plans endorsed under it, must be certain in terms of what is allowed. A permit with options would lack this certainty.

(ii) The owner recorded on the titles to Lots 1, 3 and 4 are different to the name of the owner recorded on the title to Lot 2.[4]

(iii) By resolution of the South Gippsland Shire Council on 22 April 2009, the council resolved to sell a strip of land between the eastern boundary of Lot 3 (which contains the existing dwelling) and Boys Road "to the adjoining land owner, for consolidation". This strip of land, which is apparently owned by the council[5], effectively separates Lots 3 from Boys Road. This appears to mean that, at present, Lot 3 is landlocked and has no road abuttal, notwithstanding it is shown on the proposed plan of subdivision to have an abuttal to Boys Road. Only a close scrutiny of the contour and feature plan of the proposed subdivision accompanying the permit application[6] reveals that the title boundary does not physically abut Boys Road even though an abuttal is shown on the proposed plan of subdivision. It is unclear to me whether the proposed new Lots 2 and 3 include the strip of land that the council has resolved to sell to the land owner in its resolution of 22 April 2009. Mr Templar, the town planner appearing on behalf of the council, indicated he had not been previously aware of these facts or the council resolution.

1. Given what seem to me to be some irregularities in the information supplied with the permit application, the uncertainties associated with the alternative options and the lack of notice, I decline to exercise my discretion under clause 64 of Schedule 1 of the Victorian Civil & Administrative Tribunal Act 1998 to amend the permit application.

CAN A PERMIT BE GRANTED FOR A RESUBDIVISION OF EXISTING LOTS?

1. The effect of Amendment C48 is to introduce a specific control that prohibits or restricts the use or development of land in the Farming Zone beyond the controls that otherwise apply by virtue of the zone provisions in clause 35.07.
2. In the case of subdivision, the incorporated document provides that a permit may not be granted to create a smaller lot for an existing dwelling under clause 35.07-3. However, the incorporated document does not refer directly to the second exemption in clause 35.07-3, namely:
   • The subdivision is the resubdivision of existing lots and the number of lots is not increased. ...
3. The council submitted that Amendment C48 was intended to capture the creation of smaller lots involving the resubdivision of existing lots where the number of lots is not increased. Mr Templar submitted that if the authors of the amendment and the incorporated document had intended that new smaller lots could be created by way of resubdivision, they would have said so.
4. There is some support for this view in the Minister's "Reasons for decision to exercise power of intervention under section 20(4) of the Planning and Environment Act 1987" at paragraph 6, which refers to the issuing of permits "for excision of house lots and small lot resubdivisions". However, that intention (if it existed) has not found its way explicitly into either the explanatory report or the wording of the incorporated document. The explanatory report states only that the amendment prevents permits being granted for dwellings and to create a small lot for an existing dwelling in the Farming Zone. It does not state that it prevents permits being granted for the resubdivision of existing lots, and nor does the incorporated document.
5. In my view, where there is no existing dwelling on any of the lots, the incorporated document does not prevent the creation of a smaller lot than 40 hectares where the second exemption in clause 35.07-3 is being relied on, namely:
   • The subdivision is the subdivision of existing lots and the number of lots is not increased. ...
6. The more difficult question is whether this exemption remains unaffected if there is an existing dwelling on one of the lots being resubdivided.

Resubdivision of lots where there is an existing dwelling

1. Although Amendment C48 and the incorporated document do not prohibit a subdivision of lots less than 40 hectares where the subdivision is the resubdivision of existing lots and the number of lots is not increased, the amendment would prevent a permit being granted for a dwelling on any of the new lots created. Each of the lots would be less than 40 hectares and hence a permit to use the land for a dwelling would be required under section 2 of the table of uses to clause 35.07-1. The incorporated document provides that a permit may not be granted for this purpose. In these circumstances, would there be any utility in granting a permit for the resubdivision of existing lots?
2. If the purpose of the resubdivision was to facilitate agricultural production (for example, to sell some land to an adjoining farm owner for a farming use), there would be some utility in the subdivision and this would accord with the stated purpose of the incorporated document, which is:

To provide for the growth and protection of agricultural production and land.

1. Is this utility changed if there is an existing dwelling? Does the second limb of the prohibition in the incorporated document, which provides that a permit may not be granted to create a smaller lot for an existing dwelling under clause 35.07-3, affect the opportunity to rely upon the second exemption in clause 35.07-3 as well as the first exemption? In my view it does for the following reasons.
2. The incorporated document states:

A permit may not be granted to create a smaller lot for an existing dwelling under Clause 35.07-3.

1. These are general words, which do not refer specifically to the first, second or third exemptions (dot points) set out in clause 35.07-3. In my view, the words therefore apply to any circumstance where a smaller lot (than 40 hectares) might be created under the provisions of clause 35.07-3 for an existing dwelling. This might arise under either the first exemption - a two lot subdivision to create a lot for an existing dwelling - or under the second exemption - a resubdivision of existing lots.
2. I place no weight on the fact that the first exemption refers to 'creation' - "[t]he subdivision is to create a lot for an existing dwelling" - whereas the second exemption refers to 'resubdivision' - "[t]he subdivision is the resubdivision of existing lots". Rather, it is the introductory words to the exemptions in clause 35.07-3 which are relevant, namely:

A permit may be granted to create smaller lots if any of the following apply:

1. These words acknowledge that any subdivision under the exemptions to the general rule that each lot must be at least the minimum lot size applicable in the zone will create new lots.
2. Any subdivision of land under the Subdivision Act 1988 creates new lots. There is no separate category of subdivision under this Act known as 'resubdivision'[7]. Subdivision means "the division of land into two or more parts which can be disposed of separately."[8] It does not matter whether more lots are created than initially existed, there are the same number of lots or there are fewer lots. In general terms, unless there is a consolidation of existing lots, any rearrangement of lot boundaries of land constitutes a subdivision.
3. Therefore, any lot less than 40 ha created by a subdivision under either of the exemptions in clause 35.07-3 which contains an existing dwelling would fall squarely within the category of the second limb of the incorporated document. It would "create a smaller lot [i.e. smaller than 40 ha] for an existing dwelling under clause 35.07-3" and under the incorporated document, a permit may not be granted to do this.
4. This raises the issue of whether there is an anomaly in the incorporated document in terms that a smaller lot than 40 ha may be created where there is a resubdivision of existing lots and where there is no existing dwelling, but not if there is an existing dwelling.
5. I do not believe there is an anomaly if regard is had to the purpose of Amendment C48 and the incorporated document, and the Minister's Reasons for introducing the amendment. The measures are intended to prevent the conversion of agricultural land to higher order rural living land use with all the impacts on agriculture that this entails.

1. The effect of Amendment C48 therefore means that very few opportunities now remain to subdivide land into lots less than 40 ha. Only the resubdivision of existing lots without any increase in the number of lots is permitted and only if there is no existing dwelling.
2. In the present case, the presence of an existing dwelling means that the subdivision is prohibited. None of the alternative subdivision proposals would change this fact.[9]
3. For these reasons, I will affirm the council's decision. No permit is granted.

[1] In accordance with the Ministerial Powers of Intervention in Planning and Heritage Matters Practice Note, the Minister for Planning has agreed to make publicly available written reasons for each decision; and provide a report to Parliament at least every 12 months detailing the nature of each intervention. These "Reasons" are made pursuant to this Practice Note.

[2] Clause 11 of practice note PNPE1 - General Procedures (Revised 2009)

[3] Sweetvale Pty Ltd v Victorian Civil & Administrative Tribunal & Ors [2001] VSC 426

[4] The title to Lot 2 TP829162N is in the name of Graham Birrell Investments Pty Ltd whereas the title to Lots 1, 3 and 4 TP829162N are in the names of Graham David Birrell and Kim Marie Birrell. This is not necessarily fatal to a subdivision application but it does complicate things.

[5] Being part of the land described in Certificate of Title Volume 3648 Folio 407 and comprising an area of 5,735m2. Apparently the strip of land is part of a closed road.

[6] Prepared by Ken Richardson Surveyors

[7] See section 4 Subdivision Act 1988

[8] Section 3(1) Subdivision Act 1988

[9] In any event and even if the merits were relevant, I can see no utility in the subdivision and there have been no good reasons advanced by the applicant as to why resubdivision would better enhance the use of this land for primary production than the current configuration of titles. I would also be extremely reluctant to create a new Lot 2 containing an existing dwelling, which, on the face of it, may lack a road frontage and hence be landlocked. I consider there are too many uncertainties regarding the status of the strip of land between existing Lot 3 and Boys Road to countenance this, apart from anything else.