Question 2 - If the provision is effective in law, is it a mandatory or discretionary provision?

Question 3 - If the provision is both effective in law and a mandatory provision, does clause 35.03-3 of the scheme nevertheless provide discretion for the grant of a permit in respect of this permit application?

1. BMF Pty Ltd applied to the Greater Geelong City Council for a permit to subdivide the subject land into two lots of 1.0 ha and 2.3 ha. The Council refused a permit on one ground:

The subdivision does not meet the requirements of the Schedule to the Rural Living Zone which sets out that 'each lot must also be capable of containing a rectangle of 0.8 ha with minimum dimensions of 70 metres'.

1. BMF has applied to the Tribunal to review the decision of the Council.
2. At the hearing before Member Glynn on 9 August 2011, BMF raised a question of law and requested that a legal member determine the question. I am a legal member of the Tribunal assigned to the Planning and Environment List and was nominated to determine the question.
3. The questions of law are:

Question 1 - Is the provision '[e]ach each lot must also be capable of containing a rectangle of 0.8 ha with minimum dimensions of 70 metres' in the schedule to the Rural Living Zone in the Greater Geelong Planning Scheme ineffective in law?

Question 2 - If the provision is effective in law, is it a mandatory or discretionary provision?

Question 3 - If the provision is a mandatory provision, does clause 35.03-3 of the scheme nevertheless provide discretion for the grant of a permit in respect of this permit application?

1. Both parties made oral and written submissions about these questions.

1. The subject land is zoned Rural Living (RLZ) in the Greater Geelong Planning Scheme (the scheme). A purpose of the RLZ is to provide for residential use in a rural environment. In the RLZ:

Each lot must be at least the area specified for the land in a schedule to this zone. If no area is specified, each lot must be at least 8 hectares.

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

• 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 number of lots is no more than the number the land could be subdivided into in accordance with a schedule to this zone. 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.[1]

1. The schedule contains three columns.
2. Column 1 has no heading but specifies a number of different items, the first of which is 'Minimum subdivision area (hectares)'.
3. Column 2 is headed 'Land' and, for the first item, states 'All land'. Hence, the first item in the schedule applies to the subject land.
4. Column 3 is headed 'Area/Dimensions/Distance' and, for the first item, states:

1 hectare with the average area of lots in a subdivision being at least 1.5 hectares. For the purpose of calculating average area, all lots exceeding 3.0 hectares must be considered as 3.0 hectares (and the balance of a staged subdivision should be excluded). Each lot must also be capable of containing a rectangle of 0.8 hectares with minimum dimensions of 70 metres

1. A schedule to a zone, overlay or other provision in the Victoria Planning Provisions does not operate as an independent control. It provides optional additional provisions for the zone, overlay or other provision. The Tribunal has accordingly held, when considering a schedule to a development plan overlay, that:

A schedule to an overlay is subordinate to the overlay itself and may only provide for what is authorised by the overlay itself. The schedule cannot impose controls or require things that go beyond what are provided for in the overlay. It cannot exceed the power of the overlay.[2]

1. These observations are consistent with the effect of section 22 of the Interpretation of Legislation Act 1984.
2. What is authorised by the RLZ subdivision provision? In my opinion, it authorises a minimum area to be specified in a schedule that a lot 'must be' in a subdivision. This is confirmed by the third sentence of the provision. It provides that '[i]f no area is specified, each lot must be at least 8 hectares'. Therefore, the RLZ subdivision provision only authorises a mandatory minimum area for a lot to be specified in a schedule.
3. The Council's first submission was that 'an area' in the RLZ subdivision provision could be an area or areas, having regard to the singular or plural principle in section 37(c) of the Interpretation of Legislation Act 1984. This principle applies unless the contrary intention appears.
4. In my opinion, there is a contrary intention evident in the drafting of the RLZ subdivision provision. It states the minimum area for a lot must 'be' the area specified in the schedule. A lot cannot 'be' more than one 'minimum' area.
5. The Council's second submission was that the requirement that 'each lot must also be capable of containing a rectangle of 0.8 hectares with minimum dimensions of 70 metres' is a logical and directly relevant part of the concept of a minimum area for a lot. A minimum dimension of one side of a rectangle that must fit inside a lot logically and directly relates to and is one aspect of minimum area.
6. I do not agree. A requirement that a lot contain a rectangle of a minimum area and a minimum side dimension does not directly relate to the minimum area of the lot. Rather, it directly relates to a requirement for the 'shape' of the lot. In effect, it is a requirement that a rectangle or shape of at least 70 m by 114 m must be able to fit inside the lot.
7. Other provisions of the scheme confirm my conclusion. The subdivision provision in the Design and Development Overlay (DDO) relevantly provides:

This does not apply if a schedule to this overlay specifically states that a permit is not required.

Subdivision must occur in accordance with any lot size or other requirement specified in a schedule to this overlay.[3]

1. Although there are some differences in the drafting of the subdivision provision in the RLZ and DDO,[4] the DDO contemplates subdivision 'requirements' other than 'lot size'.[5] The RLZ does not contemplate other requirements. A requirement that a lot be a certain shape so that it may contain a rectangle of specified dimensions and area is a 'requirement' other than a minimum area.
2. In conclusion, the relevant provision of the schedule is ineffective in law.
3. The genesis of the schedule may lie in prior schemes for the Geelong Region. One of those schemes provided:

• Be at least 1 hectare.
• Be capable of containing a rectangle of 0.8 hectare with minimum dimension of 70 metres.
• Have a frontage of at least ... 200 metres to existing ... Arterial Road [and] 60 metres to any other road.
• If abutting an ... Arterial Road must be at least 1.5 hectares.

The average area of lots in the subdivision must be at least 1.5 hectares.

The frontage requirements do not apply to future roads ... .[6]

1. This former provision may have been redrafted and included in the schedule to the RLZ, without careful consideration of whether the inclusion was effective in law. The parties informed me that since the commencement of the scheme, there has been no question raised about the validity of the schedule.

1. If the Council wishes to retain the effect of the invalid part of the schedule, I encourage it to consider what amendments may be needed to the scheme to enable broader subdivision requirements to apply to land in the RLZ. Possible amendments may include the introduction of a DDO or the amendment of the RLZ subdivision provision. As the RLZ is a provision of the Victoria Planning Provisions, the Council would need to discuss this option with the Department of Planning and Community Development.
2. There are potential wider implications of this decision for the validity of schedules to a number of zones, overlays and other provisions in schemes. I encourage the Department to consider carrying out an appropriate audit of relevant schemes.

[1] The scheme cl 35.03-3 (the 'RLZ subdivision provision').

[2] Cameron Manor Pty Ltd v Mornington Peninsula SC [2007] VCAT 1822 at [46].

[4] For example, the RLZ refers to a minimum 'area' of a lot and the DDO refers to a minimum lot 'size'. This difference is not critical.

[5] In fact, on examination of DDO schedules 12 and 18, there are requirements relating to the maximum number of lots that may be created in specified subdivisions, and to the 'aspect' of lots.

[6] Bannockburn Planning Scheme cl 44-2 (as at 1993) in relation to the Rural Residential Zone. It is likely this clause was replicated in the Bellarine Planning Scheme (now also repealed), affecting the subject land, at the same time.