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. At the hearing, BMF raised a question of law and requested that a legal member determine the question. The Council did not oppose the request. Member Code has since ruled on the question of law and found that the provision to require the lot to be capable of contain a rectangle of 0.8ha with minimum dimensions of 70 metres is ineffective in law.
2. Consequently, the merits of the proposal do not need to assessed against this requirement. My reasons below therefore address whether a permit should issue subject to the broader requirements of the Rural Living Zone and the requirements of the Greater Geelong Planning Scheme.
3. Having considered all submissions and evidence presented with regard to the applicable policies and provisions of the Greater Geelong Planning Scheme, I have decided to set aside the decision of Council and direct that a planning permit issue, subject to conditions in Appendix 1. My reasons follow. A copy of Member Code's ruling is attached as Appendix 2 for reference.

Does the proposed subdivision meet the provisions of the Rural Living Zone.

1. Mr Tobin submitted on behalf of Council that had it not been for the provision of the Rural Living Schedule that Council restricted the subdivision of this land to a rectangle with 70m minimum dimension, it would have formed a view that a planning permit could issue.
2. He submitted this was because:

1. The land meets the minimum lot size[2].

• The land already contains two dwellings. The subdivision would place each dwelling on a separate lot.
  • The land is already an unusual 'L' shaped parcel that made it already unlikely to be used for farming purposes. The longer 'L' section of land would be retained within one lot, that could be used for horse agistment or similar purposes.
  • There were no other specific environmental features or risks that required protection by retaining the lots in larger sizes.
  • Other similar sized lots surrounded the site.
  • Access to both houses would remain from Kildorary Street.
  • No internal or external referral authorities had objected to the proposal.

3. I agree the proposal for two lots meets the general considerations of the Rural Living Zone.
4. Lot 1 to be created meets the minimum lot size. It also has a shape, form and general character similar to nearby lots. Lot 2 has more unusual dimensions, retaining a long 'L' shape of the existing lot. As such the house facing Kildorary Street has frontage of approximately 50m with the new south side boundary being 117m. The western, 'rear' boundary is then 421m long, extending north to the former Geelong / Queenscliff railway line and a water pipe track, where it has a 56m interface to this reserve. Whilst this 'L' shape configuration is not an ideal subdivision form, it is a consequence of the existing lot dimensions. The new subdivision will not alter this "L' form. The area where the new lot will be created has sufficient size and dimension that I find the existing houses can continue to provide rural living in accordance with the purpose of the zone.
5. I therefore will set aside the decision of Council and direct that a planning permit issue.

Subdivision of land into two lots generally in accordance with the endorsed plans.

1. The layout and site dimensions of the proposed subdivision as shown on the endorsed plan(s) shall not be not be modified or altered without the prior consent of the Responsible Authority. There are no requirements to alter or modify the endorsed plan if a plan is certified under the provisions of Subdivision Act 1988 that is generally in accordance with the endorsed plans.
2. Each lot shown on the endorsed plans must be drained to the satisfaction of the responsible authority.
3. Prior to the issue of a Statement of Compliance, vehicle crossings must be provided for each lot to the satisfaction of the responsible authority.
4. The owner of the land must enter into agreements with the relevant servicing authorities for the provision of water supply, drainage, sewerage facilities, electricity, gas and telecommunication services to each lot shown on the endorsed plan in accordance with the authorise requirements and relevant legislation at the time.
5. All existing and proposed easements and sites for existing or required utility services must be set aside in the plan of subdivision and submitted for certification in favour of the relevant authority for which the easement or site is to be created.
6. The plan of subdivision submitted for certification under the Subdivision Act 1988 must be referred to the relevant authority in accordance with Section 8 of that Act.
7. The permit will expire if the subdivision hereby permitted is not certified within two (2) years of the date of this permit and if a statement of compliance is not issued within five (5) years of the date of certification of that plan.

The practice of VCAT is to designate cases of interest as 'Red Dot Decisions'. A summary is published and the reasons why the decision is of interest or significance are identified. The full text of the decision follows. This Red Dot Summary does not form part of the decision or reasons for decision.

Application under section 77 of the Planning and Environment Act 1987 to review the decision by the Greater Geelong City Council to refuse a permit to subdivide land at 421-429 Bellarine Highway, Moolap into two lots of 1.0 ha and 2.3 ha.

REASONS WHY DECISION IS OF INTEREST OR SIGNIFICANCE

PLANNING SCHEME - interpretation or consideration of VPP provision

The schedule to the RLZ may not validly include a requirement that each lot in a subdivision must be capable of containing a rectangle of a specified minimum area or dimensions.

CHANGE TO LEGISLATION OR VPPS - whether change to VPPs or statutory provisions is required or desirable

If the Council wishes to retain the effect of the RLZ schedule, the scheme must be amended.

The decision has potential wider implications for the validity of schedules to a number of zones, overlays and other provisions in a number of schemes. The Department of Planning and Community Development is encouraged to carry out an appropriate audit of schedules in relevant schemes.

The decision finds that part of the schedule to the RLZ in the Greater Geelong Planning Scheme is invalid and has no effect. If the Council wishes to retain the effect of the relevant part of the schedule, the scheme must be amended.

The decision has potential wider implications for the validity of schedules to a number of zones, overlays and other provisions in planning schemes.

BMF Pty Ltd v Greater Geelong CC (includes Summary) (Red Dot) [2011] VCAT 1666

1. On the questions of law raised in this proceeding, I decide as follows -

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 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.[3]

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.[4]

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.[5]

1. Although there are some differences in the drafting of the subdivision provision in the RLZ and DDO,[6] the DDO contemplates subdivision 'requirements' other than 'lot size'.[7] 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 ... .[8]

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] I have considered all submissions presented by the parties although I do not recite all of the contents in these reasons.

1. [2] Being 1 hectare with the average area of lots in a subdivision being at least 1.5 hectares and that the minimum dimension requirement has been determined by Member Code does not apply.

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

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

[6] 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.

[7] 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.

[8] 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.