Mr Peter Hobbs, town planner of the City of Casey, appeared for the responsible authority. He presented written and oral submissions.

Mr Henry Jackson, barrister, appeared on the instructions of his client for the applicant for review Susan Bonella. He made oral submissions.

Various plans, photographs and other documents were tendered in evidence. The evidence and submissions in documentary form have been retained on the file of the tribunal.

Application under s 77 of the Planning and Environment Act 1987 for review of a decision of the Responsible Authority to refuse to grant a permit.

Partly in an Urban Floodway zone and partly in a Low Density Residential zone and subject to a Land Subject to Inundation Overlay under Casey Planning Scheme.

The subdivision is prohibited pursuant to Clause 32.03-3 of the Casey Planning Scheme as the proposed Lot 2 does not meet the minimum size requirement of 0.4 ha within the Low Density Residential Zone.

The proposed subdivision is allowable under the provisions of the Casey Planning Scheme (in accordance with the Low Density Residential Zone and Urban Floodway Zone).

1. The dispute so far is as to whether the two lot subdivision that is proposed can be granted under the provisions of the Casey Planning Scheme, or whether, on the contrary, such a subdivision is prohibited as a matter of law.
2. The responsible authority has taken the view, supported by some legal advice it obtained from its solicitors, that the proposal is prohibited. It has refused the proposal on that basis, and not proceeded to make a determination in relation to the planning merits of the proposal.

1. This case arises in unusual and somewhat complex circumstances. The most unusual feature is that the allotment now sought to be subdivided does not yet exist as an allotment of land. That unusual circumstance arises from the following history.
2. The land now sought to be subdivided was part of a parcel of land comprised of lots 2 and 3 on Plan of Subdivision 446131W. This parcel of the two allotments is approximately rectangular in shape having a frontage to the northern side of the Belgrave-Hallam Road.
3. As I understand it, a planning permit has been obtained for a realignment of the boundary between those two lots. Planning permission for a subdivision to achieve this realignment was granted by the responsible authority in permit P640/06A which was issued on 2 November 2006. The permit was subsequently amended on 22 January 2007, but I am not here concerned with the amendment.
4. A proposed plan for this subdivision under that permit has been approved and endorsed by the responsible authority on 24 January 2007. This re-subdivision would create two approximately rectangular allotments, side by side, and with each having a frontage to the northern side of the Belgrave-Hallam Road. The two allotments are denoted as A and B. Lot A, the western one, would have an area of 1.525 ha whereas lot B, the eastern one, would have an area of 2.342 ha.
5. There is a dwelling on the parcel of land. Pursuant to the re-subdivision, it would be situated on lot B, together with some sheds. There is no dwelling on the land that would become lot A although there is a stable and a barn on that part of the land.
6. Although planning permission has been obtained for this realignment subdivision, the proposed subdivision has not been lodged at the Titles Office so that legally, the new lots A and B have yet to be created. This current case concerns the proposed lot A, the western one of the two.
7. In spite of the fact that lot B has not yet been created legally, the responsible authority has entertained and, indeed approved, a permit for its further subdivision into two lots. It has sought to deal with the anomaly of the land to be subdivided not yet being legally created allotment by the insertion of a condition reading:
   1. Prior to certification of the Plan of Subdivision the subdivision permitted by Planning Permit P640/06A must be registered at the Titles Office.
8. That proposed lot B and the permit for its further subdivision is not before me. However, in relation to proposed lot A, a similar device to the insertion of condition 4 has been contemplated by the applicant and the responsible authority.

Proposed Lot A, the land for which further subdivision is now sought

1. As already noted, proposed lot A is approximately rectangular in shape. It is rather a long thin rectangle with a frontage to the northern side of the Belgrave-Hallam Road. It has an area of approximately 1.469 ha[1].
2. The proposed lot A is in two different zones under the Planning Scheme. The boundary between the two zones runs approximately east to east, approximately half way between its northern and southern boundaries. The northern "half" is in the Urban Floodway zone. It has an area of approximately 7,550 m2. The southern "half", located in the Low Density Residential zone, has an area of approximately 7,140 m2. This southern half includes the frontage to the Belgrave-Hallam Road. It is that frontage which gives access to all of the land.

1. It is proposed to subdivide proposed lot A into two allotments. The first of them would be lot 1 of 4,030 m2 located at the southern end of proposed lot A and occupying most of the road frontage. In fact its frontage to the Belgrave-Hallam Road would be the whole of the frontage save for a strip of land 6.03 metres wide on the eastern side of lot 1 and running from the road along the eastern boundary of lot 1 to reach the main area of lot 2.
2. Lot 2 would be shaped like a meat cleaver with the handle 6.03 metres wide providing space for a driveway between the road and the head of the meat cleaver.
3. The head of the meat cleaver would be constituted by all of the land north of the zone boundary and amounting to 7,550 m2 located in the Urban Floodway zone. The balance of the head of the cleaver would be 2,600 m2 in Low Density Residential zone located south of the zone boundary but north of the northern boundary of the proposed new lot 1. The total area of proposed lot 2 in the Low Density Residential zone would be that 2,600 m2 plus 510 m2 for the driveway "handle". This would give proposed lot 2 an area of 1.066 ha of which 7,550 m2 would be in the Urban Floodway zone and 3,111 m2 would be in the Low Density Residential zone.

1. Under the zone provisions for each of these zones, planning permission is required for subdivision. The relevant provisions for each zone in relation to subdivision contain some constraints. The responsible authority has taken the view that the constraints in relation to the Low Density Residential zone prohibit the creation of proposed lot 2. The particular constraint it is concerned with relates to the minimum area of lots to be created.
2. The subdivision provisions in relation to the Low Density Residential zone are found in cl 32.03-3 of the Planning Scheme. These provisions firstly provide that a permit is required for subdivision. They then go on to say that each lot must be a specified area. The area is as specified in the schedule for the zone, or if none is specified, then the area must be at least 0.4 ha.
3. In relation to this case the schedule does not specify a minimum area so that the applicable minimum is 0.4 ha.
4. This minimum area for lot size is subject to a couple of exceptions that can allow a lot of less than 0.4 ha in certain circumstances, but it is common ground that those circumstances do not apply to this case.
5. It is clear that proposed lot 2 would have an area of 1.066 ha. That exceeds 0.4 ha as a minimum lot size. On the face of it, lot 2 would be acceptable and would not fall foul of the provision in relation to minimum lot areas.
6. The point taken by the responsible authority is that, although the total area of proposed lot 2 is 1.066 ha, 7,550 m2 of that area is located in the Urban Floodway zone so that only 3,110 m2 would be in the Low Density Residential zone. It takes the view that lot 2 would have to have an area of at least 0.4 ha, but also that the whole of the 0.4 ha would have to be in the Low Density Residential zone. It considers that 3,110 m2 is not enough, and that the deficiency to reach 0.4 ha cannot be made up with land in the adjoining Urban Floodway zone.
7. Clause 32.03-3 requires that the lot created must be at least 0.4 ha, but does not specify that all of that area has to be in the Low Density Residential zone.
8. It seems to me that the interpretation or application suggested by the responsible authority would impose an additional restriction on the landowner beyond that imposed by the actual words of cl 32.03-3. I would have thought that such additional restriction would require express words or at least a necessary implication. I do not think that either is available to support the view adopted by the responsible authority in this case.
9. I was referred to several previous decisions of the tribunal, including one of my own. None of those cases deal with the point raised in this case by the approach adopted by the responsible authority. Ultimately they are not authorities in relation to the point now to be decided, and do not really assist me in deciding it. Rather, they do deal with other aspects of the question of subdividing land that is in more than one zone. Accordingly, it may be useful if I deal briefly with the circumstances that distinguish those cases from this one. However, before doing so I will refer to the subdivision provisions that apply to the Urban Floodway zone.
10. The Urban Floodway zone subdivision provisions appear in cl 37.03-3 of the Planning Scheme. That clause also requires planning permission for the subdivision of land, but it does not impose a minimum area in relation to lots to be created by such a subdivision. It differs from the low density residential zone provisions in that respect, but imposes other constraints though not relevant for current purposes except for the one that provides that a permit may only be granted to subdivide land in the Urban Floodway zone if:

The subdivision does not create any new lots, which are entirely within this zone.

1. As I read it this means that a new lot can only be created in the Urban Floodway zone provided that it contains some land in at least one other zone. That constraint would, of course, be satisfied in relation to the current proposal. Proposed lot 2 would have over 3,000 m2 which is in the Low Density Residential zone.
2. The previous cases that I was referred to are the following:

Miller & Merrigan Pty Ltd v Yarra Ranges SC[3]

1. The Miller case concerned land in two zones where it was proposed to subdivide into two lots along the zone boundary. Apparently, such a subdivision would be contrary to the written provisions in the planning scheme but the tribunal appears to have read in a notion that there is a further exception allowing a lot below the specified minimum size if the subdivision is to be along zone boundaries. The reasons given in that case are very short and are expressed to be extempore reasons given orally at the hearing although subsequently revised. I doubt that the full reasoning can be said to appear in the brief revised paragraphs. There is reference to the purposive approach to statutory interpretation, but there is no full account as to why the plain words of the planning scheme should be departed from or suggestion that there is ambiguity or uncertainty in relation to the words that do appear. The decision was that the proposed subdivision in that case was lawfully possible, and permission was granted.
2. In Guastella's case, the decision in Miller was adopted and followed without really adding anything in the way of reasons support for that decision.
3. In Leigh, there was careful consideration and analysis of Miller and Guastella, as well as Rumpf and my own decision in Siomos. I think it can be fairly said that the decision in Leigh respectfully disagrees with Miller and Guastella on the basis of the reasoning set out in Leigh's case and summed up in paragraph [29] of those reasons. My tentative view would be to say that the reasoning in Leigh is more persuasive. Ultimately, I do not need to determine the point about subdivision along zone boundaries, as that is not proposed in relation to the present case.
4. In Siomos, I considered the question of whether it was sufficient, if a lot was being created by a subdivision containing land from more than one zone, for the lot to satisfy the minimum lot requirements of just one of those zones, or whether, on the other hand, it is required to satisfy the minimum lot size requirements for each of the two zones. I took the later view, on the basis of the Victoria Planning Provision planning schemes as they now stand, whatever may have been provided to the contrary in earlier planning schemes. In this respect, I think the view that I adopted there has been generally supported by, or at least consistent with, the other cases referred to. I am content to abide with what I said in that case.
5. Proposed lot 2 in the currently proposed subdivision would satisfy everything that I said in Siomos, and I cannot see that it is contrary to any provisions in the planning scheme; not, at any rate, any that I recall or which I have been referred.
6. I think that it goes beyond Siomos, and beyond the provisions of the planning scheme, to impose an additional restriction to say that, by virtue of the Low Density Residential zone provisions in relation to subdivision, the minimum lot size must not only be 0.4 ha but that the whole of that 0.4 ha must be located within the Low Density Residential zone.
7. I do not think that what I said in Siomos justifies the imposition of this additional constraint, and I am not satisfied that there is anything else that imposes such a further constraint by express words or by necessary implication or otherwise.
8. Where the planning scheme is silent on a point, and in the absence of necessary implication or some sound reason, an additional burden should not be read into a provision. If such a further constraint is intended, it should appear in the planning scheme. Mr Jackson, the barrister who appeared on behalf of the applicant, referred me to the case of Warrnambool City Council v Simpson[8] in this connection. It was not that he sought to rely upon any reasoning in that case. He referred to it simply to show a provision that once appeared in the Warrnambool Planning Scheme[9] at cl 37.03-3 which dealt specifically with such the question where that was intended. The decision in that case recites the then provision from cl 37.03-3 of the Warrnambool Planning Scheme as it then appeared in the following terms:

If land is partly within this zone, the area of each lot created must not be less than the minimum specified for the zone or zones in which the land is situated and least 75 percent of the area of each lot created must be outside this zone.

1. The Simpson case concerned the floodway zone. Apparently the provision then was similar to the one that I have quoted above in relation to Urban Floodway zone subdivisions as requiring land outside the zone to be included in each lot, but goes on to specify a percentage.
2. As I say, Mr Jackson is referring to this for no other purpose than to support the notion that planning scheme provisions do, can and should state their constraints and that this is just an illustrative example of that being done.
3. I do not doubt that the responsible authority, in refusing this application on the legal point that it did, was conscientiously seeking to carry out its duties as responsible authority in a proper way. I note that it sought legal advice on the point, and that it acted in accordance with that advice. Nevertheless, for the reasons given above, I think that the responsible authority was mistaken in deciding that this proposed subdivision would be prohibited on the basis that lot 2, though it contains more than 0.4 ha and that such a subdivision would be invalid because there is not 0.4 ha of proposed lot 2 to be contained within Low Density Residential zone land. I do not think that the proposal is prohibited for that reason.
4. In the circumstances, the responsible authority has not yet made a determination on the planning merits of this proposal. It was indicated on behalf of the responsible authority that there were some issues in that respect that call for consideration. It may have determined them in favour of the applicant. If not the applicant would have an opportunity to review those planning merits pursuant to s 77 of the Planning and Environment Act 1987. In the circumstances, I think it is appropriate to remit this case to the responsible authority for further consideration in accordance with what I have said here pursuant to s 51 (2) (d) of the Victorian Civil and Administrative Tribunal Act 1998.
5. It provides that the tribunal, in determining a proceeding to review a decision of the responsible authority may:
   • (d) set aside the decision under review and remit a matter for re-consideration by the decision maker in accordance with any directions or recommendations of the Tribunal.

6. The possibility of dealing with the case pursuant to that provision was discussed in the course of the hearing and agreed to by the parties. I will make an order accordingly.

[1] Areas on different plans vary a little, but these variations are not material for the purposes of what I am called upon to deal with at this stage.

[3] [2003] VCAT 1939

[4] [2007] VCAT 276

[5] [2007] VCAT 100

[6] [2007] VCAT 1823

[7] [2008] VCAT 1335

[9] At that stage a pre Victoria Planning Provisions planning scheme