1. Pursuant to section 149A of the Planning and Environment Act 1987, the Tribunal declares that planning permit application No. 2009/36 proposes a subdivision for which a planning permit may be issued under the South Gippsland Planning Scheme as at the date of this order, subject to the exercise of the responsible authority's discretion.

1. Mr Brewster has applied for a planning permit for a two lot subdivision in the Farming Zone of the South Gippsland Planning Scheme. This application is currently being processed by the responsible authority. Mr Brewster also has the benefit of a planning permit allowing part of the land to be used and developed for a dwelling.[1] This permit has not yet been acted upon.
2. He has now applied to the Tribunal for declarations about whether the proposed subdivision is one for which a permit may be granted and about what impact the grant of such a permit might have on the ability to carry out the approved use and development of the land for a dwelling, pursuant to the existing planning permit.
3. This application is made in the wake of the relatively recent amendment to the South Gippsland Planning Scheme on 29 May 2009 (Amendment C48), which drastically reduced opportunities for small lot subdivisions and for the use of small lots for a dwelling.

1. The subject land is currently comprised of Crown Allotment 19C (currently 9.694 hectares) and Crown Allotment 19D (currently 1999 square metres). The application proposes to create two lots - one of 9700 square metres, and a balance lot of 8.924 hectares.
2. The intent of the subdivision is to create a small triangular lot for the use and development of a dwelling in accordance with the existing planning permit, with a larger farming lot.

1. The responsible authority admitted that it had sought legal advice on this issue, but that limited guidance had been provided. It therefore looked to the Tribunal for the 'answers' to the questions raised by the application.
2. The permit applicant submitted that the planning scheme as it stands would not prohibit the proposed subdivision, since it comes within the second dot point of the exemption in clause 35.07-3 (which would otherwise require a lot to be a minimum of 40 hectares to qualify for subdivision):

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.
• . . .

Is the proposed subdivision one for which a planning permit may be granted?

1. Deputy President Gibson has handed down a number of decisions in recent times relating to the application of the current planning scheme provisions post Amendment C48[2] but I do not consider that any are directly on point. I have therefore approached this application from first principles.
2. It is apparent that the subdivision is the re-subdivision of two existing lots and would not increase the number of lots and that there is no existing dwelling on either lot. The applicant is prepared to enter into a section 173 agreement preventing the further subdivision of each lot. Therefore, I consider that the proposal comes within the second dot point in clause 35.07-3 of the planning scheme, being an exemption to the minimum 40 hectare lot size for subdivision.
3. Similarly, there is nothing in the Shire of South Gippsland Incorporated Document, 2009 - Rural Areas[3] that would prohibit the proposed subdivision.
4. It follows that the application can be processed in the ordinary way by the responsible authority. It is conceivable that it may still not support the proposed subdivision on the planning merits, having regard to the fact that a small lot would be created that may impact on the objectives of the Farming Zone and relevant planning policy.
5. However, the permit holder should be keenly aware that if the existing permission for the use and development of a dwelling does not entitle it to construct and use a dwelling on the newly created lot/s, there is no scope to apply for a planning permit for this use and development under the current planning scheme controls.

Would the existing planning permit lawfully be able to be transferred to the proposed smaller lot, if created?

1. In my view, the more challenging question raised by this application is whether the permit allowing the use and development of the land for a dwelling would be able to be acted on if the subdivision was approved.
2. This raises the issue of which land was the subject of the permit allowing the use and development of a dwelling. The permit is expressed to apply to 100 Crightons Road, Koorooman but more particularly, to Crown Allotment 19C Parish of Koorooman. The application plans depict the dwelling on the larger of the two existing lots.
3. I consider that the permit issued in respect of land of a particular size, configuration and characteristics - being the 9.694 hectare lot. The permit will not simply 'transfer' to the newly created, smaller lot, since it will no longer be identified as Lot 19C as defined at the date the permit was granted. I consider that the permit, as issued, will not be capable of being acted upon if the subdivision is carried out.
4. However, in the exercise of my discretion, I am not prepared to make a declaration in relation to this second aspect of the application since it is theoretical at the moment, pending any approval of a permit for subdivision for the current two lot proposal and the creation of two new lots by registration.
5. While it may theoretically be possible for the permit holder to apply to amend the permit to refer to the new lot (both in terms of definition and in terms of the practical size, configuration and characteristics of this new lot), this course of action is fraught with difficulty. These obstacles include:
   • The fact that the amendment would allow a use and development currently prohibited by the planning scheme[4];
   • The transforming nature of the amendment;
   • The fact that the proposed layout and conditions of the permit, particularly requiring all effluent to be contained and treated on site, may no longer be achievable in respect of the smaller lot; and
   • The policy discouragement of the proposed use and development.

1. The two lot subdivision proposed by application No. 2009/36 is not prohibited by the South Gippsland Planning Scheme as at the date of this determination, and is a subdivision for which a permit may issue under the second dot point of the exemption in clause 35.07-3.
2. The responsible authority should continue processing the application for subdivision in the normal way, unless the application is withdrawn.
3. However, I consider that the existing planning permit allowing the use and development of Crown Allotment 19C would not be able to be acted upon in its current form if the subdivision currently proposed was approved and carried out. The land for which the approval has been granted would no longer exist.

[1] Permit No. 2006/125. This permit is still current and will expire on 11 August 2011.

1. [2] Including Couper v South Gippsland SC (Red Dot) [2009] VCAT 1204 and Birrell v South Gippsland SC (Red Dot) [2009] VCAT 1205.

[3] Contained in the schedule to clause 52.03 of the planning scheme.

[4] There are a number of Tribunal and court decisions that address this issue, but this area of law is extremely complex and the application of relevant principles to this fact situation would be unclear.