The Responsible Authority is directed to issue a modified permit in accordance with this order.

Mr Matthew Payne of Urban Edge Consultants Pty Ltd.

Mr John Rantino of Maddocks assisted by Ms Laura Vickers.

1 This is an application to review a condition of a permit for a two lot subdivision at 24 Weeroona Street, Rye under s.80 of the Planning and Environment Act 1987. Condition 8 states:

Prior to the issue of a statement of compliance, the subdivider must pay a public open space contribution to the responsible authority, in accordance with the schedule to clause 52.01 of the planning scheme. Such payment will satisfy in full any public open space requirement under the planning scheme.

2 The site is a corner site abutting Weeroona Street and Bimble Street, Rye with a frontage of 20.12 metres and a sideage of 50.29 metres. It is to be subdivided into two lots having 506 square metres each in area. The area in which the subdivision is to occur has had a number of similar subdivisions in the past of corner lots being subdivided into two and three titles as well as a number of multi unit developments resulting in two and three dwellings per lot. The site contains an existing dwelling towards the front with a number of sheds to the rear as well as a good cover of vegetation in parts. In imposing a condition the responsible authority according to Mr. Rantino looked at clause 52.01 of the scheme which requires that a person must make a contribution for public open space in an amount specified to the schedule of the clause or under s.80 of the Subdivision Act. There are a number of exemptions and the one that has been relied on by the permit applicant is if it subdivides land into two lots and the council considers this unlikely that each lot will be further subdivided.

3 The land is zoned Residential 1 and it is covered by a Design and Development Overlay and a Vegetation Protection Overlay.

4 In opening the batting for the responsible authority, Mr. Rantino referred to decisions of Justice Morris in Fletcher v. Maroondah City Council [2006] VCAT 2205 and Tucker v. Mornington Peninsula Shire Council [2006] VCAT 1780 as well as a number of other cases looking at the same situation. In the Tucker case Senior Member Byard stated that whether there is a condition on a permit requiring a contribution or not by law cl.52.01 says that anyone who proposes to subdivide land must make a contribution for public open space. Therefore in relation to that case in this case following his logic even if I remove the condition there would still be a requirement under cl.52.01 for a contribution. That is of course unless any of the exemptions under cl.52.01 apply to this matter. Mr. Rantino stated still following the Tucker decision where at paragraph 37 Senior Member Byard observed -

Another point to be noted about the exemption which is that "it subdivides land into two lots and the council considers it unlikely that each lot will be further subdivided" is that it refers to whether the council considers that further subdivision is unlikely. That raises a question as to whether the council has the last say on that point, or whether its decision on such a point is subject to review by this Tribunal. I cannot off hand think of any proceeding able to be brought under the Planning and Environment Act 1987, the Subdivision Act, or the Victorian Civil and Administrative Tribunal Act 1998 whereby such a decision by a council can be challenged before the Tribunal, except by means of an application for a declaration.

5 He further continued this in paragraph 38 where he stated -

A declaration in those circumstances would certainly be open, but is not likely to be affective. I do not think it would be open to the Tribunal to merely substitute its own view as to whether further subdivision is likely. I think it could only do so if the decision made by the responsible authority was so unreasonable that no reasonable council in this position, and properly instructed itself, could come to the view in fact reached by the council. It would have to be so called "Wednesbury unreasonable". That is a very high degree of unreasonableness. The Tribunal will not substitute a view contrary to that of the council (if the Tribunal forms such a contrary view) unless it concluded that the council could not reasonably reach the view it did reach.

6 Mr. Rantino adopted this approach and stated that as far as he was concerned this is planning law and it was only available to a presidential member to make a declaration in this case.

7 I am not in agreement with that approach. Having read these decisions I have formed the view that Senior Member Byard did not turn his mind to s.51 of the Victorian Civil and Administrative Tribunal Act 1998. Section 51 entitled functions of Tribunal on Review at sub-section (1) states -

In exercising its review jurisdiction in respect of a decision, the Tribunal -

(a) Has all the functions of a decision maker; and

(b) Has any other function conferred on the Tribunal by or under the enabling enactment; and

(c) Has any functions conferred on the Tribunal by or under this Act, the regulations and the rules.

8 It is quite clear to me that this Tribunal then does have "all of the functions of the decision maker". That is all the functions of the council or the responsible authority whichever it is called, being the same body. Therefore, it is quite clear to me that I have the power to decide whether, when land is subdivided into two lots, I consider it unlikely that each lot will be further subdivided. That is the argument Mr. Payne followed indeed he himself quoted from the Tucker case where at paragraph 34 Mr. Byard stated -

The word "unlikely" does not mean "impossible". It does not necessarily mean that further subdivision is "likely". The notion of "further" subdivision necessarily involves a consideration of future possibilities and whether such possible subdivision is "unlikely".

9 Mr. Rantino discounted the fact that there is an existing dwelling on proposed lot 1 as being a constraint to further subdivision because of the economic circumstances may change as may planning and subdivision requirements. He referred to the sizes of the proposed lots that could possibly be re-subdivided because there is nothing in the zone provisions, cl.56, the DDO or the VPO to stop further subdivision.

10 A contrary view was put by Mr. Payne. He stated that nowhere in the area had there been any attempt to further subdivide any of the two lot subdivisions the greatest increase in density were a number of three unit developments that started from scratch. He further stated that because of the policies and provisions of both the DDO and the VPO any further subdivision of these lots was unlikely. Further, the neighbourhood character was one in which further subdivision would be unlikely.

11 He then stated that the present owners had recently renovated and refurbished the existing dwelling and were in the process of putting it on the market as a total package on lot 1. He did not envisage that there was any likelihood that this lot would be further subdivided. In relation to lot 2, because of the amount of vegetation cover under the Vegetation Protection Overlay policies he believed that the responsible authority would affectively discourage any likelihood of further subdivision of that lot.

12 I note that Mr. Payne also referred to the fact that a planning contribution is not a land tax but a requirement of the planning process which is based on fairness, equity and reasonableness. Mr. Payne then went through the planning policies and provisions of the scheme particularly in relation to the Residential 1 zone and cl.56 of the scheme. He then referred to the schedule to Residential 1 zone where a permit is required to construct and extend a dwelling between having areas between 300 and 500 square metres. Any subdivision proposal for such would have to be accompanied by a development proposal and would have to meet the requirements of both clauses 55 and 56 including providing building envelopes on lots. He then demonstrated that there would not be simple to develop the appropriate building envelope on the smaller lots and that he considered "unlikely that the council would support the principle of providing lot sizes of less than 300 square metres in this locality". This is because if would be out of context with the prevailing pattern. He further stated that it would be any such developments "would also be considered inappropriate with regard to the objectives of the DDO and VPO which seek to ensure that buildings/subdivision is in keeping with the streetscape and the vegetation loss is minimised.

13 In my experience it has been a long held view in this Tribunal that a two lot residential subdivision of such dimensions in a place like Rye, set back as it is from the beach front, would be unlikely to have each lot further subdivided more likely that a valuable single dwelling would be built on the second lot.

14 Leaving aside any legal arguments which I was not requested to determine, in the planning context it is my view that having regard to the policies and provisions of the Mornington Peninsula planning scheme it is unlikely that a responsible authority adjudging an application such as this fairly and reasonably in regard to its own provisions would form the view that further subdivision of these two lots is likely. Certainly, acting as the responsible authority under s.51(1A) of the VCAT Act I consider it so. Therefore, the condition will be deleted.