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.