The responsible authority is directed to issue an amended permit P06/3147 with Condition 14 removed.

1. Coastal Surveys applied to Mornington Peninsula Shire Council to amend Permit 06/3147 for a two lot subdivision at 28 Vale Street Mornington which would remove Condition 14 from the permit. The condition states:
   1. 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. Normally this matter could have been deal with as a review of Condition 14 under Section 80 of the Planning and Environment Act 1987 however it appears the application was out of time and subsequently the applicant lodged a new planning application to amend the existing permit.
3. The applicant claimed that Condition 14 is inappropriate and unfair because a two lot subdivision is exempt from a 5% Open Space Contribution on the basis that this is a two lot subdivision and it is unlikely that each lot will be further subdivided. (Tribunal emphasis)
4. Mr Easton argued there is essentially two tests to be made in this review, the first is to determine whether each of the lots are likely to be further subdivided. He also claimed that if one of the lots cannot be further subdivided then I must find that the exemption in Clause 52.01 then applies in favour of his client.
5. Mr Newman on the other hand argued that Lot 1 is capable of further subdivision and therefore the exemption is not applicable so that Condition 14, which is consistent with the provisions of Clause 52.01, must apply.

1. Mornington Peninsula Shire Council issued a permit for a two lot subdivision on 19 September 2007. The permit contained 14 conditions and the subdivision itself produces two lots, Lot 1 is 615 square metres and contains an existing dwelling whilst Lot 2 will be 322 square metres and will provide for a building envelope plan for a dwelling.
2. Mr Easton advised that his client was prepared to have a Section 173 Agreement apply to the land which would prevent further subdivision of the land. He also tabled a revised plan of subdivision that he was prepared to seek substitution which would in effect place a restriction on title preventing further subdivision of Lots 1 and 2 in lieu of a Section 173 Agreement. The placement of a Section 173 Agreement to limit further subdivision has occurred Mornington and throughout Metropolitan Melbourne[1].

1. The review site (pre-subdivision) comprises a rectangular parcel of land with a frontage of 18.29 metres and a depth of 51.21 metres. The site area is 937 square metres.
2. It is located on the north-east side of Vale Street between Beatty Parade and Tanti Avenue in Mornington. It is an area that contains a uniform subdivision created in 1913 with either detached or medium density housing. Housing comprises detached dwellings on the original lots or relatively small scale medium housing comprising two or three dwellings.
3. The Mornington Primary School is located opposite.
4. The Mornington Activity Centre about 200 metres to the west is of a much greater scale and intensity of use and development there are planning controls and policies which encourage this higher form of intensity

1. The subject site is located in a Residential 1 Zone under the Mornington Peninsula Planning Scheme. The zone anticipates a variety of dwelling types to suit local needs. This residential area, located close to the Activity Centre, has experienced medium density housing in recent years and this consistent with State and Local planning policies that encourage higher density housing development in and around activity centres like Mornington[2].
2. The relevant planning provision concerning open space contributions for subdivision is Clause 52.01 of the Planning Scheme, it states:

52.01 PUBLIC OPEN SPACE CONTRIBUTION AND SUBDIVISION

A person who proposes to subdivide land must make a contribution to the council for public open space in an amount specified in the schedule to this clause (being a percentage of the land intended to be used for residential, industrial or commercial purposes, or a percentage of the site value of such land, or a combination of both). If no amount is specified, a contribution for public open space may still be required under Section 18 of the Subdivision Act 1988.

A public open space contribution may be made only once for any of the land to be subdivided ...

A subdivision is exempt from a public open space requirement, in accordance with Section 18(8) of the Subdivision Act 1988, if (among other things):

• It subdivides land into two lots and the council considers it unlikely that each lot will be further subdivided.

The schedule to clause 52.01 specifies that all residential subdivision (other than within the area affected by Development Plan Overlay Schedule 1) are required to make a 5% public open space contribution.

Condition 14 therefore replicates much of this provision.

1. There is no discretion about whether less than 5% is appropriate owing to the manner in which Clause 52.01 and the Schedule has been framed.

1. The primary issue is to determine whether the Public Open Space Contribution is exempt from this two lot subdivision on the basis that further subdivision is unlikely. There is a secondary issue raised by Mr Easton concerning whether reference to each lot means reference to every lot and so if it is found that one of the lots is incapable of further subdivision then does this mean that all land in the subdivision or the exemption apply to all of the subdivision.
2. There are tests to be applied to the appropriateness and reasonableness of the suggested alternative condition that would place a restriction on further subdivision of the land forever.

1. At the conclusion of the review hearing I indicated to both parties that my "gut feel" about the original condition was that it could be replaced with the Section 173 Agreement because that would prevent further subdivision of the land and therefore put the matter beyond all doubt about the likelihood of any further subdivision of the land.
2. Both Mr Newman and Mr Easton referred to a number of relevant cases recently determined by the Tribunal, and I consider their summaries and debate were of valuable contribution to the determination in this matter. What was clearly shown in each of the cases cited were particular circumstances of the application or difference to this application that warranted individual assessment of the merits of the case[3].
3. I advised the parties that I wished to read each of the Tribunal decisions cited and reflect on the various submissions before finalising my decision.
4. I examined each of the decisions and the planning policy framework and I subsequently undertook an inspection of the exterior of the property and the neighbourhood. I have subsequently concluded that it is appropriate to amend the permit and remove Condition 14. I also consider it is unnecessary, and possibly inappropriate to replace it with a requirement for a Section 173 Agreement or restriction on title preventing further subdivision.

1. I consider that further subdivision of lot 1 I unlikely in the foreseeable future because it would not be easy to subdivide the land further without substantial works including demolition and redevelopment of the front dwelling and due to the form of existing development on the land and in close proximity to it. Whilst I acknowledge that further subdivision of Lot 1 in the long term may be possible, that is not the test in the planning scheme.
2. Mr Easton was of the view that the Scott decision was on all fours with this application. In many respects it is similar and the test is the same but there is some subtle difference. This site is located within walking distance of an activity centre and State and Local planning policies encourage a higher order of development compared to some other more conventional residential subdivisions that are more remote from activity centres or have additional planning controls, such as overlays or covenants[4] that limit development and possibly subdivision.
3. I consider Mr Hewet's comments at Paragraph 25 of Scott [5] is apt where he stated :

The possibility of the land being further subdivided is one thing, but the likelihood of it occurring is an entirely different matter and that is the test which needs to be applied to determine whether the exemption under Clause 52.01 is applicable.

1. The two lot subdivision is consistent with some other two lot subdivisions that have occurred in this residential neighbourhood. Whilst there is evidence of three lot subdivisions in the neighbourhood I doubt that a similar subdivision could easily be achieved, and therefore it is unlikely having regard to the configuration of Lot 2 and its building envelope, the placement and extent of development on the land, and to a lesser degree, the alterations that have been approved for it.
2. I acknowledge the commentary of Member Komesaroff in Thompson[6] particularly at paragraphs 18 and 19. That site was much larger than this site and its context, the least of which is its location on a metropolitan arterial road is different. Whilst Ms Komesaroff discounted the relevance of the owner's plans to undertake alterations and extension as a subjective matter I have approached my decision from a practical application of site context and subdivision and development trends in this neighbourhood which may influence a decision about the likelihood of further subdivision in this neighbourhood.
3. I consider that further subdivision of Lot 2 is more remote than it would be for Lot 1 and therefore meets the test of unlikely. It is a much smaller lot and will have a building envelope designed to suit one dwelling.

1. As I have found that Lot 1is unlikely to be further subdivided and the likelihood that Lot 2 is even more remote I consider there is no need to make a distinction between whether Lots 1 or 2 can be further subdivided.

Is it appropriate to place a condition on the title that would limit further subdivision.

1. I am reluctant to impose a condition on the permit the requires a Section 173 Agreement or imposes a notation on plan that restricts any further subdivision of land because:
   • It places a separate layer of planning control on the land for no specific planning purpose.
   • Placing a control on the title forever purely to avoid the payment of an open space contribution seems a poor planning outcome.
   • It potentially leads to a permanent restriction on subdivision of the land.
   • It seems contrary to the thrust of State and Local urban consolidation policy close proximity to a vibrant activity centre as identified in Clause 12 of the planning scheme. Whilst I consider subdivision of the land is unlikely under current planning circumstances, that is not to say that in the future this part of Mornington may undergo change in response to urban consolidation initiatives that would render it more desirable for redevelopment and/or resubdivision.
2. As I read the Section 173 Agreement there is no prohibition on further development of the land. It would seem ironic to see a Section 173 Agreement or a restriction on further subdivision, but in the future redevelopment take place in response to urban consolidation policies. In many respects this type of condition is a short-sighted response and seems to impose an unnecessary constraint on part or all of the land.

1. I was advised that the responsible authority had issued permits for subdivision with similar conditions limiting further subdivision at the direction of the Tribunal following Mediation. It is not possible to determine the merits of either of those cases because they were settled at mediation and only the parties, including the council are privy to the reasons for the settlement.

1. Mr Newman's argued that a decision on subdivision should not be "deferred" to a further time and he referred the Tucker decision[7]. In that case the site was a substantial landholding, and the applicants had attempted to defer payment or defer decisions on future open space contributions because the site was capable of further subdivision. I agree with Senior Member Byard that it would be inappropriate to defer decisions about contributions deriving from a current subdivision application. However, that is not the same situation in this application because this is a conventional dual occupancy type subdivision and the wording of Clause 52.01 contemplates an exemption to certain kinds of two lot subdivisions.
2. It may be that in the distant future the land is redeveloped with a higher form of development and a subsequent application is made for subdivision. However it is very difficult to anticipate with any confidence what that outcome will be, if it does occur. Similarly, any determination on an open space contribution would seem to be more appropriate if, and when, that development and subdivision occurred.

1. For the abovementioned reasons the Council is directed to issue an amended permit without Condition 14. I consider that further subdivision of Lots 1 and 2 is unlikely, and I consider that it would be inappropriate to impose a condition restricting further subdivision of this land having regard to State and Local Planning Policy.

[1]See Scott v Maroondah City Council [2007] VCAT 1474 which the Tribunal has been advised is the subject of a Supreme Court appeal

[2] See Clause 12.01 of the State Planning Policy Framework

[3] See Graham C Fletcher v Maroondah CC [2006] VCAT 2205 and Tucker v Mornington SC No.3 [2006] VCAT 1780 G & L Thompson v Maroondah CC [2007] VCAT 2455 and J & J Van Der Zweep v Maroondah CC [2007] VCAT 1806, and Scott v Maroondah CC [2007] VCAT 1474

[4] See J & J Van de Zweep v Maroondah CC [2007]VCAT 1474

[5] Scott v Maroondah C C{2007}VCAT 1474

[6] G and L Thompson v Maroondah CC and Yarra Valley Water and Others [2007] VCAT 2455

[7]Tucker v Mornington Peninsula SC No.3 [2006] VCAT 1780