1. Pursuant to section 127 and clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 the permit application and application for review are amended by changing the name of the permit applicant and applicant for review to:

1. The decision of the Responsible Authority is varied.
2. The Tribunal directs that Permit No. PLN A00667/12 must contain the conditions set out in the Permit PLN A00667/12 issued by the Responsible Authority on 6 December 2012 with the following modifications:
   • (a) Condition 6 is amended to read as follows:
     1. Prior to the certification, drainage plans must be submitted to and approved by the Responsible Authority. Unless otherwise consented to by the Responsible Authority, the drainage plans must include:

(a) an onsite stormwater retention system for Lot 2.

(b) outfall drainage to the nearest legal point of discharge which is located at the south western front corner of 62 Memorial Drive (plan of construction D150, pit 3).

The drainage plans must be drawn to scale with dimensions and three copies must be provided to the Responsible Authority for its approval. When approved, the drainage plans shall be endorsed and shall form part of this permit. The on-site stormwater retention system for Lot 2 must be maintained by the owner of that lot.

(b) Condition 7 is amended to read as follows:

1. Prior to the issues of a Statement of Compliance for the subdivision the owner must construct outfall drainage to a legal point of discharge to each allotment in accordance with the approved drainage plans to the satisfaction of the Responsible Authority.

(c) Conditions 9 is deleted with subsequent conditions renumbered accordingly.

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

Ms Michelle Blackburn, solicitor of Blackburn Lawyers.

Mr Peter Hobbs, town planner from Casey City Council.

A two lot subdivision of a 2,375m2 lot is proposed. Lot 1 would have an area of 1,595m2 and contain the existing dwelling on the land. Lot 2 would be a 780m2 vacant lot.

Conditions on the permit would require the new lot to be serviced, including drainage and sewage.

Review of conditions contained in a permit, made pursuant to section 80 Planning and Environment Act 1987.

Zone and Overlays applying under the Casey Planning Scheme

Development Plan Overlay (Clause 43.04 and Schedule 5).

Planning permissions required under the Casey Planning Scheme

Subdivision of land in a Township Zone (Clause 32.05-4) subject to Development Plan Overlay requirements (Clause 43.04-1 and Schedule 5).

Other relevant provisions of the Casey Planning Scheme

Public open space contribution and subdivision (Clause 52.01).

The subject land has an irregular shape of 2,375m2. It is located on the east side of Randle Court, is developed with a dwelling, loop driveway and two crossing to the street. The land slopes from its rear to the front (west to east).

The land is located in a residential area of Narre Warren North.

Maroondah City Council v Fletcher and Minister for Planning [2009] VSCA 250; Maroondah City Council v Scott [2008] VSC 42; Canet v Brimbank CC [2003] VCAT 13; and Paul v Goulburn Murray Water Corporation & Ors [2010] VCAT 1755.

1. Mr and Mrs Crowder intend to subdivide their property to make two lots. Lot 1 would contain the existing dwelling and have an area of 1,595m2. Lot 2 would be vacant with an area of 780m2. Their land is located in the Township Zone of Narre Warren North and is subject to a Development Plan Overlay. Pursuant to the zone, planning permission is required for the subdivision. The Development Plan Overlay applies requirements to the subdivision.
2. Casey City Council granted a permit for the subdivision in December 2012 subject to conditions. Conditions 6 and 7 of the permit requires various plans and works to address stormwater drainage. Condition 9 requires payment of a public space contribution equal to 10% of the value of the land in lieu of a contribution of land.
3. Mr and Mrs Crowder have applied to the Tribunal to have the requirements of conditions 6 and 7 amended and condition 9 deleted from the permit. At the commencement of the hearing both parties advised that agreement was reached on re-worded terms for conditions 6 and 7. I am satisfied that the rewording is acceptable and I have directed these to be substituted in the permit.
4. The determinative issue in this application is whether or not it is appropriate to require a pubic open space contribution. As I will explain, the threshold issue is whether the subdivision is exempt under the provisions of Clause 52.01.

1. Clause 52.01 of the Casey Planning Scheme, arguably operating in conjunction with section 18 of the Subdivision Act 1988, forms the basis for the Council's requirement for an open space contribution. For reasons I will explain, ultimately whether or not the contribution sought under condition 9 applies turns on whether the proposed two lot subdivision is exempt from a contribution requirement.
2. Clause 52.01 of the Casey Planning Scheme sets out requirements and exemptions for public open space contributions. A range of contributions are established under the schedule to Clause 52.01 depending on the location of the land. The Crowder property is located in an area designated as CR1. A contribution equal to 10% of the value of the land is required in this area.
3. Currently, for the reasons given by majority of Court of Appeal in Fletcher,[1] consideration of the matters under section 18(1A) of the Subdivision Act is also required before a decision can be made to require this contribution.[2] That said, the Planning and Environment Amendment (General) Act 2013 will, in late October 2013, amend the Subdivision Act, such that section 18 will only apply 'if a requirement for public open space is not specified in the planning scheme'.[3] A new section 18A will be inserted dealing with public open space contributions when required under a planning scheme.
4. These amendments will change how Clause 52.01 and section 18 are said to operate.[4] However as these amendments are not yet in place, I am required to apply the law as it stands and has been interpreted to apply by the Court.
5. Returning then to Clause 52.01, this clause also sets out that a subdivision 'is exempt' from a public space requirement if one of four possible scenarios applies.[5]
6. It is agreed that three of the four scenarios do not apply in this application. The fourth scenario is in contention and is central to this application. This scenario is where the permit is for a two lot subdivision and:

...the council considers it unlikely that each lot would be further subdivided.

1. The applicants maintain that given the planning controls and policies applicable to their land, further subdivision of the two new lots is not likely. Accordingly they say their subdivision proposal is exempt from the contribution requirement.
2. The Council maintains that the applicable planning provisions do not prevent future subdivision of the two proposed lots. It points to the general character of lot sizes, other developments in the township zone and a past decision made by another divisions of the Tribunal to support this view.
3. This application thus turns firstly on the question of whether future subdivision of the new lots is 'unlikely'.

1. By way of background, the subdivision that created the present lot owned by the applicants occurred in 1981. It was created by a two-lot subdivision. At that time of granting permission for this subdivision, the Council made an assessment that further subdivision of the land would be unlikely and so a public open space contribution was not required.
2. There is of course the somewhat vexing position for the Council, that having now made a decision that further subdivision of one of those lots created in 1981 is now acceptable, that past assessment has proved to be incorrect.
3. As put by Ms Blackburn however, it would be incorrect for the Council to try to correct that past decision. It was not pressed that this was the Council's motivation, nor do I consider that this was the case. The background is said by the Council however to point to the dilemma it faces.
4. Ms Blackburn's submission in response is that a Council should not try to anticipate how future planning controls and policies that might be applied to the subject land. The relevant responsible authority made an assessment in 1981 under the then applicable planning provisions. The present day responsible authority should do the same.[6] She supports this submission on the basis of the history of this control and the mischief it is said to be addressing.

1. The Council reasoning is that Lot 1 of 1,595m2 and Lot 2 of 780m2 have a possibility for further subdivision, though, it is agreed this may be less so for the smaller lot.
2. The Council acknowledges that Schedule 5 of Development Plan Overlay which applies to this land and the surrounds, sets out the following requirements for subdivision:
   • A lot size ... that appropriately reflects the low density residential character envisaged in the development plan; or, a minimum lot size of 1,000 square metres for all residential lots for land in the Township Zone.
3. Notwithstanding these requirements the Council submits that since the Narre Warren North Township Strategy Plan was adopted as the Development Plan under Schedule 5, it now holds the view that the numerical lot sizes stipulated in DPO5 are to be interpreted as only a guide.
4. Council has come to hold this view based on a decision by the Tribunal's decision in Ciavarella,[7] subsequent decisions it has then made based on this decision and legal advice it sought on the status of the DPO and the Narre Warren North Township Strategy.

1. A DPO is a provision of a planning scheme that has equal weight with a zone in terms of setting out requirements, albeit generally limited to development rather than use.[8] More particularly, as is explained in the scheme[9] an overlay:

...shows ...[a]dditional requirements for subdivision, buildings and works on land that is affected [by that overlay]....

...operate[s] in addition to the zone requirements and generally concern environmental, landscape, heritage, built form, and land and site management issues.

1. Given this role in the scheme, it is my view that any overlay has more weight than policy guidance. It is a form of planning control that sets out requirements. These requirements may be in mandatory or discretionary terms.
2. As a matter of course, a DPO requires the preparation of a Development Plan to direct the form and conditions of future use and development of land to which it applies. Unless exempted, a permit is not to be granted for a subdivision (or other development) until a Development Plan has been approved. The commonly accepted tests for applications against a Development Plan is whether an application is generally in accordance with this plan. The outcome of such a question turns on the facts and circumstances of each case and the level of detail and precision contained in the development plan documentation.[10]
3. Turning to DPO5 of the Casey Planning Scheme, a Development Plan has been approved and applies to this land and the immediate surrounds. This Development Plan is the Narre Warren North Township Strategy Plan. Thus it purpose is to apply the requirements of this strategy plan.
4. A permit for subdivision pursuant to DPO5 'should' meet the requirements I set out earlier, i.e.:
   • Lots sizes that reflect the low density residential character envisaged in this strategy; or
   • If in the Township Zone, a minimum lot size of 1,000m2.
5. The use of the term 'should' in the permit requirements for DPO5 means that these requirements are discretionary. Such discretion is to be guided by considering the circumstances of each application against the development plan and relevant planning policy.
6. Because a discretion can be applied to the decision to grant a permit under this DPO does not mean however that the weight of the overlay is lessened to one of policy discretion. Rather the discretion is whether a departure from the Development Plan/ Township strategy is acceptable having regard to the whether the planning outcome will generally agree with the intent of the DPO5 requirements and / or the Township Strategy. In considering the exercise of such discretion any variation from what is intended under the DPO will need to be considered in the overall balance of relevant planning policy[11] and the circumstances of the application.
7. The decision made in Ciavarella and other decisions made by the Council are thus to be taken as decisions made in the circumstances of each of those applications. The decision made in Ciavarella in particular appears to turn on circumstances that did not involve a subdivision and proceeded on the premise that the Township Strategy was a reference document.[12]
8. I restate then that the DPO5 and the related Township Strategy set out requirements and a statement of intent as to how development should proceed in the normal course with the weight of a controlling provision of the scheme second only to the applicable zone. A departure from such a control will need to satisfy the Responsible Authority that it can be justified on the balance of these requirements, planning policy and the particular circumstances of the application before it, as per the tests I referred to earlier.
9. My view on this is further reflected in the scheme's local policy for Residential Development,[13] where in it is stated that:

Development plans provide essential tools to facilitate orderly development in growing areas, as well as identifying the infrastructure and open space requirements of developing residential areas.

• Residential development be in accordance with any approved Precinct Structure Plan or any approved Development Plan under a Development Plan Overlay.
• Departures from approved Development Plans will be supported only in exceptional circumstances and only if it can be demonstrated that the departure will result in a net community benefit.

1. While such a statement as to the role of development plans might seem somewhat trite, it reinforces the role of DPOs in the Casey Planning Scheme in a time when the MSS identifies the municipality is under considerable development pressure. It is thus a useful restatement of the DPO's role particularly for Narre Warren North, where there is an intent to resist such pressures in the Town Zone to maintain its lower density character.

1. As put by Ms Blackburn, the test of likelihood, i.e. whether further subdivision of the new lots would be unlikely, is not a test of whether further subdivision is possible or whether there is capability for future subdivision. Rather the test is whether further subdivision is probable, i.e. it has a prospect or real chance of occurring in the present circumstances.
2. My view that this is the proper understanding of 'unlikely' is formed having regard to Ms Blackburn's elaboration on the progressive refinement of the two lot exemption first under the predecessor Local Government Act 1958 and then the Subdivision Act 1988. Her submissions detailed the evolution from 'could [the land] be divided into two or more parts', to land being 'capable of further subdivision' to the current form of whether it is considered 'unlikely that each lot will be further subdivided'.
3. She points to the Court in Scott not challenging the test of 'unlikely' applied by the Tribunal as not a test of being possible or being capable of land being subdivided but of a test of subdivision being probable.[14]
4. It is also a view expressed in the understanding of likelihood under other jurisdictions,[15] though caution must always be applied in adopting cross jurisdictional interpretations.
5. In further support of this position Ms Blackburn also points to the intent of the exemption. This is said to be a decision made by Parliament that genuine, bona fide two lot subdivisions be exempt from making a contribution while ensuring those who might be seeking to avoid making contribution do not do so through a series of successive two lot subdivisions. Thus, responsible authorities and tribunals, as the decision maker, are called upon to make a judgement, based on the present day or very real and prospective planning controls and policies[16] that may apply and the context of the application.
6. I concur with this submission having regard to the matters Ms Blackburn put and the obita in Scott.
7. The question is of whether further subdivision is unlikely, i.e. improbable, turns on the circumstances of the subject land, the nature of the future two lots and the present day relevant planning context applicable to the new lots.

1. The circumstances in this application are that:
   • Two lots of 1,595m2 and 780m2 are proposed, the larger containing an existing dwelling.
   • These lot sizes meet the minimum lot size and averaging lot size requirements of the Township Strategy for Township Zoned land.
   • Any further subdivision of Lot 2 would not be able to meet either Township Strategy subdivision requirement.
   • Any further subdivision of Lot 1 could meet the minimum lot size requirement but not the averaging requirement.
   • Lot 1 contains the existing dwelling and there is no remaining open space around this dwelling that could be used to form a lot that would meet anywhere near the minimum lot size let alone a lot of 780m2.
   • The local planning policy objectives for this area of Narre Warren North include retaining its township character by:
     • limiting growth; and
     • reinforcing, maintaining and enhancing the township's identity.
   • The local character/identity of the town in and around the subject land is one of larger low-density lots.
   • The objectives of the Narre Warren North Township Strategy are also to:
     • limiting growth; and
     • reinforcing, maintaining and enhancing the township's identity.
   • The Township Strategy requires an average lot size of 1,000m2 with a minimum lot size of 780m2 as a response to these objectives and the character of the township.
2. While it might be that Lot 2 and Lot 1 might be capable of some form of further subdivision, it is difficult to envisage that further subdivision of either lot would be probable given these circumstances and the present day development controls of DPO5 and local policy directions for residential development in Narre Warren North.
3. I conclude that it is unlikely that each lot will be further subdivided.

1. It follows from my reasons that the two lot subdivision is exempt from the requirements of a public space contribution pursuant to Clause 52.01. Similarly it would be exempt pursuant to section 18(8) of the Subdivision Act 1988.
2. Accordingly, the decision of the Responsible Authority should be varied by deleting condition 9 of the permit.
3. My order will also direct the amendment of conditions 6 and 7 of the permit in the manner agreed between the parties.

[1] Maroondah City Council v Fletcher and Minister for Planning [2009] VSCA 250.

[3] Section 87 of the Planning and Environment Amendment (General) Act 2013 and section 10 of the Guide to Planning and Environment Amendment (General) Act 2013, Department of Planning and Community Development, April 2013.

[4] That said it is unclear whether the exemptions of section 18(8) of the Subdivision Act will also carry through in Clause 52.01 when a schedule requires a contribution.

[5] These are the same exemptions that apply under section 18(8) of the Subdivision Act 1988.

[6] This generally accords with the view of the Court in Maroondah City Council v Scott [2008] VSC 42 that whether further subdivision is unlikely is to be ascertained from 'relevant planning considerations': see [17] to [18] and [32] to [36].

[7] Ciavarella v Casey CC [2005] 2001 at [72].

[8] Section 1.5.4 of Using Victoria's Planning System, November 2001 and Clause 41 of the Scehme.

[10] As set out in Canet v Brimbank CC [2003] VCAT 13 and adopted in various decisions of other divisions of the Tribunal see: Ruffles v Macedon Ranges SC [2009] VCAT 1734; O'Rourke V Macedon Ranges SC [2006] VCAT 1087; and Campbell v Macedon Ranges SC [2010] VCAT 1345.

[11] On the basis that one of the purposes of the DPO includes the implementation of the State and Local Planning Policy Frameworks.

[14] Maroondah City Council v Scott [2008] VSC 42 at [23] and [24].

[15] See Paul v Goulburn Murray Water Corporation & Ors [2010] VCAT 1755 at [30].

[16] As per the relevant mattes under sections 60 and 84B of the Planning and Environment Act 1987.