Barry Ross, Defenders of the South East Green Wedge Inc

Guastella v Kingston CC (Red Dot) [2007] VCAT 1823

The decision of the responsible authority is set aside. A permit is granted and directed to be issued by the responsible authority under the provisions of section 85(1)(b) of the Planning and Environment Act 1987 for the land at Lot 6, LP5184 Springvale Road, Aspendale Gardens which allows the subdivision of land into two allotments generally in accordance with the endorsed plans.

The Tribunal directs that the permit must contain the following conditions:

1. Before the plans of subdivision are submitted for certification, amended plans must be submitted to and approved by the responsible authority. The amended plans must be to the satisfaction of the responsible authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be substantially in accordance with the plans submitted with the application by KLM Spatial Sheet 1 of 1 Version 1 dated 4 September 2007, but modified to show:
   1. provision of easement(s) to the favour of Melbourne Water in accordance with their requirements specified by letter dated January 22, 2007 being a 30 metre wide easement to be placed over the centre line of the existing drainage channel;
   2. provision of a carriageway easement to provide access to Lot A from Maidenhair Mews.
2. Prior to certification of the plan of subdivision, the owner of the land must pay $27,000.00 to VicRoads in full and final satisfaction of all obligations howsoever arising, including its noise attenuation obligation pursuant to the planning scheme (or otherwise) both now and in the future, pertaining to the whole of the subject land.
3. In the event that the $27,000.00 under permit condition 2 has not been paid to VicRoads prior to certification of the plan of subdivision, then prior to certification, the owner of the land must enter into an Agreement pursuant to the Planning and Environment Act 1987, section 173. This Agreement must provide that the owner of the land must pay $27,000.00 to VicRoads in full and final satisfaction of all obligations howsoever arising, including its noise attenuation obligation pursuant to the planning scheme (or otherwise) both now and in the future, pertaining to the whole of the subject land. A memorandum of the Agreement must be entered on the certificate of title and the cost of the preparation and execution of the Agreement and entry of the memorandum on title is to be paid by the owner.
4. The owner must enter into a Section 173 Agreement which requires prior to the development of the land:
   1. that part of Lot B, excluding those areas designated for driveways and open space, between the southern boundary of the Melbourne Water easement and the southern boundary of Lot B is to be filled to at least 600mm above the applicable flood level or alternatively 300mm above the flood level with floor levels set another 300mm above the flood level or a lesser area to the satisfaction of Melbourne Water and the responsible authority;
   2. a certified survey plan, showing levels reduced to the Australian Height Datum (AHD) must be submitted to Melbourne Water to demonstrate that Melbourne Water's condition 1 has been satisfied; and
   3. no fill is to be placed in the easement created in favour of Melbourne Water.
5. The owner of the subject land must enter into an agreement with Melbourne Water for the acceptance of surface and stormwater runoff directly or indirectly into Melbourne Water's drainage system in accordance with section 269A of the Melbourne and Metropolitan Board of Works Act 1958.
6. Prior to certification, the Plan of Subdivision must be referred to Melbourne Water, in accordance with section 8 of the Subdivision Act 1988.
7. The certified plan of subdivision must specify drainage easements and/or reserves in favour of Melbourne Water for all existing and/or proposed Melbourne Water drains and waterways located within the land, pursuant to section 12 (1) of the Subdivision Act.
8. No polluted waters are to be directly or indirectly discharged into any Melbourne Water drain or waterway.
9. The subdivision as shown on the endorsed plans must not be altered without the prior written consent of the responsible authority.
10. The plan of subdivision submitted for certification under the Subdivision Act 1988 must be referred to the relevant authority in accordance with section 8 of the Act.
11. Reticulated water, sewerage and electricity must be available to each lot shown on the endorsed plans before any lot can be used or occupied.
12. Once the subdivision has started, it must be continued and completed to the satisfaction of the responsible authority.
13. Each lot shown on the endorsed plans must be drained to the point of discharge as approved by the responsible authority.
14. In accordance with section 68 of the Planning and Environment Act 1987, this permit will expire if one of the following circumstances applies:
    1. the subdivision is not started within two years.
    2. the subdivision is not completed within five years of the date of certification.
15. In accordance with section 69 of the Planning and Environment Act 1987, the responsible authority may extend the periods referred to if a request is made in writing before the permit expires, or within three months afterwards.

Ms Sarah Porritt of counsel, instructed by McPherson & Kelley, Solicitors of Dandenong.

Mr Ken Carney, Aspendale Gardens Residents Association.

Mr Barry Ross, Defenders of the South East Green Wedge Inc.

1. The subdivider reviews council's refusal to grant planning permission to subdivide one parcel of land zoned both Green Wedge Zone 1 and Residential 3 into two lots reflecting their respective zones. The Urban Growth Boundary lies at the cusp of each respective zone.
2. The Green Wedge zoned parcel would be 3.403ha in area and the Residential 3 parcel would be 6,347m2 in area. The subject site abuts land also zoned Residential 3; part of an Australand development where the average lot size varies around 450-500m2.
3. The Green Wedge Zone 1 land is also encumbered by a Land Subject to Inundation Overlay (LSIO) and a Public Acquisition Overlay for the future Mornington Peninsula Freeway.
4. The Residential 3 zoned land is also encumbered by an LSIO Land Subject to Inundation Overlay and an Incorporated Plan Overlay Schedule 3. This overlay is the Aspendale Gardens Incorporated Plan 1 November 1999, gazetted by Amendment L44.
5. Referral authorities, Melbourne Water and VicRoads, have interests in ensuring:
   1. the Green Wedge zoned land has road connectivity with Maidenhair Mews and is not potentially landlocked. The permit applicant has accepted an easement of carriageway condition to this effect;
   2. the Residentially zoned portion is protected from future noise emission from the Mornington Peninsula Freeway by provision of a sound attenuation barrier or funds therefor (in accordance with the requirements of the Incorporated Plan Overlay Schedule 3). The permit applicant has accepted a permit condition for payment of funds to this effect;
   3. the Residentially zoned land is capable of being developed without flooding problems for future residents, particularly relating to fill and flood levels. The permit applicant has accepted an easement of drainage condition to this effect.
6. On 13 September 2007, and after the hearing, Melbourne Water consented to alternative permit conditions on fill and flood levels suggested by the applicant's solicitors under cover of letter dated 12 September 2007, which I have incorporated into the above permit conditions. All other parties did not oppose these alternative permit conditions, after these alternative conditions were circulated to them.
7. Given agreement between the referral authorities, council and the developer as to the above conditions, the remaining issue is one of lawfulness of the subdivision. Council had originally been opposed to the subdivision but now concurs with it and considers it lawful within its respective zoning.
8. After omitting that part of the Residential 3 zoned part of the subject land which has to be given over for a drainage easement to Melbourne Water, there is 1,316m2 of land left on which development could occur. Given the LSIO, any such development would require fresh planning permission, even if it were only for a single detached dwelling.

1. As there was consent by all parties, Mr Ken Carney, representative of the Aspendale Gardens Residents Association, was joined as a party pursuant to the VCAT Act 1998, s.60, as he had been an original objector and was only slightly out of time with lodging his statement of grounds.

1. Mr Ken Carney for the Aspendale Gardens Residents Association was concerned that the amenity of residents in Maidenhair Mews would be compromised by the thoroughfare arrangements, but now realises that:
   1. the maximum quantity of potential future traffic is very much lower than he thought; and
   2. any future development must be the subject of fresh planning permission because of the Land Subject to Inundation Overlay.
2. Mr Barry Ross for the Defenders of the South East Green Wedge Inc is concerned that the subdivision of land below 40ha is unlawful in a Green Wedge Zone. Clause 35.04-3 provides:

A permit is required to subdivide land. Each lot must be at least the area specified for the land in a schedule to this zone. If no area is specified, each lot must be at least 40 hectares.

1. There are exceptions, which I do not set out here, as they are irrelevant and not relied upon.

1. Mr Ross took me to two VCAT decisions; Rumpf v Melton SC[1] by Deputy President Gibson and Siomos v Banyule CC[2] by Senior Member Byard while Ms Porritt took me to a seemingly contrary decision of Miller & Merrigan PL v Yarra Ranges SC[3] by then Justice Morris.
2. It was not clear to me from the Rumpf decision, which occurred in the context of a Directions Hearing, whether the proposed two-lot subdivision of two existing dwellings on one parcel of land separated the two proposed lots along their respective zone boundaries or straddled both zones. In the absence of a clear expression of facts to the contrary, I assume the latter is the case.
3. Siomos concerned a four-lot subdivision, which straddled two zones, the Low Density Residential Zone (minimum subdivision size of 4,000m2) and the Rural Conservation Zone (minimum subdivision size of 2ha or 20,000m2).
4. From analysing the Siomos facts, it appears to me that proposed Lots 1, 2 and 4 follow their respective zone boundary, and comply with them. Lots 1 and 2 which are in the Low Density Residential Zone comply with the minimum subdivision size of 4,000 m2. Lot 4, which is in the Rural Conservation Zone, complies with the minimum subdivision size of 2ha.
5. Senior Member Byard had a problem with proposed Lot 3 (6,796m2 in area) out of this four-lot subdivision, which straddled two zones, both the Low Density Residential Zone (minimum subdivision size of 4,000 m2) and the Rural Conservation Zone (minimum subdivision size of 2ha or 20,000m2).
6. Senior Member Byard refused to accept the argument that compliance with one of the zone provisions was sufficient, and held that the zone requirements of each of the zones had to be satisfied:

Where a lot straddles two zones, it must comply with the zone controls in relation to each portion insofar as they apply to the land.

I consider that the resolution of the question involved in this case is really fairly simple. Clause 36.06-3 (sic[4]) in relation to the subdivision of land in a rural conservation zone, applies to all land in[5] that zone. In this case, that means all the land south of the zone boundary amounting to almost 2.3 hectares from the proposed lot 4 plus 2,795 square metres (including the house) proposed for lot 3. The area in the zone thus amounts to approximately 2.6 hectares. There is a mandatory legal requirement that any subdivision must create lots with at least the area specified in the schedule. The specification in the schedule is two hectares per lot. The minimum possible subdivision is to divide the land into two. It is not possible to divide an area of approximately 2.6 hectares into two lots each of not less than two hectares.

1. Miller & Merrigan PL v Yarra Ranges SC[6] was also considered in the context of a Directions Hearing. Then Justice Morris issued a declaration and short decision. Both his declaration and his catchwords indicate his decision was made on the basis that the proposed subdivision divided land along the zone boundary instead of straddling both zones[7]. Justice Morris as he then was made it clear that the effect of the proposed subdivision was to leave an area of land in a Rural zone which did not comply with the minimum Rural lot size of 18ha[8]. His decision was based upon the purposive interpretation of legislation test. Morris, J as he then was held:

The interpretation of clause 35.01-4 must be considered in the context of the whole scheme, including the maps which form part of the scheme. The maps show that the existing lot is intended to be used partly for residential development, with the major portion being retained for rural use. It is incomprehensible that the authors of the scheme would have imagined that this would be done without the subdivision of the land. Hence the provision in clause 35.01-4 must give way to the clear purpose of the scheme as evidenced in the planning scheme map. Perhaps another way of considering the matter would be to regard the 18 hectare minimum in the Rural Zone as applying to a subdivision which actually divided land within the Rural Zone, as opposed to a subdivision dividing land along the boundary of the Residential Zone and the Rural Zone.

1. I distinguish the facts of the present case from Rumpf and Siomos. In this case, the proposed lots do not straddle two zones. They do the opposite; they divide the land exactly along the zone boundary. The land within the Green Wedge zone is not being subdivided at all. It is being separated from the land in the Residential 3 zone. I apply the principle of Miller & Merrigan PL v Yarra Ranges SC.
2. It is my opinion that the subdivision is lawful. The planning authorities, who were well aware of the existence of the Green Wedge Zone and the fact that the allotment straddled both the R3 and GW zones, would not have placed the land in a Residential 3 zone, without envisaging that it could be developed. The Green Wedge zone could easily have extended to the extremity of the allotment boundary. If my decision were otherwise, the Residential 3 zone portion would be rendered sterile.

1. As far as the merits are concerned, it is my opinion that the subdivision is reasonable, given all the conditions imposed upon it by the referral authorities as a result of the many constraining overlays.
2. As far as the point of law is concerned, it is interesting that the Department of Planning's Manual instructing councils on the preparation of planning schemes instructs:

The VPP does not contain special provisions for land in two zones. Zone boundaries should therefore align with title boundaries or other defined features such as road centrelines or watercourses, unless there is a deliberate reason not to.

When the planning scheme maps pertaining to the subject land were amended, this was not done.

1. The Minister for Planning may wish to amend the planning schemes to include a translation of the former MMPSO clauses, which dealt with land that is straddled by two or more zones.
2. I refer to clause 13 of the Regional Section of the pre-VPP format metropolitan planning schemes which read:

If a lot on a plan of subdivision is in more than one zone, a permit may be granted for the whole of the land to be used for a use that is in Section 3 in at least one but not all of the zones. The lot must be shown on a plan of subdivision sealed by a municipality under s.569B of the Local Government Act 1958 (or a corresponding previous Act) and approved by the Registrar of Titles before 22 May 1968.

1. This wording would be inadequate in my fact situation, as only relates to 'use' and not to development, the latter encompassing subdivision under the Planning and Environment Act 1987, s. 3.
2. Urban v Shire of Mornington[9] sets out such an example in the Shire of Mornington Planning Scheme 1959 where land was zoned part Residential Medium Density 3 zone and part Stream Protection Zone. Its planning scheme clause 1.01(4) read:

Where the boundary of a zone does not coincide with the title or deed boundary of any land or the boundary of any allotment on a registered plan of subdivision as existing on the approval date, the responsible authority may grant permission for the use or the development of the whole of the land for any purpose for which part thereof may be used in conformity with this chapter.

1. This latter provision could be too broad, as it may allow subdivision into smaller allotments within the Green Wedge zone than would otherwise the case.
2. Alternatively, the matter may be left to rest, with this decision and Miller & Merrigan PL v Yarra Ranges SC relied upon to permit subdivision along a zone boundary.

[1] 2007 VCAT 100

[2] 2007 VCAT 276

[3] 2003 VCAT 1939

[6] 2003 VCAT 1939

[7] Because in paragraph 3 of his decision, he urged the developer to amend the subdivision.

[8] In fact the whole of the land parcel (11ha) was less than the minimum Rural zone size (18ha) in the first place.

[9] (1985) 16 APAD 230