The Responsible Authority is directed to issue a permit subject to the following conditions (and in accordance with the direction set out below).

The Responsible Authority is directed under the provisions of Section 85(1)(b) of the Planning and Environment Act 1987 to issue a permit which allows the subdivision of the land at 20 Chirnside Drive, Chirnside Park, in accordance with the endorsed plans and subject to the following conditions:

Amended plans must be submitted to and approved by the responsible authority. When amended, the plans will be endorsed and will become part of the permit. The plans are to be amended as follows:

a)

The existing driveway is to be removed and a driveway is to be provided to the existing carport of the dwelling on Lot 1 from the new driveway proposed along the eastern side of the site which provides access to Lot 2

b)

An easement of carriageway is to be provided in favour of Lot 1 for the section of the new driveway on Lot 2 that will be required for access to the car parking space of Dwelling 1

c)

The common boundary between Lots 1 and 2 is to be amended so that at no point is it closer than 1 metre to the dwelling on Lot 1. The area presently shown on Lot 2 that is to be excluded from Lot 2 by this repositioning of the boundary is to be shown as an easement of carriageway in favour of Lot 2.

d) The layout and site dimensions of the proposed subdivision as shown on the endorsed plan(s) must not be altered or modified unless agreed to by the Responsible Authority.

e) This permit will expire if the Plan of Subdivision is not certified, pursuant to the provisions of the Subdivision Act 1988, within two (2) years of the date of issue.

f) Prior to Certifying the Plan of Subdivision, implied easements as determined by Section 12(2) of the Subdivision Act 1988, are to be shown on the plan, to the satisfaction of the Responsible Authority.

g) Prior to a Statement of Compliance being issued, a new concrete vehicle crossing must be constructed for access to Lot 2 and the existing crossover removed, all to the satisfaction of the Responsible Authority.

h) The owner of the land must enter into agreements with the relevant authorities for the provision of water supply, drainage, sewerage facilities, and electricity, gas and telecommunication services to each lot shown on the endorsed plan in accordance with the authority's requirements and relevant legislation at the time.

i) All existing and proposed easements and sites for existing or required utility services and roads on the land must be set aside in the plan of subdivision submitted for certification in favour of the relevant authority for which the easement or site is to be created.

j) 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 that Act.

1 Application under Section 77 of the Planning and Environment Act 1987 (the Act) to review a decision to refuse a permit to subdivide land into two lots, each containing an existing dwelling.

Planning Scheme and Zoning/Overlay/Schedule Controls

2 Yarra Ranges Planning Scheme. Residential 1 zone.

3 A permit is required pursuant to Clause 32.01-2 Residential 1 zone to subdivide land.

4 In making a decision, Clause 32.01-2 requires that reference must be made to Clause 56 Subdivision of land and Clause 65.02 Decision Guidelines, specifically the section relating to subdivision of land. However, Clause 56 is not applicable to a subdivision where each lot contains an existing dwelling.

5 Council's grounds of refusal were (summarised):

•

Does not comply with Clause 65.02 (i.e. does not provide for an acceptable outcome as regards the possible future development of the land)

•

Building setbacks from the new lot boundaries would not conform with building regulations

•

The proposed subdivision is not site responsive

•

The proposed subdivision would result in an independent persons unit existing without a primary dwelling on the same lot.

6 The land is rectangular, with the following dimensions:

7 I have adopted the description of the site and its locality as provided by Ms. Viswanathan as appropriate, but quoting only those aspects of the matter that relate to the issues in contention.

The site is occupied by a dwelling and a dependent relative unit, which was once a double garage. Two single carports exist on the subject site, one being located in the front setback serving the main dwelling and the second located to the north eastern side of the main dwelling. There (is) no record of any building permits (being issued for the car ports) and it is considered that the carports (were) built illegally.

The dependent relative unit on the site is separately occupied as a dwelling and is separated from the main dwelling with internal paling fences. The unit was converted into a dependent relative unit from the garage. Shire records show building permit was issued for the conversion of the garage to a flat.

A sewerage easement 1.83m wide is located along the western and the rear boundary.

The site is situated in a locality characterised by detached houses on typical detached-house lots.

8 The proposed subdivision would divide the land into two lots. Lot 1 (being the front lot) would contain the principal dwelling and would be 479m2 area, while lot 2, containing the dwelling that was converted from a garage, would have an area of 390m2.

9 The subdivision layout would create a rear, battle-axe lot (Lot 2), which would include a 4.91m wide laneway extending to the street frontage along the eastern side of the existing lot. A new driveway would be constructed along this section of Lot 2.

10 The existing driveway, which has its crossover immediately west of the proposed new driveway and thence curves towards the east (i.e. to cross onto the new driveway) would be truncated when it reaches the existing front carport, so that each dwelling would have separate driveway, albeit that their respective footpath crossings would be quite close together.

11 Council referred the application to a number of internal departments, which apparently had no objection.

12 The application was advertised and two objections were received.

Matters for Consideration Under Planning Controls and Policies

13 The Planning and Environment Act 1987 (Vic),s 84B sets out the matters the tribunal must take into account in determining an Application for Review. Section 84B(2) also requires the Tribunal to take into account any matters which the Responsible Authority could have taken into account, for example, under s.60 of the Planning and Environment Act 1987.

14 Having considered the two submissions and having further discussed the issues with the two parties, I have concluded that the important issue in this matter is whether the proposed subdivision would prejudice the future development potential of the land.

15 The two dwellings already exist. Consequently, as far as I can see, the subdivision would not significantly affect the way that the land continues to be used, except for the proposal to re-site a rear fence - to increase the area of available, secluded open space for the smaller dwelling and decrease it for the larger - and the construction of a new driveway and second driveway crossover. The realignment of the rear fences would allow the allocation of private open space and private secluded open space to exceed that required by Clause 54.05-2, Standard A17, of 80m2 and 25m2 respectively for each dwelling.

16 I have elaborated later on the reasons why I have concluded that other issues raised by Council are not of any great importance.

17 It was common ground between the parties that the site is situated in a locality where increased provision of housing is appropriate (close to community facilities, i.e. the Chirnside Park shopping centre), that the existing housing on the subject site provides a diversity of type and that the existing structures satisfy the definition of Dwelling; also, that the areas of secluded open space would satisfy the requirements of Clause 54.05-2 Private open space objective and Standard A17 (using this as a useful guideline).

18 Before dealing with the critical issues, I consider that it would be useful if I set out my views on the matters that I consider to be not relevant.

19 Ms. Viswanathan's submission dealt at some length with the history of the legal conversion of the original garage to a 'dependent relative's unit' (DRU). Under the provisions of the then-Lilydale Planning Scheme, this conversion of a garage to a dwelling did not require a permit if the second dwelling complied with the definition of a DRU. Council's grounds of refusal included reference to fact that, having been created as a DRU in the first place, Dwelling 2 must now continue as a DRU, which in turn requires that it remain on a site that also contains a 'primary' dwelling. Council's submission contended that the subdivision would separate the DRU from its primary dwelling, making it an illegal building.

20 However, it seems to me that this misses the point. The relevance of the original planning scheme provisions for constructing a DRU relate only to the circumstances that allowed its initial construction (by way of a building conversion) without a planning permit. Now that this historic DRU exists as a legal dwelling (on the basis that it has satisfied the relevant building regulations and the definition of a dwelling, neither of which has been contested), the question of whether any historic use rights remain is only one matter to consider. I note that the definition of Dependent relative's unit does not now exist in the Yarra Ranges Planning Scheme.

21 Another matter to consider, then, is whether under the existing planning scheme either dwelling can legally exist as a single dwelling on a lot.

22 Both buildings now fall within the province of Clause 63 of the Yarra Ranges Planning Scheme in that there are two dwellings on a lot without a planning permit to allow its use for more than one dwelling. Each building falls within the general definition of Dwelling. The subdivision would result in a single dwelling on each lot, a use that does not itself require a planning permit.

23 Other issues that I consider are not relevant to any degree include traffic generation, parking provision and neighbourhood character. The use and development exists and these aspects of their existence would not be changed in any negative ways by the proposed subdivision. The proposed subdivision would not increase the actual parking demand or the present parking provision. Likewise, the access to Dwelling 2 through or past the existing carport already exists and, if access to the second dwelling is inadequate, it will nevertheless remain as it is and will not become any more inadequate or unacceptable.

24 Mr. Merrigan submitted that Clause 56 is not relevant "in this case", and I accept. Clause 56 provides

These provisions do not apply to an application to subdivide land into lots each containing an existing dwelling or car parking space."

25 This exemption does not take any account of the size or quality of the dwellings. Their mere existence is sufficient to trigger the exemption.

26 One aspect of Clause 32.02-1 that deserves comment is the provision that applies to

An application to subdivide land into lots each containing an existing dwelling or car parking space".

In such cases, Clause 32.02-1exempts the permit application from

the notification notice requirements of Section 52(1)(a), (b) and (d), the decision requirements of Section 64(1), (2) and (3) and the review rights of Section 82(1) of the Act.

27 Notwithstanding this provision, Council's submission noted that, contrary to the provisions of the Planning and Environment Act 1987, Council had advertised the permit application. If any objectors had chosen to appear at the hearing, the Tribunal would have had to rule them illegible to be heard.

28 The effect of these two provisions is that the planning scheme makes it quite clear that the subdivision of lots where each lot contains an existing dwelling, as is the case here, must be treated quite differently to a subdivision that creates vacant lots. Council does not appear to be aware of, or to have given any regard to, this particular aspect of the scheme. At the very least, it is a matter that should have been clearly addressed in submissions.

Areas of Non-Compliance with Building Regulations

29 Ms. Viswanathan submitted that the proposed subdivision would place the boundary between the two lots too close to Dwelling 1 to satisfy fire regulations, which require a greater offset. Mr. Merrigan proposed that this problem could be addressed by relocating this section of the boundary the required distance away from the wall (which would place it within the driveway for Dwelling 2) and that an easement of carriageway be created over the excluded section of driveway in favour of Dwelling 2.

30 This would be the converse of the arrangement proposed in the permit application plans, with an easement of way being created within Lot 2 in favour of Lot 1 along its nearest side wall.

31 While Mr. Merrigan's suggested change would create a slightly unusual situation, it would satisfy the legal requirements of the Building Regulations, would be legally quite clear and would maintain practicable access to the rear lot.

32 Ms. Viswanathan also submitted that Council had no record of building permits having been issued for either of the two carports and that they do not comply with building regulations, thereby being illegal.

33 There was no suggestion that the carports had been recently constructed and the photographs suggested that they have existed for a considerable time. Council neither indicated that it was aware of the claimed illegality prior to this permit application nor that it intends to take any action to regularise the situation. I do not consider that this is an issue that bears on my decision.

Affect of the Subdivision on the Future Development of the Site

34 Ms. Viswanathan submitted that the lots created by the subdivision would not be of sufficient size for use in any residential redevelopment that, she claimed, would be a probable consequence of the subdivision. She pointed out that the existing Dwelling 2 is only about 55m2 in area, having only one-bedroom, living room, dining room and kitchen. She submitted

Given the irregular shape of the Lot 2 and the presence of 1.83m wide easement along the rear and western boundary, a better design would be hard to achieve on that lot.

35 I have already dealt with the irrelevancy of Clause 56 of the Planning Scheme. That leaves me to consider the relevant provisions of Clause 65.02. This clause requires that the responsible authority must consider "as appropriate" a number of matters relating to subdivision. Many of these clearly relate to broad-acre subdivision, or subdivisions that create vacant lots. However, there are a number that are relevant and I have listed these below and comment on each of them following:

n

The existing use and possible future development of the land and nearby land.

n

The area and dimensions of each lot in the subdivision.

n

The movement of pedestrians and vehicles throughout the subdivision and the ease of access to all lots.

n

The provision of off-street parking.

36 The first two of the above dot-points are dealt with by the fact that the existence of a dwelling on Lot 2 demonstrates that it is feasible to redevelop that lot with another dwelling, albeit that all options may well be for a small dwelling. It may be that any redevelopment of Lot 2 would have to be with an equivalent sized or other relatively small dwelling. So be it. The various objectives of ResCode include encouraging a variety of dwelling sizes and affordability.

37 Even though Clause 56 is not applicable, it provides a useful test of the future design opportunities on Lot 2. This clause provides (Standard C21) that if a proposed lot is between 300-500m2 and no building envelope is proposed, a lot should be able to contain a building envelope as follows: "either 10x15m or 9x15m if a boundary wall is nominated." There are a number of other requirements for the building envelope, but these are not mandatory (using terms such as "may" and "should", rather than "must").

38 The requirement by Clause 56 of building envelope, as a test of the adequacy of the allotment size and shape, is presumably intended to ensure flexibility in the subsequent design of a dwelling. However, in this case there is an existing dwelling on this lot and there is no pre-requisite that the Lot 2 be capable of accommodating a large dwelling.

39 Both lots appear capable of meeting the simple version of the 'envelope' test of Standard C21. There seems to me to be no reason why this envelope cannot extend into an easement, as the 'envelope' itself clearly includes an allowance for boundary offsets within it. This is demonstrated by the allowance for a smaller 'envelope' where there is to be an identified boundary wall (i.e. no boundary offset).

40 If any redevelopment of Lot 2 were proposed in the future, any new dwelling would not require a permit under the Yarra Ranges Planning Scheme. However, the building regulations trigger off a requirement that various provisions of Clause 54 be satisfied. Consequently, the critical aspects of on-site and neighbours' amenity would be protected.

41 With respect to off-street parking, there is no existing deficiency, if allowance is made for the opportunity for tandem parking on Lot 1. Certainly, in the case of a redevelopment, a reasonable requirement would be for an improvement in the location of parking. I consider that opportunities exist. If any dwelling on Lot 2 never contains more than 2 bedrooms, then no more than one car space will ever be required.

42 One other matter that needs to be addressed is that of the proposed new driveway to Dwelling 2, which would create two immediately adjoining driveways and crossovers. Mr. Merrigan submitted that this was intended to avoid the requirement for an area of common property and the creation of a body corporate which would be the consequence of sharing a driveway. However, I agree with Ms. Viswanathan that this is an inappropriate outcome, as it effectively provides a dual crossing in a conventional frontage and would rather carve up the front garden into an excessive area of driveway.

43 An alternative that I raised with the parties would be to remove the existing driveway, to provide access to the existing front carport (or parking space, if the carport were to be removed) from the new driveway along the eastern boundary of the site, and to create a ROW for Dwelling 1 over the southern section of driveway that would be subject to use by the occupants of both dwellings. This would allow the sharing of the section of 'common' driveway while avoiding the need for common property.

44 Mr. Merrigan agreed that this would be acceptable and Ms. Viswanathan agreed that it would be a preferable outcome to the two driveways as proposed.

45 For the above reasons, I have determined that a permit should be granted for the subdivision of the land into 2 lots.

46 At the conclusion of the hearing, the parties made submissions in relation to Council's draft conditions. The submissions reflected points raised in the initial submissions and the discussions at the hearing. I have incorporated these points into the final conditions, together with other consequential changes.

47 Council's draft conditions contain various notes. These are matters that Council can append to the conditions as it chooses, but are not a matter for the Tribunal to consider or endorse.