REASONS WHY DECISION IS OF INTEREST OR SIGNIFICANCE

PLANNING SCHEME - interpretation or consideration of VPP provision

VPP clause 35.05-3 - Green Wedge A Zone, and schedule; whether VCAT has power to declare a planning scheme provision invalid; construction of provision to attempt to resolve any apparent inconsistency between zone and schedule and to avoid any excess of power.

ANALYSIS - exposition of how to asses an issue or matters to consider

Principles of construction in interpreting subdivision controls in the Green Wedge A zone and schedule.

CHANGE TO LEGISLATION OR VPPS - whether change to VPPs or statutory provisions is required or desirable

Given conflicting Tribunal decisions and uncertainty as to whether schedules to zones or overlays exceed the power of the empowering control, a clarifying amendment is warranted.

The subdivision controls in the Green Wedge A Zone require that 'each lot must be the area specified for the land in a schedule to this zone'. In the Yarra Ranges Planning Scheme, Schedule 1 to that zone purports to apply 'a minimum lot size of 1 hectare with an average yield not exceeding 1 lot to each 2 hectares of site area and a maximum lot size of 3 hectares'.

The permit applicant contends that the average lot size and maximum lot size provisions in the schedule exceed the power of the empowering zone control and are invalid or legally ineffective. It contends that the zone control only allows for a minimum lot size to be specified in the schedule.

There are four relatively recent decisions of the Tribunal that have considered whether a schedule to a zone sets lot size requirements beyond the scope of the enabling zone provision, and attempted to address the consequences if it does so. Unfortunately, the decisions in these four cases are not entirely consistent in their language, reasoning or outcomes.

The parties raised two preliminary questions of law. The Tribunal considered that it did not have jurisdiction to declare that the provisions in the Schedule to the Green Wedge A Zone relating to subdivision are invalid. Even if it had jurisdiction, it would not ordinarily be appropriate to exercise discretion to make a declaration of invalidity in relation to planning scheme provision of wide application. The Tribunal departed from decisions that had expressed or implied a contrary view, including BMF Pty Ltd v Greater Geelong City Council [2011] VCAT 1666 and Davidson v Yarra Ranges Shire Council [2013] VCAT 1966, and generally supported the principles in Cameron Manor Pty Ltd v Mornington Peninsula Shire Council (Red Dot) [2007] VCAT 1822.

The Tribunal considered the issue should be more properly approached as one of statutory interpretation, rather than one of invalidity. In properly interpreting and applying the Schedule to the Green Wedge A Zone, the Tribunal should endeavour to construe the Schedule in such a way to resolve any apparent inconsistency with the empowering provision in the zone control (and so as not to exceed that power) under which the Schedule is made. The decision sets out relevant principles that assist with that interpretative task, including reference to s 7 of the Planning and Environment Act 1987, and to a less-quoted passage in Project Blue Sky Inc. v ABA [1998] HCA 28. Applying a purposive approach, it may possible to resolve an inconsistency. However, where there is a direct inconsistency, it may sometimes become necessary to 'read down' a subordinate control in a schedule in order to give effect to the intent and purpose of the leading or parent provision.

Ultimately, in interpreting the relevant provisions, the Tribunal found no apparent inconsistency between the subdivision control in the zone and schedule. The proper interpretation of the requirements relating to the subdivision of land in the Schedule to the Green Wedge A Zone is that there is a minimum lot size of 1 hectare allowed subject to an overall average lot size of 2 hectares. The average lot size requirement is not a separate stand-alone requirement that might arguably exceed the power under the zone control, but rather a qualification to that minimum lot size requirement. It forms part of the control for the minimum subdivision area for the land authorised by the zone control.

The decision has implications for other schedules to zone and overlay controls. Although the Tribunal found no inconsistency in the circumstances of this case, the Tribunal reiterated a view that the uncertainty occasioned by the differing Tribunal decisions to date warrants a clarifying amendment to the relevant planning controls to put the issue beyond doubt.

Kain v Yarra Ranges SC (includes Summary) (Red Dot) [2013] VCAT 1908

1. The preliminary questions raised by the parties are determined as follows:
   • The Tribunal does not have jurisdiction to declare that the provisions in the Schedule to the Green Wedge A Zone relating to subdivision are invalid. Even if the Tribunal has jurisdiction under its broad power in s 124 of the Victorian Civil and Administrative Tribunal Act 1998, it would not ordinarily be appropriate to exercise discretion to make a declaration of invalidity in relation to planning scheme provision of general application.
   • In properly interpreting and applying the Schedule to the Green Wedge A Zone, the Tribunal should endeavour to construe the Schedule in such a way to resolve any apparent inconsistency with the empowering provision (and so as not to exceed that power) under which the Schedule is made.
   • The proper interpretation of the requirements relating to the subdivision of land in the Schedule to the Green Wedge A Zone is that there is a minimum lot size of 1 hectare allowed subject to an overall average lot size of 2 hectares. The average lot size requirement is not a separate stand-alone requirement that might arguably exceed the power under the zone control but a qualification to the minimum lot size requirement. It forms part of the control for the minimum subdivision area for the land authorised by the zone control.
2. The proceeding is referred to an administrative mention on 13 December 2013. By that date, the parties must advise the Tribunal in writing whether the application for review is to be withdrawn or is still proceeding and, if proceeding, the directions or orders sought to facilitate its future conduct and/or listing for hearing.
3. A copy of the decision is to be forwarded to the Minister for Planning (via his Department) to consider clarification of the zone control or schedule.

Ms Tania Cincotta, solicitor, of Best Hooper Lawyers

1. W & B Kain ('Kain') has made an application to review the refusal by Yarra Ranges City Council ('Council') to grant a permit for a 2-lot subdivision on land covered by the Green Wedge A Zone Schedule 1 under the Yarra Ranges Planning Scheme.
2. One of the Council's grounds of refusal is that the subdivision is prohibited because, although it meets a 1-hectare minimum lot size requirement, it does not meet an associated requirement for an average lot size of 2 hectares set out in the relevant schedule to the zone. In Kain's proposed subdivision, the average lot size is only 1.3 hectares.
3. Kain disputes the lawfulness of the average lot size requirement, and argues that only the minimum lot size requirement is legally effective and applicable.
4. The Council has requested that this issue be determined as a preliminary question. The parties framed two questions of law as follows:
   • whether the Tribunal has jurisdiction to determine or declare that the provisions in the Schedule to the Green Wedge A Zone relating to subdivision are invalid.
   • what is the proper interpretation of the requirements relating to the subdivision of land in the Schedule to the Green Wedge A Zone?
5. This decision deals only with these preliminary questions. It does not deal with the merits of the proposed subdivision.

1. The Green Wedge A Zone in the Yarra Ranges Planning Scheme contains the following provision.

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 8 hectares. ...

1. In a table in Schedule 1 to the Green Wedge A Zone, the schedule sets out a 'minimum subdivision area (hectares)' for 'all land' covered by the schedule, which includes the Kain land, as follows:

Except as provided for in the schedule to Clause 53, a minimum lot size of 1 hectare with an average lot yield not exceeding 1 lot to each 2 hectares of site area and a maximum lot size of 3 hectares.

1. It is common ground that the schedule to clause 53 does not deal with the subdivision issue that arises in this case.
2. Essentially, Kain contends that clause 35.05-3 only authorises the schedule to specify a minimum lot size and, to the extent Schedule 1 purports to also specify an average lot size and maximum lot size, those requirements are beyond the power of the enabling zone provision and are legally ineffective.
3. This is not the first time such an issue has come before the Tribunal. There are four relatively recent decisions of the Tribunal that have considered whether a schedule to a zone sets lot size requirements beyond the scope of the enabling zone provision, and attempted to address the consequences if it does so. These decisions are BMF Pty Ltd v Greater Geelong City Council[1], Mooney v Yarra Ranges Shire Council[2], Kelberg v Greater Geelong City Council[3], and Davidson v Yarra Ranges Shire Council[4].
4. Unfortunately, the decisions in these four cases are not entirely consistent in their language, reasoning or outcomes. Although I will refer to these decisions in these reasons, I do not propose to provide a detailed separate analysis of each decision. It will perhaps become self-evident from my reasons which aspects of those decisions I respectfully agree or disagree with, but I propose to decide the questions of law before me by returning to 'first principles'. However, because of these earlier inconsistent decisions, my reasons in this case are perhaps more expansive than may otherwise have been necessary.

Question 1 - Does the Tribunal have jurisdiction to determine or declare that the provisions in the Schedule to the Green Wedge A Zone relating to subdivision are invalid?

1. Although raised as the first question of law, the parties' advocates did not materially disagree about the starting point for considering the Tribunal's jurisdiction in relation to the validity of a planning scheme provision.
2. In Cameron Manor Pty Ltd v Mornington Peninsula Shire Council (Red Dot)[5], Gibson DP had made the following observations:

[30] The Tribunal has no power under the Planning and Environment Act 1987 to amend or alter a planning scheme or to make declarations about the validity of planning schemes. The proper place to challenge the validity of a planning scheme is in the Supreme Court.

[46] The planning scheme draws a clear distinction between conditions and requirements specified in schedules to overlays. A schedule to an overlay is subordinate to the overlay and may only provide for what is authorised by the overlay itself. The schedule cannot impose controls or require things that go beyond what are provided for in the overlay. It cannot exceed the power of the overlay.

1. Gibson DP considered in Cameron Manor that she was nonetheless obliged to accept that a schedule to an overlay was a valid part of the relevant planning scheme, and that she must therefore interpret and apply the provisions of the schedule as she found them. I agree with that approach.
2. The Tribunal has a power to make a declaration concerning 'any matter in a proceeding' under s 124 of the Victorian Civil and Administrative Tribunal Act 1998. However, in relation to a town planning matter about a provision in a planning scheme, that power has been commonly limited - for example, to properly interpreting the provision, stating the rights of parties in a proceeding with respect to the provision, or declaring the validity of particular administrative action or permit condition under the provision. Broad though the power under s 124 appears, I do not consider that the Tribunal should construe it as enabling a declaration to be made about the underlying validity of a provision of an Act or subordinate instrument of general application (including a planning scheme provision). Such a matter is more properly a matter for a court, or a matter to be brought to the attention of the Minister or relevant government agency for remedial action.
3. Even if the Tribunal was held to have jurisdiction under s 124 of the Victorian Civil and Administrative Tribunal Act 1998, I would not ordinarily consider it an appropriate exercise of discretion for VCAT to make a declaration of invalidity in relation to planning scheme provision of general application. This is particularly the case where the claim of invalidity is based on the limited submissions of a party in an individual tribunal case[6].

1. If the Tribunal does not have jurisdiction to declare a planning scheme provision invalid, this poses a challenge to the Tribunal in how to deal with a situation where it is called upon to apply a provision that arguably exceeds the power of its enabling or empowering provision. The empowering provision may be in the Planning and Environment Act 1987 or, as in this case, in another 'parent' provision in the same planning scheme.
2. In BMF, the Tribunal had declared a provision in a schedule that exceeded its parent zone control to be 'legally ineffective'. The summary of that case used the term 'invalid' and appeared to equate the two terms. In referring to BMF, the decision in Mooney had also used the term 'invalid' in describing the effects of an excess of power in a provision in a schedule. The decision in Kelberg distinguished BMF, but did not disagree with it. It noted BMF as having found the offending provision 'unlawful'. In Davidson, the Tribunal expressly applied BMF and used the term 'invalid'. The Council here says that the Tribunal cannot declare that an offending provision is 'beyond power' or 'legally ineffective', as that would essentially be the same thing as declaring it invalid.
3. I do not see great utility in getting bogged down in the nuances of differing legal terminology. I respectfully disagree with the decisions, particularly BMF, that have purported to make binding declarations of a general nature that a provision that exceeds the power of its parent provision is invalid or legally ineffective in its general operation. The language used in BMF and Davidson is perhaps too broad (albeit that the Tribunal in those cases may not have had the benefit of the same submissions as those before me), and the decisions should perhaps have been limited to the operational effect of the particular provision in the circumstances of the particular Tribunal proceeding.
4. The implications of VCAT purporting to strike down part of a subordinate instrument of wide application are complex. I note the provisions found in the earlier decisions to be 'invalid' or 'legally ineffective' have not been removed from their respective planning schemes, and presumably continue to be applied day-to-day by planning decision-makers.
5. I note in passing that Mooney was a decision of Gibson DP, who had also decided Cameron Manor. There are some passages in Mooney that appear to provide support for the decision in BMF (i.e. that a provision exceeding power may be declared 'invalid'). It will be self-evident that I respectfully disagree with that approach. However, it should be noted that, in Mooney, Gibson DP ultimately declined to make any declaration about the validity of the schedule to the Green Wedge Zone. I prefer her more considered statement of principle in her 'Red Dot' decision in Cameron Manor.

Relevance (if any) of s 22 of the Interpretation of Legislation Act 1984

1. In considering questions of validity and the jurisdiction of the Tribunal, the decisions in BMF and Davidson (and Cameron Manor) all refer to s 22 of the Interpretation of Legislation Act 1984 - as did the parties before me. Unfortunately, I consider the reference to s 22 to be largely misconceived.
2. Section 22(1) of the Interpretation of Legislation Act 1984 provides as follows:

22(1) Every subordinate instrument shall be construed as operating to the full extent of, but so as not to exceed -

(a) the legislative power of the State of Victoria; or

(b) the power to make the subordinate instrument conferred by the Act under or pursuant to which it is made -

to the intent that where a provision of a subordinate instrument, or the application of any such provision to any person, subject-matter or circumstance, would, but for this section, have been construed as being in excess of that power, it shall nevertheless be a valid provision to the extent to which it is not in excess of that power and the remainder of the subordinate instrument and the application of that provision to other persons, subject-matters or circumstances shall not be affected.

1. A planning scheme is a subordinate instrument. However:
   • section 22 deals with an excess of power where a provision of a subordinate instrument exceeds the power of its empowering Act. It does not deal with the circumstance where a provision arguably exceeds the power of another empowering provision in the same subordinate instrument. [In a planning context, for example, s 22 may therefore be relevant to whether a planning scheme provision is in excess of what may included in a planning scheme under s 6 of the Planning and Environment Act 1987.]
   • section 22 provides an aid to interpretation. It indicates how a provision in a subordinate instrument ought to be 'construed' to avoid an excess of power, rather than providing a direct basis for a declaration of invalidity (and it certainly vests no specific jurisdiction in VCAT);
2. The decision in Davidson suggests that s 22 of the Interpretation of Legislation Act 1984 is directly applicable, with the effect of s 22 being that only those parts of the schedule that are within the power of the zone are valid, and that the balance must be disregarded. I would respectfully disagree. As I have indicated, s 22 does not deal with an inconsistency between two provisions of the same subordinate instrument, and is at best an analogous principle. Although still not as clearly expressed as it might be, the decision in BMF had referred to the position being 'consistent with the effect of' s 22, rather than one of direct application.
3. It follows that I do not consider s 22 of the Interpretation of Legislation Act 1984 to be determinative in this case.

Relevance of s 7 of the Planning and Environment Act 1987

1. Somewhat surprisingly, none of the cases in question (nor the parties before me) referred to a perhaps more obvious provision, namely s 7 of the Planning and Environment Act 1987, the relevant parts of which provide:

7(4) If there appears to be an inconsistency between different provisions of a planning scheme -

(a) the scheme must, so far as practicable, be read so as to resolve the inconsistency; and

(i) the State standard provisions prevail over the local provisions; and

(ii) a specific control over land prevails over a municipal strategic statement or any strategic plan, policy statement, code or guideline in the planning scheme.

(5) The Minister may issue directions or guidelines as to the form and content of any planning scheme or planning schemes.

1. I have included the reference to s 7(5) as there are directions, which bind the Council in its capacity as a planning authority, on the form and content of planning schemes. There are also Departmental guidelines on writing schedules. Both broadly confirm that a schedule to a zone or overlay should not deal with matters or impose controls beyond the empowering provision in the zone or overlay. Although not expressly dealing with the situation before me, s 7(4)(b) also contemplates a somewhat hierarchical approach where applicable. Commonsense would also seem to dictate that a 'subordinate' provision such as a schedule to a zone would be read subject to its 'parent' or enabling provision such as the zone itself.
2. At its heart, even putting to one side the more complex issues of validity or excess of power, the issue before me is one of interpretation in the face of two apparently inconsistent provisions in a planning scheme. The Planning and Environment Act 1987 contemplates such a possibility, and instructs me to interpret the scheme, insofar as practicable, to resolve that inconsistency. That is ultimately the Tribunal's task.

1. It follows from the preceding discussion that I do not consider the Tribunal has jurisdiction to determine or formally declare that the provisions in the Schedule to the Green Wedge A Zone relating to subdivision are invalid. If it had jurisdiction, I do not consider it would ordinarily be appropriate for VCAT to exercise discretion to declare invalid a planning scheme provision of general application.
2. It will be apparent from this comment that I respectfully disagree with the decisions in BMF and Davidson and consider that they ought not be followed.
3. The task for the Tribunal is to properly construe the provisions of a planning scheme as it finds them. Having started with a statement of principle adopted from the observations in Cameron Manor, it is perhaps apt to return to that decision, where Gibson DP had concluded:

[79] The questions of law involved in this case are complex. I am mindful of the limits on the Tribunal's powers to question the validity of planning schemes. At the same time, when called upon to interpret the meaning of a particular provision of a schedule to the planning scheme or the validity of a condition proposed as a consequence of the planning scheme provision, I must construe them in such a way as not to exceed the power under which the schedule is made or the Act allows.

1. In undertaking the task of properly construing the planning scheme provisions before it, the Tribunal must attempt to resolve any apparent inconsistency between provisions. In circumstances where there is a clear provision of a zone that indicates what may be included in a schedule to that zone, and a schedule that purports to exceed that limitation, an apparent inconsistency arises.
2. In resolving that inconsistency, the Tribunal should follow the purposive approach espoused in cases such as Project Blue Sky Inc. v ABA[7], and may have regard to all of the usual aids to statutory interpretation. I note in passing that, in addition to the oft-quoted passages from Project Blue Sky, the High Court had stated:

[70] Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court "to determine which is the leading provision and which the subordinate provision, and which must give way to the other"[8]. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.

1. In the matter before me, it is clear which is the leading provision (i.e. the zone), and which is the subordinate provision (i.e. the schedule). In a case such as this, it is thus appropriate to apply the schedule in a subordinate manner to its empowering zone provision, given this would seemingly be the intent of the scheme overall, and is supported by extrinsic material such as Departmental guidelines on writing schedules.
2. From the discussion later in these reasons in relation to Question 2, it will be seen that (at least in my opinion) the proper construction of cl 35-05-3 of the Yarra Ranges Planning Scheme and its schedule is relatively straightforward. That will not always be the case. In some cases, there will be a direct anomaly or inconsistency between two provisions of a scheme that cannot be easily resolved, or resolved at all. There may be situations where a schedule more clearly exceeds the power of its enabling zone control. Anecdotally, the Tribunal is aware of several such anomalies or inconsistencies. However, the nature of each inconsistency, and the way in which the principles and aids to interpretation might therefore apply in a given case, is such that it is impossible to provide general guidance on all possible outcomes.
3. It will be clear that, in such a case, I still consider that the Tribunal should not deal with the matter as one of validity (albeit that it could in an extreme case refer the matter to a court or the Minister), but rather the Tribunal should properly construe the scheme as it finds it and attempt to deal with the inconsistency. The passage from Project Blue Sky above perhaps provides some guidance. Through determining the hierarchy of conflicting provisions, a subordinate provision may be read down in its meaning so as to 'give way' to the leading provision in order to give effect to the intent and purpose of the scheme as a whole. Ultimately, it is the purpose and unity of the statutory scheme that will provide guidance on the proper construction that should apply. Challenging though this task may be in some cases, this is still achieved through the proper application of the principles and aids of statutory interpretation. In the case of a direct and seemingly irreconcilable inconsistency, an offending subordinate provision could thus be read down to constrain its operative effect, rather than resorting to a formal declaration about its validity.

Possible clarification through amendment to provisions

1. As a final comment in relation to the first question before me, I note that several of the decisions that have commented on arguable excesses of power in zone or overlay schedules have, in turn, highlighted the need for the relevant authorities to address the issue by amending the relevant planning schemes. This could be achieved either by clarifying the empowering provision in the zone or overlay to provide greater flexibility for what can be included in a relevant schedule, or by limiting the operation of the schedule. That has not occurred. Given the number of cases where this issue has now arisen, some remedial action is perhaps warranted to provide certainty to permit applicants and decision-makers, and to ensure that the proper intent of the relevant zones and overlays and their respective schedules is realised.

Question 2 - What is the proper interpretation of the requirements relating to the subdivision of land in the Schedule to the Green Wedge A Zone?

1. Having determined that the appropriate course is to consider the matter as one of properly construing the relevant scheme provisions, rather than making a declaration about the validity of the provisions, I turn to that issue of statutory interpretation.
2. Kain argued that the Green Wedge A Zone provision in clause 35.05-3 only authorises the schedule to specify a minimum lot size. To the extent Schedule 1 to the Green Wedge A Zone purports to also specify an average lot size and maximum lot size, Kain contends those requirements are legally ineffective and should be disregarded. In doing so, Kain seeks to apply the principle in the decisions in BMF, Mooney and Davidson.
3. The Council contends that the Green Wedge A Zone provision in clause 35.05-3 authorises the schedule to specify a minimum subdivision 'area' rather than a minimum lot size, and does not expressly preclude the use of an average lot size or maximum lot size as part of the specification of the minimum area. It supports the interpretative approach in Kelberg, and seeks (as did Kelberg) to distinguish the decisions in BMF and Mooney. The Council also contends, additionally or alternatively, that the average lot size or maximum lot size is supported by the Upper Yarra Valley and Dandenong Ranges Regional Strategy Plan, which has special status under the Planning and Environment Act 1987 and the Yarra Ranges Planning Scheme. The Council argues that this provides an alternative enabling power for the provisions in the zone schedule. Finally, the Council argues that the subdivision provision in the schedule is not severable and that, if Kain's interpretation is supported, the whole provision would be legally ineffective and the default zone provision would apply. Under clause 35.05-3, if no area is specified, each lot must be at least 8 hectares and Kain's proposed subdivision would be prohibited.
4. I note for the record that I am not bound to simply choose between the legal advocates' competing submissions, and I should adopt what I consider to be the correct interpretation of the relevant provisions[9].

1. The minimum lot size, average lot size and maximum lot size provisions in the schedule to the Green Wedge A Zone reflect similar provisions in the Upper Yarra Valley and Dandenong Ranges Regional Strategy Plan.
2. I agree with the Council that this Strategy Plan has special status under the Planning and Environment Act 1987 (under Part 3A) and the Yarra Ranges Planning Scheme. Section 46F of the Act requires an amendment to a planning scheme to not be inconsistent with the Strategy Plan, and clause 53 of the Yarra Ranges Planning Scheme and its schedule set out a number of provisions of the Strategy Plan that expressly override any inconsistent provision elsewhere in the scheme.
3. I do not however consider that these factors, by themselves, offer much assistance to the Council in this case. The subdivision provisions in the Strategy Plan perhaps explain the genesis of what the Council seeks to achieve through the zone schedule, but it is the zone rather than the Strategy Plan that provides the enabling power for the zone schedule. Moreover, the schedule to the Green Wedge A Zone expressly 'carves out' matters in clause 53 through its opening words: "Except as provided for in the schedule to Clause 53 ...". Importantly here, the subdivision provisions in the Strategy Plan that arise in this case are not included in a schedule to clause 53 of the scheme, and do not therefore expressly override any limitation imposed by the Green Wedge A Zone and its schedule elsewhere in the scheme.
4. In my opinion, the Strategy Plan provides relevant background, but I agree with the decisions in Mooney and Davidson on this issue (and the submission of Kain in this case); namely that the Strategy Plan does not directly apply in the proper interpretation of the Green Wedge A Zone and its schedule.

1. Having regard to the matters discussed earlier in these reasons, it will be apparent that I should attempt to construe the Green Wedge A Zone and its schedule in a manner that endeavours to achieve its ascertained purpose and to resolve any apparent inconsistency.
2. As a starting point, it is clear that the zone control in clause 35.05-3 is the parent (or empowering or 'leading') provision, and the zone schedule is subordinate to it. There is a clear implication that the schedule should be read, insofar as practicable, so as to achieve but not exceed the purpose of the zone control.
3. The parent control relevantly provides that "each lot must be at least the area specified for the land in a schedule to this zone" (my italics).
4. The text refers to a minimum subdivision area 'for the land', rather than a minimum area 'for that lot'. The reference to 'each lot' should be construed in this context - i.e. in the context of the land being subdivided. If the provision had been intended to be limited to a minimum lot size alone, without qualification, then it could have simply said so. In my opinion, the purpose of the zone control has an emphasis on minimum lot size, but does not expressly limit how that minimum lot size might be achieved or qualified for the land being subdivided as a whole.
5. The question then becomes whether there is any apparent inconsistency with the schedule that purports to give effect to that zone control. On close analysis, I do not believe that there is.
6. The subordinate control in the schedule sets out a minimum subdivision area comprising "a minimum lot size of 1 hectare with an average lot yield not exceeding 1 lot to each 2 hectares of site area and a maximum lot size of 3 hectares" (my italics).
7. I note the text uses the conjunctive term 'with' to separate the specified minimum lot size from the average lot size and maximum lot size. There is a minimum subdivision area specified, based on a minimum lot size of 1 hectare. However, in my opinion, the average lot size requirement is not a separate stand-alone requirement that purports to exceed what was intended by the zone control. It is a qualification or refinement of the minimum lot size. The word 'with' indicates that the average lot size is a part of the overall control on the minimum subdivision area, and intended to qualify the minimum lot size so as to achieve an appropriate minimum subdivision area for the land being subdivided as a whole. There is nothing in the scheme or zone control that suggests that this is inappropriate, and I do not consider that such a qualification exceeds the power of the zone control or the intended operation of the schedule. Indeed, such a construction is entirely consistent with the broad purposes of the Green Wedge A Zone.
8. Although I consider that there is no inconsistency between the zone control and the schedule in this case, the view I have reached would also form the basis for resolving any apparent inconsistency between the zone and schedule should one have been found to exist.
9. The same outcome would apply to the maximum lot area set out in the same provision, insofar as it is also not a stand-alone requirement but a qualification to the minimum lot size. That aspect of the provision is not however directly before me in this case. The same outcome may also apply to other similar schedules such as the schedule to the Rural Living Zone, where it also sets an average lot size in conjunction with a minimum lot size (as considered in Kelberg), or minimum dimensions (as considered in BMF) insofar as they purport to qualify the minimum subdivision area rather than setting separate requirements. However, those matters are not directly before me.
10. I note that my approach to interpretation is consistent with that in Kelberg, but differs from the approach in BMF and Davidson. Although consistency in Tribunal decisions is desirable, I do not agree with Kain that I should simply follow BMF, Mooney and Davidson on the basis that they represent a clear line of Tribunal authority, or that I should distinguish Kelberg on the basis that it was a one-off decision from a 'short-case' hearing. Whilst I do not necessarily agree with all of what was said in Kelberg, I agree with the Council that the interpretative approach adopted in that decision is sound. It will again be apparent from this comment that I respectfully disagree with the decisions in BMF and Davidson.
11. Having reached the view that I have, it is unnecessary to deal with the Council's view that the schedule provision is not severable in the event of partial inconsistency. Kain did not deal with that issue. However, the issue of severance would more likely arise in a situation of invalidity, and I am not necessarily persuaded by the Council's argument on that issue in any event. The approach I have followed is to properly construe the provision before me, which could conceivably, in the event of inconsistency, have involved a 'reading down' of the subordinate provision as a means of resolving that inconsistency. That approach would be more consistent with s 7 of the Planning and Environment Act 1987 and the decision in Project Blue Sky I have referred to earlier.

1. It follows from the above that I find that there is no inconsistency between the zone control in the Green Wedge A Zone and its schedule.
2. The proper interpretation of the requirements relating to the subdivision of land in the Schedule to the Green Wedge A Zone is that there is a minimum lot size of 1 hectare allowed subject to an overall average lot size of 2 hectares. The average lot size requirement is not a separate stand-alone requirement but a part of, or qualification on, the minimum lot size requirement.

1. The consequence of my rulings in this decision is that the subdivision proposed by Kain does not meet the average lot size that forms part of the schedule control on the minimum subdivision area for his land in the Green Wedge A Zone.
2. I have referred the proceeding to an administrative mention to enable the parties to consider the consequences of this decision, and its implications for the current application for review.
3. Whilst I have found no inconsistency in the circumstances of this case, I reiterate that the uncertainty occasioned by the differing Tribunal decisions to date perhaps warrants a clarifying amendment to the relevant zone controls. That would put the issue beyond doubt. I therefore propose that the Tribunal Registry forward a copy of my decision to the Minister for Planning (via his Department) for his consideration.

[1] [2011] VCAT 1666 per Code M

[2] [2011] VCAT 1866 per Gibson DP

[3] [2012] VCAT 1149 per Martin M

[4] [2013] VCAT 1966 per Deidun M

[5] [2007] VCAT 1822 per Gibson DP

[6] See also Joseph v Melbourne Water Corporation [2010] VCAT 1414 at [11] per Dwyer DP.

[7] [1998] HCA 28 (High Court)

[8] following Institute of Patent Agents v Lockwood [1894] AC 347 at 360 per Lord Herschell LC.

[9] generally following Coleman v Power [2004] HCA 39 at [243] per Kirby J; Accident Towing & Advisory Committee v Combined Motor Industries Pty Ltd [1987] VicRp 48; [1987] VR 529 at 547 per McGarvie J.