1. This proceeding has come before me as a Short Cases List hearing on 19 July 2012 ie the Applicant successfully requested that the proceeding come into this List.
2. As I indicated at the hearing, I have major reservations about this type of quite complicated legal issue being dealt with in the Short Cases List, where the normal expectation is that Members give oral decisions and do not provide any written reasons. In other words, with this type of more complicated matter requiring a legal ruling, common sense indicates that the Legal Member dealing with the matter may well want additional time after the hearing to reflect on the issues, and the parties may prefer to receive written reasons, particularly if the legal issue in question may have precedent implications.
3. Be that as it may, the two allocated hours were fully required just to complete the submissions, and I reserved my decision at the end of the hearing. I have taken these submissions into account in my findings below.
4. Being a Short Cases List hearing, on a strict view, the Tribunal is not required to provide any written reasons at all in making this decision. However in a spirit of providing the parties with something to work with, and some potential broader implications of this decision, the best way forward seems for me to avoid summarising the submissions of the parties but instead:
   • attach the written submissions of the parties for the record - see the end pages of this decision; and
   • cut to the chase with the key legal issue and my finding on it.
5. The basic legal principles at work were not in themselves really in dispute at the hearing. A good quote comes from paragraph 46 in Cameron Manor Pty Ltd v Mornington Peninsula SC [2007] VCAT 1822, where the Tribunal stated that:

A schedule to an overlay is subordinate to the overlay itself 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. It is common ground that Member Code's BMF decision was focusing on the last sentence of the relevant text in the Schedule dealing with "minimum dimension" aspects, and that he was not overtly required to consider the legality or otherwise of the "...with the average area of lots in a subdivision being at least 1.5 hectares" text. Hence Member Code's decision does not provide any real pointers for how the three particular legal questions here should be resolved.
2. See paragraph 17 of the Council written submission which I believe usefully focuses on the key legal issue in dispute, where it is stated that:

That is, the scope of the power of the zone is that any restriction must relate to area.

1. Similarly, at paragraph 15 of the BMF decision Member Code states that:

It states the minimum area for a lot must 'be' the area specified in the schedule. A lot cannot 'be' more than one 'minimum' area.

1. In summary, the key point on which I consider this legal issue turns is whether or not the "...with the average area of lots in a subdivision being at least 1.5 hectares" text in the Schedule ("Contentious Text") introduces a second "minimum area" requirement in breach of the requirements of the primary Rural Living Zone provisions, or alternatively whether the Contentious Text simply forms part of the one (valid) minimum area requirement in the Schedule.
2. My finding in this regard is that I am satisfied that the Contentious Text is merely an element of the one minimum area requirement in the Schedule. On this basis, I am satisfied that Council can validly rely on the Contentious Text and that the qualification flowing from the Contentious Text does not exceed the scope of the power granted by the main zone provisions.
3. I can indicate that I may well have taken a different approach if the nature of the proviso imposed by the Contentious Text involved some other measure or benchmark moving further away from the simple "one hectare" requirement at the opening words of the relevant text in the Schedule. However I see the important point supporting Council's case as being that the "average lot size" nature of the proviso posed by the Contentious Text is still dealing with the same basic concept of "area".
4. On this basis, I am satisfied that where the relevant text in the Schedule begins with the words "One hectare", but which is then qualified by the Contentious Text, there is still only one basic "minimum area requirement" being posed, not two. That is to say, the Contentious Text may qualify or refine the initial "One hectare" requirement, but does not introduce a second, stand-alone minimum area requirement. To the extent that Mr King urged me to see this legal issue as overlapping with the concerns raised by Member Code in his BMF decision, I disagree and see the issue here as quite different.

1. Given the finding that I have made above in relation to the first legal question posed, it is not necessary for me to deal with the second legal question put forward.

If the provision is effective in law, does clause 35.03-3 of the planning scheme nevertheless provide discretion for the grant of a permit in respect of this permit application?

A permit may be granted to create smaller lots if any of the following apply:

• The number of lots is no more than the number the land could be subdivided into in accordance with a schedule to this zone. An agreement under Section 173 of the Act must be entered into with the owner of each lot created which ensures that the land may not be further subdivided so as to increase the number of lots. The agreement must be registered on title.

1. I see Question 3 as something of a furphy, since the potential exemption set out in the bullet point quoted above is still subject to the requirement that the number of lots to be subdivided pursuant to the second bullet point is "..in accordance with a schedule to this zone". The reality is that this Rural Living Zone does have a Schedule, and the relevant requirements of the Schedule include the requirement to comply the Contentious Text.
2. Applying the Contentious Text to the situation here, because of the qualification of there needing to be an average minimum lot size of 1.5 hectares, this type of lot with an area of two hectares cannot be further sub-divided without breaching this "average lot size" qualification. That is, the proposed subdivision would create an average lot size of about one hectare, where the relevant requirements of the Schedule include the need for an average lot size of 1.5 hectares (which the proposal cannot satisfy).
3. Accordingly, the answer to the third legal question is that the "prohibited proposal" outcome arising from the first legal question is not remedied by Clause 35.03-3, nor does Clause 35.03-3 give the Tribunal any discretion to even consider potentially allowing the type of subdivision proposed here.

1. I have upheld Council's submission that the Contentious Text is valid and forms part of the one "minimum area" requirement posed by the relevant text in the Schedule. With the subject land being 2.039 hectares in area and where the "average lot size" text (which I have upheld) in practice requiring a minimum area of three hectares for a two lot subdivision of the subject land to meet the requirements of the Schedule, it follows that this is a prohibited proposal. I am unconvinced that the text in Clause 35.03-5 changes this basic situation.
2. This in turn leaves the Tribunal with no choice but to refuse the Application for Review and affirm Council's Notice of Refusal to Grant a Permit.
3. Whilst using a "clean sheet of paper" approach I have some sympathy for the view that it might be simpler and more user-friendly to avoid the use of this type of "average lot size" proviso, this does not change my view that the Contentious Text is valid.

GREATER GEELONG CITY COUNCIL Respondent/Responsible Authority

1. These submissions are made on behalf of the Greater Geelong City Council (Council) in respect of Tribunal proceeding P632/2012 (Proceeding) considering planning permit application 1433/2011 (Application) which seeks approval to subdivide the land at 40 Luggs Road, Waurn Ponds (Land) into two lots.

1. The Proceeding is brought by Mr John Kelberg (Applicant) as an application for review of a decision to refuse to grant a planning permit pursuant to section 77 of the Planning and Environment Act 1987 (PE Act).

1. The Land is within the Rural Living Zone (RLZ) under the Greater Geelong Planning Scheme (Scheme). The Land is also subject to Design and Development Overlay 6 (Waurn Ponds Quarry Environs) and Significant Landscape Overlay 3 (Waurn Ponds Valley).

1. The Land is on the western fringe of Waurn Ponds and is south-west of the Geelong city centre. The Land is rectangular in shape and two hectares in area.

1. The Land is currently occupied by a dwelling and associated outbuildings, which sit within the south-eastern portion of a well vegetated site.

1. The Land is undulating, with some areas quite steep. Nearby lots are generally developed with single dwellings and associated outbuildings, with similar planted garden vegetation. Lot sizes and configuration in the immediate area vary.

1. The Application proposes the subdivision of the existing two hectare lot into two one-hectare lots. The lots are proposed to run east to west with the southern lot to contain the existing dwelling, shedding and vegetation, with the northern lot basically devoid of any features.

1. The Application was advertised by way of one sign on the site and letters to the owners and/or occupiers of adjoining properties. No objections were received.

1. Pursuant to clause 35.03-3 of the Rural Living Zone, a permit is required to subdivide land. Clause 35.03-3 relevantly provides:

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. The Schedule to the Rural Living Zone relevantly provides that the minimum lot size should be:

1 hectare, with the average area of lots in a subdivision being at least 1.5 hectares. For the purpose of calculating average area, all lots exceeding 3.0 hectares must be considered as 3.0 hectares, and the balance of a staged subdivision should be excluded.

1. The Application was refused on the basis that the proposed lots do not meet the minimum lot area of 1 hectare with an average of 1.5 hectares.

1. Is the provision in the Schedule to the Rural Living Zone in the Greater Geelong Planning Scheme requiring "the average area of lots in a subdivision being at least 1.5 hectares" ineffective in law?

1. If the provision is ineffective in law, should it be severed from the minimum area requirement of one hectare?

1. If the provision is effective in law, does clause 35.03-3 of the planning scheme nevertheless provide discretion for the grant of a permit in respect of this permit application?

1. Clause 35.03 RLZ of the Scheme contemplates restrictions on area of lots. Clause 35.03-3 relevantly states:

Each lot must be at least the area specified for the land in a schedule to this zone.

1. The Schedule to the RLZ contains three columns. Column 1 has no heading but specifies a number of different items, the first of which is 'Minimum subdivision area (hectares)'. Column 2 is headed 'Land' and, for the first item, states 'All land'. Hence, the first item in the schedule applies to the Land. Column 3 is headed 'Area/Dimensions/Distance' and, for the first item, relevantly states:

1 hectare, with the average area of lots in a subdivision being at least 1.5 hectares. For the purpose of calculating average area, all lots exceeding 3.0 hectares must be considered as 3.0 hectares, and the balance of a staged subdivision should be excluded.

1. At paragraph 11 in BMF Pty Ltd v Greater Geelong CC [2011] VCAT 1666, the Tribunal relevantly provided:

A schedule to a zone, overlay or other provision in the Victoria Planning Provisions does not operate as an independent control. It provides optional additional provisions for the zone, overlay or other provision.

1. Similarly, at paragraph 46 in Cameron Manor Pty Ltd v Mornington Peninsula SC [2007] VCAT 1822 the Tribunal provided:

A schedule to an overlay is subordinate to the overlay itself 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. In this instance, the relevant clause in the zone provides that '[E]ach lot must be at least the area specified for the land in a schedule to this zone'. That is, the scope of the power of the zone is that any restriction must relate to area.

1. Interpreting this clause at paragraph 13 in BMF, the Tribunal relevantly provides:

What is authorised by the RLZ subdivision provision? In my opinion, it authorises a minimum area to be specified in a schedule that a lot 'must be' in a subdivision. This is confirmed by the third sentence of the provision. It provides that '[i]f no area is specified, each lot must be at least 8 hectares'. Therefore, the RLZ subdivision provision only authorises a mandatory minimum area for a lot to be specified in a schedule.

It states the minimum area for a lot must 'be' the area specified in the schedule. A lot cannot 'be' more than one 'minimum' area.

1. In Council's submission, a lot is not required to 'be' more than one 'minimum' area under the existing schedule. The minimum area specified in the Schedule is 1 hectare - that is the minimum area. This is only where the average area of lots in the subdivision is 1.5 hectares. This is within the power of Clause 35.03 which prescribes that e_ach lot must be at least the area specified._ It does not prescribe how the area must be specified. That is, it does not preclude the use of an average area to apply the nominated minimum lot area.

1. The Schedule provides that the minimum area that a lot must be in a subdivision is 1 hectare, provided that the average area of lots in the subdivision is 1.5 hectares. This restriction specifies the sole minimum area of lots, subject to a proviso that also relates to the minimum area of lots.

1. The restriction on an average lot size in the Schedule is a guidance on the application of the minimum area of lots. It relates to the sole minimum lot area and does not exceed the power of Clause 35.03.

1. The purportedly offending section of the provision cannot be severed from the remainder of the provision in the schedule. It follows that if the applicant for review is successful in the first question of law, necessarily a planning permit cannot issue.

1. Section 22 of the Interpretation of Legislation Act 1984 to provides a mechanism for reading down provisions of a subordinate instrument to an Act (or the powers of the State of Victoria) where part of that instrument is beyond the power of the authorising Act.

1. Section 22 of the Interpretation of Legislation Act 1984 relevantly provides:

22. Subordinate instruments to be construed subject to legislative power of the State and to empowering Act

(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. In this instance, the requirement for the lot size to be one hectare if the average lot size is 1.5 hectares is not in excess of the power provided for by the PE Act.

1. The power provided for by the PE Act is described in Sections 4A, 6 and 7 of the PE Act.

1. The zone is part of the Victorian Planning Provisions. Section 4A of the PE Act relevantly provides:

(2) The Victoria Planning Provisions may contain any matter which may be included in a planning scheme under section 6.

1. Section 6 of the PE Act describes the ambit of a planning scheme:

(a) must seek to further the objectives of planning in Victoria within the area covered by the scheme; and

(aa) must contain a municipal strategic statement, if the scheme applies to the whole or part of a municipal district; and

(b) may make any provision which relates to the use, development, protection or conservation of any land in the area.

(1) A planning scheme for an area must include and must specify separately-

1. The zone is a State standard provision and the Schedule to the zone is a local provision. Section 7(3) of the PE Act provides:

(i) a municipal strategic statement, if the area of the planning scheme includes the whole or part of a municipal district; and

(ii) any other provision which the Minister directs to be included in the planning scheme; and

(b) may include any other provision which applies only to the area of the planning scheme.

1. Section 7(3)(b) provides a very broad power within the ambit of what a planning scheme may provide for pursuant to section 6(1)(a) and (b). The requirement in the local provision (the schedule to the zone) for the minimum lot size to be one hectare if the average lot size is 1.5 hectares is not in excess of that broad power provided for by the PE Act (or the State of Victoria).

1. If the restriction in the schedule is not in excess of the power provided for by the PE Act, then the 'reading down' provided for by section 22 is not applicable. In BMF this issue was not argued before Member Code. Member Code's only reference to the provision was in passing at paragraph 12. In Mooney v Yarra Ranges SC [2011] VCAT 1866 (26 September 2011), Deputy President Gibson quoted the BMF decision but there is no analysis of this position.

1. However, the common law does applies in relation to applicant for review's contentions in respect of the severability of the provision, if it is considered to be ineffective in law. If that part of the schedule relating to average lot size is ineffective in law, the minimum area requirement of one hectare is also ineffective at law as it forms part of an inseparable provision.

1. In Bank of NSW v Commonwealth ("Bank Nationalisation case") [1948] HCA 7; (1948) 76 CLR 1 outlines the process where an equivalent to section 22 of the Interpretation of Legislation Act 1984 does not apply. Dixon J provided at 369-70:

In the absence of such a provision the rule is that legislation which by a general collective expression covers objects some of which are and some of which are not within the scope of the power of the legislature, the whole must be considered bad. For although the test is one of intention, it cannot be presumed that Parliament gave its assent to a partial operation of its enactment. Thus unless Parliament has said otherwise, a uniform general rule including persons or matters some of which are outside the competence of the legislature must fall as a whole because there is no warrant for the introduction of unexpressed exceptions and limitations and only thus could the provision be given the more restricted operation. Further, if the invalid portion consists in or contains provisos, qualifications, exceptions or conditions affecting the operation of the other provisions severance is impossible. ... It was not to be assumed that connected or associated provisions were enacted as separate expressions of the will of the legislature. No severance could lie effected unless an inference that the provisions are not to be interdependent can be positively drawn from the nature of the provisions, from the manner in which they are expressed or from the fact that they independently affect the persons or things within power in the same way and with the same results as if the full intended operation of the legislation had been valid. (Our emphasis)

1. In the present case, the restriction on minimum average lot size is a condition affecting the operation of the minimum lot size. Accordingly, it is not possible to draw an inference of severability from the drafting - application of the minimum lot size of one hectare is dependent on the average minimum lot size being 1.5 hectares.

1. The intent of the drafters of this provision is clear on its face and the provisions has been applied without contention by the Council and the Tribunal on review. The minimum lot size is to be 1 hectare provided that the average lot size is 1.5 hectares. That is, some small lots are permissible but only where the average lot size is larger.

1. This intention would be subverted were that part of the provision that provides for the minimum average lot size to be severed leaving the minimum lot size to be one hectare. That is a substantively different result.

1. If the intention of the drafters was for all lots to be one hectare it would have been simple to draft the schedule accordingly. This was clearly not the intention of the legislature.

1. In Department of Premier and Cabinet v Birrell (No 2) [1990] VicRp 5; [1990] VR 51, Gobbo J provided a summary of the relevant case law in this area.

From the foregoing authorities and as a matter of general principle the following propositions that are relevant to the present case would seem to emerge as to the limits on the severability of invalid legislation. ...

(1) In the absence of such a provision as s22, where legislation by general language covers objects some of which are and some not within power, then the whole must be considered bad: Bank of New South Wales v The Commonwealth.

(2) No severance can be effected in respect of connected provisions unless an inference that the provisions are not to be interdependent can be positively drawn from the nature and manner of expression of the provisions, or from the fact that they independently affect persons or things within power with the same effect as if the full operation of the legislation was valid: Bank of New South Wales v The Commonwealth_._

(3) No severance can be effected when the enactment is single and indivisible: Strickland v Rocla Concrete Pipes Ltd (1971) 124 CLR 468.

(4) There is no severance if the enactment with the invalid portion omitted is so radically or substantially different at law as to the subject matter from the original enactment as to warrant a belief that the legislative body intended it as a whole only: Olsen v City of Camberwell [1926] VicLawRp 9; [1926] VLR 58.

(5) Severance may be more readily made where separable words or expressions are used; where general words are used then an intention as to partial operation of the law may be inferred, based upon some standard or criterion or test to be discovered from the law itself: Pidoto v State of Victoria [1943] HCA 37; (1943) 68 CLR 87.

(6) The reduced form of enactment must operate upon the persons and things affected by it in the same manner and with the same consequences as would have the original enactment: Bank of New South Wales v The Commonwealth and Strickland v Rocla Concrete Pipes Ltd.

(7) The reduced form of legislation must result in a consistent workable and effective body of provisions: Strickland v Rocla Concrete Pipes Ltd.

(8) The reading down must not have the effect of altering the policy of the legislation with respect to cases remaining within its operation: Pidoto v State of Victoria.

1. Applying this to the present case, the severance of that part of the provision that provides for the minimum average lot size is not possible because the reduced form of the Schedule will not operate upon the persons and things affected by it in the same manner and with the same consequences as would have the original enactment.

1. This is to be contrasted with the 'shape' decision of Member Code.

1. The Tribunal cannot read down or sever that part of the provision that provides for the minimum average lot size because it will change the operation of the provision and produce a result different from that which the drafters intended. To do so would be tantamount to redrafting the provision and this is beyond the power of the Tribunal. A means to avoid this outcome is provided for in the drafting of Clause 35.03-3.

1. The construction of Clause 35.03 RLZ of the Scheme provides for severance of the entire Schedule. Clause 35.03-3 relevantly states:

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. (Our emphasis)

1. It follows that if the relevant part of the Schedule is considered to be invalid or beyond power, a proper reading of the authorising enactment, in this instance Clause 35.03-3, provides that the better view is that the entire part of the schedule relating to minimum subdivision area should be severed. This would be consistent with the intention of the drafters.

1. Section 7(4) of the PE Act provides a mechanism for interpretation where there is inconsistency between parts of a planning scheme:

(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.

1. In Council's submission, this provision does not apply because there is no inconsistency between the different provisions of the Scheme. However, to the extent that there is inconsistency between Clause 35.03 (the State standard provision) and the Schedule (the local provision), section 7(4)(a) provides that it must be read so as to resolve the inconsistency and section 7(4)(b)(i) provides that Clause 35.03 must prevail.

1. In Council's submission, application of section 7(4) of the PE Act in this instance would support the severance of that part of the schedule relating to minimum subdivision area. The expression 'so far as practicable' in section 7(4)(a) cannot be interpreted to include redrafting the Schedule to produce a manifestly different outcome under the guise of 'resolving inconsistency'. Again, the intention of the drafter was very clear.

1. In order to read the scheme to resolve the inconsistency, Clause 35.03 must prevail. This is because the wording of the State standard provision (Clause 35.03) provides for an outcome in such a situation where the Schedule cannot be read in a way that will resolve any inconsistency. Clause 35.03-3 relevantly states:

If no area is specified, each lot must be at least 8 hectares.

1. It follows that if there is inconsistency or invalidity of that part of the schedule relating to minimum subdivision area, the appropriate approach is to sever the entire part of the schedule. This is consistent with the common law and section 7(4) of the PE Act.

1. If the provision is effective in law, clause 35.03-3 of the planning scheme does not provide discretion for the grant of a permit in respect of this permit application, as it is clear the proposal could not satisfy the minimum requirements.

A permit may be granted to create smaller lots if any of the following apply:

• ....
• The number of lots is no more than the number the land could be subdivided into in accordance with a schedule to this zone. An agreement under Section 173 of the Act must be entered into with the owner of each lot created which ensures that the land may not be further subdivided so as to increase the number of lots. The agreement must be registered on title.

1. The Land has an area of 2 hectares. If the provision is effective in law, the schedule provides that the minimum area of lots must be 1 hectare if the average area of lots is 1.5 hectares. The number of lots the land could be subdivided into in accordance with a schedule to this zone is therefore one.

1. This provision does not provide for discretion for the grant of a permit in respect of this permit application.

Victorian Civil and Administrative Tribunal Act 1998

Planning and Environment Act 1987

1. This submission is made on behalf of John Kelberg (Applicant) in support of his application for review of the Council's decision to refuse a planning permit for the subdivision of land at 40 Luggs Road Waurn Ponds.

1. The background to this application is comprehensively covered in the Council officer's report. The following is a brief summary of the relevant information:

1. Permit applicant sought a two lot subdivision.
2. The site is zoned Rural Living Zone and has a DDO and ESO affecting it.

1. The site has an area of 2.039 hectares, is rectangular in shape and has frontage to a Luggs Road which is a sealed road with open table drains on each side.

1. The site sits on the western fringe of Waurn Ponds and is currently occupied by a dwelling and associated out buildings on the south eastern side of the property.
2. A variety of lot sizes surround the property ranging upwards from 0.4 ha. The proposed subdivision will create a vacant lot north of the existing dwelling. The lot is already fenced and treed as part of the operational improvements of the existing property. Dwellings exist on the adjoining properties to the north, south and opposite on the east side of Luggs Road.
3. The permit application was advertised and no objections were received.
4. There were no referral authorities as it was a two lot subdivision.
5. A permit is required to subdivide pursuant to clauses 35.03-3 and 43.02-3
6. Clause 35.03-3 of the Rural Living Zone (RLZ) states that each lot in a subdivision must be at least the area specified for the land in a schedule to this zone.
7. The schedule to the RLZ states that the 'Minimum subdivision area (hectares)' is as follows:

"1 hectare with the average area of lots in a subdivision being at least 1.5 hectares. For the purposes of calculating average area, all lots exceeding 3.0 hectares must be considered as 3.0 hectares (and the balance of a staged subdivision should be excluded). Each lot must also be capable of containing a rectangle of 0.8 hectares with minimum dimensions of 70 metres".

1. Both lots under the proposed subdivision are at least 1 hectare.

1. The average area of the proposed lots does not meet the 1.5 hectares stated in the schedule. Each lot can contain a rectangle of 0.8 hectares but will not meet the minimum dimension of 70 metres.

1. The only ground of refusal stated in the Council's Notice of Refusal is that:

"The application does not meet the requirement contained in the schedule to the Rural Living Zone for all lots in a subdivision to have an average lot size of at least 1.5 hectares in area".

1. The Council Officers report assesses the subdivision application against all relevant clauses in the Planning Scheme and at page 26 under the heading of 'Assessment' states as follows:

"It is considered that the application accords with the Planning Policy Framework and the purpose of the zone".

1. On this basis it is our submission that there is no reason to refuse this application if it is found that the requirement to have a minimum average lot size is ineffective at law.

1. It is submitted that the issue in dispute in this application is the validity of the requirement in the schedule to the RLZ to have a minimum average lot size in addition to a minimum lot size.
2. It is submitted that this requirement is ineffective at law because the RLZ which provides the head of power to create a schedule only allows a schedule to specify a minimum lot size. It does not specify an average lot size or any other requirement.
3. It is submitted that the schedule to the zone is a subordinate instrument under the Planning Scheme. Section 22 of the Interpretation of Legislation Act 1984 requires subordinate instruments to be construed in a way that does not exceed the power founded in the enabling provision. In this instance that is clause 35.03 - 3 of the RLZ.
4. The Tribunal has previously considered this matter in Cameron Manor Pty Ltd v Mornington Peninsula Shire [2007] VCAT 1822. In this case Deputy President Gibson was concerned with the interpretation of a schedule to an overlay. We submit the principles of interpretation apply equally to a schedule to a zone. At paragraph 33 the Tribunal stated:

"The Planning Scheme is a subordinate instrument under the Planning and Environment Act 1987. Thus Section 22 of the Interpretation of Legislation Act 1984 requires that it be construed in a way that does not exceed the power under the Planning and Environment Act 1987 to make a Planning Scheme".

"Second, Schedule 11 is a subordinate instrument under the Planning Scheme. Schedules to overlays under the Planning Scheme can only make provision for those matters allowed by the overlay. Thus a schedule cannot exceed the power conferred by the overlay. It cannot introduce new planning controls or requirements not authorised by the primary provisions of the overlay". (emphasis added)

"...... 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. In the present case it is the zone provisions rather than the overlay provision which regulates what can be included in a schedule. It is quite clear that clause 35.03-3 only allows a schedule to specify 'the area' for lots to be created in a subdivision.
2. Clause 35.03 and the Schedule to the RLZ were considered in the recent 'Red Dot' decision of BMF Pty Ltd v Greater Geelong CC (includes Summary) (Red Dot) [2011] VCAT 1666. At paragraph 13 Member Code states:

"13 What is authorised by the RLZ subdivision provisions? In my opinion, it authorises a minimum area to be specified in a schedule that a lot 'must be' in a subdivision. This is confirmed by the third sentence of the provision. It provides that:'[i]f no area is specified each lot must be at least 8 hectares'. Therefore, the RLZ subdivision provisions only authorises a mandatory minimum area for a lot to be specified in a schedule." (emphasis added)

1. Councils solicitors have indicated in their statement of grounds that an average provision in the schedule is a minimum area and does not exceed the power of Clause 35.03. It is submitted that this interpretation fails to have regard to the fact the clause also states a minimum area. On this basis one needs to enquire if the empowering clause permits or authorizes two different areas to be specified. In BMF, Council's solicitors argued that the words 'an area' in the RLZ subdivision provisions can be interpreted as either an area or areas, having regard for the singular or plural principle in section 37(c) of the Interpretation of Legislation Act 1984.
2. In response the Tribunal stated at paragraph 14, 15 &18 as follows:

"14...... this principle applies unless the contrary intention appears.

15 In my opinion there is a contrary intention evident in the drafting of the RLZ subdivision provisions. It states the minimum area for a lot must 'be' the area specified in the schedule. A lot cannot 'be' more than one 'minimum' area.

18 Other provisions of the scheme confirm my conclusion. The subdivision provision in the Design and Development Overlay (DDO) relevantly provides:

This does not apply if a schedule to the overlay specifically states that a permit is not required.

Subdivision must occur in accordance with any lot size or other requirement specified in a schedule to the overlay". (emphasis added).

1. While there are some differences in the drafting of the subdivision provision in the RLZ and the DDO, the DDO contemplates subdivision 'requirements' other than 'lot size'. The RLZ does not contemplate other requirements.
2. The Tribunal in BMK found a requirement that a lot be a certain shape to be a 'requirement other than a minimum area'.
3. It is submitted that the requirement for lots to have an average lot size is also a 'requirement other than a minimum area'.
4. Accordingly it is submitted that the provision of the schedule requiring average lot sizes is ineffective in law.
5. Such a proposition was also considered to be correct by Stuart Morris QC in an opinion prepared by him on 16 September 2010. This opinion formed part of the planning permit application to Council in BMF. A copy of the opinion was made available to the Tribunal as part of the Councils response to PNPE 2.
6. It is noteworthy that at paragraph 16 of that opinion Morris states:

'In the present context, the role of the schedule is to specify an area that each lot in a proposed subdivision must be if a permit is to be granted for the subdivision. If the schedule purports to specify more than this, to the extent it does so, it is inoperative'. (emphasis added)

1. It might be argued by Council that an average lot size is effectively a minimum lot size. Whilst technically a series of allotments could all be identical in area and thus would have the same minimum area as their average area. To give effect to this in this instance would require all lots to be 1.5 hectares, this is then in direct conflict to the specified min area of 1.0 hectares It is submitted that such an interpretation would mean that the minimum area lot size of 1 ha currently specified in the Schedule could have no meaning or purpose. Such an interpretation we submit would be akin to 'angels dancing on pinheads'. It is well accepted in this Tribunal that when interpreting ordinary or subordinate legislation it 'should eschew creating absurdities' (Leibler v City of Moorabbin 8 AATR 188 of 193).

1. It is submitted that the average lot size requirement can be severed from the remainder of the requirements in the column to the Schedule to the RLZ, without causing the remainder of the Schedule to become legally ineffective. The severance of the ineffective part would mean that the valid parts could still meet the intention provided in the head clause to the RLZ.ie minimum area of a lot.
2. Support for this contention is found in Olson v City of Camberwell [1926] VicLawRp 9; [1926] VLR 58 where the Supreme Court of Victoria at paragraph 68 analysed the provisions of a subordinate instrument and held that the test for severability of an invalid portion of such an instrument was as follows:

"If the enactment, with the invalid portion omitted, is so radically or substantially different a law as to the subject - matter dealt with by what remains from what it would be with the omitted portions forming part of it as to warrant a belief that the legislative body intended it as a whole only, or, in other words, to warrant a belief that if all could not be carried into effect the legislative body would not have enacted the remainder independently, then the whole must fail".

1. It is submitted that the head clause in the RLZ is designed to provide minimum area requirements in a Schedule. This intention is implemented by the minimum lot size provision in the Schedule. The severance of the average lot size requirement from the other requirements in the Schedule would not impact on its ability to achieve the intended result, being for a minimum area for subdivided lots. It is further submitted that the severance of the minimum average lot size would be consistent with the content of the Planning and Environment Act.
2. Section 7(4)a of the Act states that if there appears to be an inconsistency between different provisions of a Planning Scheme, 'the scheme must, so far as practicable, be read so as to resolve the inconsistency'. On this basis the intention of the head clause to specify a minimum area is still fulfilled by the first part of the Schedule being a minimum lot size and therefore the Schedule should be read down to be consistent with the head clause in the RLZ. Again this supports the severance of the average lot size requirement.

1. the schedule to the RLZ should be interpreted as subordinate legislation and not capable of exceeding the power conferred by the RLZ; 2. the RLZ imposes a mandatory requirement in relation to area only;

1. the RLZ does not provide for other requirements to be included in the Schedule;

1. there is a distinction between a minimum area and an average area; 2. the proposed subdivision contains lots of one hectare meeting the mandatory requirement of the schedule relating to minimum area; 3. it is appropriate to sever the ineffective clause from the Schedule as the intent of the Schedule as described in the RLZ can be implemented; 4. the proposed subdivision complies with all other policy provisions within the Planning Scheme; 5. other than the interpretation of the Schedule Council officers have supported the subdivision; and 6. the merits of the proposal warrant the issue of a permit.
2. For all of the reasons outlined above it is respectfully requested that the Tribunal uphold the application for review and direct that a permit issue subject to appropriate conditions.