The owner hereby covenants and agrees with the Council that it will not sell, transfer, encumber or part with possession of any part of the land which is the subject of the Permit without disclosing to its successor or purchaser of the existence of this Agreement which hereby imposes upon the owner (in relation to those parts of the land of which and whilst it is the proprietor) and its successors in title or purchasers the following obligations and restrictions namely;

3.1 Residents of lots directly abutting a municipal reserve are prohibited from dumping rubbish into the reserve over the boundary fence.

3.2 Covered dumpsters/bins must be used to collect rubbish from house construction sites.

3.3 Sediment traps (eg Gore-lex fences or hay bales) must be implemented to control loss of sediment from stockpiles and exposed surfaces during construction of buildings or landscaping works.

3.4 Significant trees identified on the endorsed subdivision plan of the Permit to be retained shall not be lopped, destroyed or removed unless with a planning permit.

3.5 Buildings constructed on Lot 540 must be within the building envelope indicated on the endorsed plan of the Permit and being an attachment to this agreement.

3.6 Boundary fences with the municipal reserve must be maintained by the owners of lots without alteration to their design and visual appearance.

3.7 The planting of environmental weeds on all lots within the subdivision as identified in the Surf Coast Shires booklet entitled "Environmental Weeds: Invaders of our Surf Coast" is prohibited.

3.8 Direct access through the rear boundary of lots onto the municipal reserve is prohibited unless with the written consent of the Surf Coast Shire.

3.9 Hard surfaced areas on lots directly abutting the municipal reserve must be drained to the reticulated storm water system.

3.10 For lots directly abutting the creek side reserve, no more than one dwelling may be constructed on each lot.

3.11 Landscaping of the area within 5m of the rear boundary fence of allotments abutting the creek side reserve must be in accordance with the plant list approved as part of the Permit and being an attachment to this agreement.

3.12 At least 50% of the trees and shrubs used for landscaping of land at the front of dwellings on Lots abutting Spring Valley Drive directly opposite the creek side park must be in accordance with the plant list, approved as part of the Permit and being an attachment to this agreement.

1. There is nothing in clause 3 of the Agreement regarding subdivision, and specifically clause 3.10 refers to construction of a dwelling, and not to subdivision. I therefore find that the permit application is not inconsistent with clause 3.10 of the Agreement as it proposes the subdivision of the land, and not the construction of dwellings. The proposal includes Lot 2 which abuts the creek reserve, and consequently clause 3.10 of the Agreement limits the future development of this lot to one dwelling.
2. The Council's submission was that the proposed two-lot subdivision is appropriate in terms of its planning merits, including: its neighbourhood character impact; its compliance with clause 56 of the planning scheme; and the ability of future dwellings to be constructed in accordance with clause 54 of the planning scheme (ensuring that they will not cause any unreasonable off-site amenity impacts). I agree with the Council's position in relation to the proposal's planning merits.
3. The proposed two-lot subdivision of this corner allotment is consistent with: the identification of the subject site as 'General Residential (Standard)' in the Torquay-Jan Juc residential framework plan at clause 15.01-5L-02 of the planning scheme; and the GRZ1 zoning of the land which applies to the 'Surf Coast General Residential Areas', with Schedule 1 being 'blank', without any local variations. Further, the DDO1 (Torquay Jan Juc Coastal Township Character) applicable to the subject site seeks to protect the low rise nature (that is, with buildings up to two storeys high) of the area by including a permit trigger for the construction of a building which exceeds 7.5 metres above natural ground level.
4. The proposal also includes building envelopes for each of the lots which demonstrate that future buildings can be sited with appropriate setbacks from Quambi Court, Spring Valley Drive and the Spring Creek reserve. The building envelope for Proposed Lot 2 (which interfaces with the reserve) shows a 3.5 metres setback from the northern boundary.
5. The subject site is also not covered by any of the planning scheme's overlay controls that relate to land management, or environmental and landscape outcomes. The Spring Creek reserve is subject to the Environmental Significance Overlay, Schedule 1 (ESO1), although it does not extend to the northern boundary of the subject site. I have no reason to conclude that the proposed two-lot subdivision would undermine the environmental objectives to be achieved under the ESO1 as they relate to Spring Creek.
6. Overall, I find that the proposed subdivision does not conflict with the section 173 Agreement, and does not result in any unreasonable amenity, neighbourhood character or environmental impacts.
7. The subdivision can be appropriately managed via the conditions of permit. The draft conditions circulated by the Council and the applicant were discussed at the hearing, and I agree with the minor variations to the conditions proposed by the applicant.

1. For the reasons explained above, the decision of the Responsible Authority is set aside. A permit is issued subject to conditions.

1. Before the plan of subdivision is certified under the Subdivision Act 1988, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the responsible authority. When approved, the plans will be endorsed and then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the plans submitted with the application but modified to show:

1. Before the Statement of Compliance is issued under the Subdivision Act 1988, the owner must enter into an agreement with the Responsible Authority under section 173 of the Planning and Environment Act 1987. This agreement must include:

(a) Unless with the written consent of the Council, a building must not be constructed outside of a building envelope shown on the endorsed plans. > > (b) An area of at least 25% of the area of lot 1 on the endorsed plans must be set aside as garden area (as defined in the Surf Coast Planning Scheme). This obligation ends if the Surf Coast Planning Scheme ceases to apply a minimum garden area to lot 1.

The owner must pay the reasonable costs of the preparation, execution and registration of the Section 173 Agreement. The agreement must be registered at Land Victoria pursuant to Section 181 of the Planning and Environment Act 1987.

1. The layout and site dimensions of the proposed subdivision as shown on the endorsed plan(s) shall not be altered or modified without the written consent of the Responsible Authority. There are no requirements to alter or modify the endorsed plan if a plan is certified under the provisions of the   Subdivision Act 1988 that is generally in accordance with the endorsed plans.

1. The Plan of Subdivision submitted for certification must include all easements deemed necessary to protect existing or future drainage lines within the subject site, and any easements required between the subject site and the nominated legal point of discharge must be created to the satisfaction of the Responsible Authority.

1. The owner of the land must enter into agreements with the relevant authorities for the provision of water supply, drainage, sewerage facilities, electricity and gas (where it is proposed to be connected) services to each lot shown on the endorsed plan in accordance with the authority's requirements and relevant legislation at the time.
2. 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.
3. 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.
4. The owner of the land must enter into an agreement with:

(a) a telecommunications network or service provider for the provision of telecommunication services to each lot shown on the endorsed plan in accordance with the provider's requirements and relevant legislation at the time; and > > (b) a suitably qualified person for the provision of fibre ready telecommunication facilities to each lot shown on the endorsed plan in accordance with any industry specifications or any standards set by the Australian Communications and Media Authority, unless the applicant can demonstrate that the land is in an area where the National Broadband Network will not be provided by optical fibre.

Prior to the issue of a Statement of Compliance

1. Before the issue of a Statement of Compliance for any stage of the subdivision under the Subdivision Act 1988, the owner of the land must provide written confirmation from:

(a) a telecommunications network or service provider that all lots are connected to or are ready for connection to telecommunications services in accordance with the provider's requirements and relevant legislation at the time; and > > (b) a suitably qualified person that fibre ready telecommunication facilities have been provided in accordance with any industry specifications or any standards set by the Australian Communications and Media Authority, unless the applicant can demonstrate that the land is in an area where the National Broadband Network will not be provided by optical fibre.

2. Before a Statement of Compliance is issued under the Subdivision Act 1988, the applicant must:

(a) provide drainage of each lot; > > (b) pay the Development Infrastructure Levy to the Collecting Agency (Surf Coast Shire Council) based on the net change in demand units in accordance with the provisions of the incorporated Torquay - Jan Juc Development Contributions Plan applying to the land. The payment must be made after certification of the relevant plan of subdivision but not more than 21 days before a Statement of Compliance is issued under the Subdivision Act 1988;

1. This permit will expire if one of the following circumstances applies:

(a) The plan of subdivision is not certified under the Subdivision Act 1988 within two years of the date of this permit. > > (b) Five years after the certification of the plan of subdivision under the Subdivision Act 1988.

The Responsible Authority may extend the periods referred to if a request is made in writing in accordance with Section 69 of the Planning and Environment Act 1987.

[1] All the submissions of the parties, including their supporting exhibits, have been considered in the determination of this proceeding. In accordance with the practice of the Tribunal, not all of this material is cited or referred to in these reasons.