Kirkpatrick v Casey CC [2013] VCAT 1691

1. The decision of the Responsible Authority is varied.
2. The Tribunal directs that Permit No. PlnA00244/112 must contain the conditions set out in the Permit issued by the Responsible Authority on 10 December 2012 with the following modifications:
   • (a) Condition 9 is deleted.
   • (b) All subsequent conditions are renumbered.
3. The Responsible Authority is directed to issue a modified permit in accordance with this order.

Subdivision of the land into two lots. Lots 1 has an area of 4004 m2 and Lot 2 has an area of 9440 m2.

Application under Section 80 of the Planning and Environment Act 1987 (the Act) to review conditions in a permit.

Clause 32.03-3: A permit is required to subdivide land.

Clause 37.03-3: A permit is required to subdivide land

The site is a 1.344 ha lot located on the western side of the road, on the Jacques Road and Belgrave - Hallam Road intersection. A dwelling and outbuildings are located on the land. The site is located within an established low density residential area.

1. This is an application to review a condition placed on a permit issued by the Responsible Authority for the subdivision of the land at 1-3 Jacques Road, Narre Warren North . The condition in dispute is:

Before the Statement of Compliance is issued under the Subdivision Act 1988, the applicant or owner must pay, to the Responsible Authority a cash payment equivalent to 5% of the site value of all the land in the subdivision in lieu of the provision of land for Public Open Space in accordance with the Schedule to Clause 52.01 of the Casey Planning Scheme and the provisions of the Subdivision Act 1988.

1. The condition is a standard condition imposed by the Council where a public open space contribution is required to be made when land is being subdivided.
2. The power to impose the condition is found at Clause 52.01 of the planning scheme. The rate at which a contribution must be made is specified in the schedule to the Clause. The review site is located within an area nominated as CR5 within which a rate of 5% is specified.
3. Clause 52.01 provides exemptions from the requirement to make a public open space contribution, in certain circumstances. Relevantly an exemption applies in circumstances where land is subdivided into two lots and the council considers it unlikely that each lot will be further subdivided.
4. In this case, the Council submits that further subdivision of the land is not unlikely. The Council has formed this view because:
   • The planning scheme permits further subdivision because a future lot would meet the 4000m2 total lot size requirement in the Low Density Residential zone (LDRZ) notwithstanding that one of the lots would be less than 4000m2 in the LDRZ and would rely on part of the lot being in the Urban Floodway Zone (UFZ)[1].
   • Consequently Lot 2 which has an area of 9440m2 could be further subdivided producing two lots greater than the minimum lot size in the LDRZ.
   • A further subdivision of this lot is feasible having regard to the configuration of the lot.
5. The Council further submits that a need for public open space in this locality can be demonstrated. The issue of need however only arises where the Council concludes that the further subdivision of the land is not unlikely and the exemption under Clause 52.01 does not apply.
6. I agree with the Council that lot 2 is at least capable of being further subdivided, and a permit for subdivision could be applied for. I also agree that the intent of the current owners of the land is irrelevant to a consideration of the likelihood of the land being further subdivided. I make this finding in response to Mr Toose's submission that his clients do not intend to further subdivide the land.
7. Notwithstanding the above, a judgement remains to be made about whether each lot is unlikely to be further subdivided. That judgement must be exercised in each case having regard to the individual circumstances and context of each site, the pattern of development in the locality and the applicable planning scheme policies and provisions.
8. In the present case I am satisfied that it is unlikely that each lot will be further subdivided. I have reached this conclusion for a number of reasons. Firstly, the configuration of the land is not conducive to further subdivision. The land is wedge shaped with a wide, 96 m frontage to Jacques Road, narrowing through its 230 m depth to a 23 m rear boundary dimension. I agree with Mr Toose that the dimensions and configuration of the land creates a significant constraint in terms of creating further lots that both comply with the requirements of the LDRZ and create practical and useable lots. Secondly, my finding in this respect is reinforced by the fact that about 4000 m2 of lot 2 is subject to inundation and is located within the UFZ and is affected by the LSIO. The constraints over the use and development of this part of the land imposed by the zone and the overlay, does impact on possible subdivision and lot design, and is therefore a further constraint on the future subdivision potential of the land.
9. Finally I acknowledge Mr Toose's submission about the difficulties associated with any development of the land below the existing sewerage line that traverses lot 2. While I do not agree with Mr Toose that any land below that line cannot be developed, the difficulty of developing the land below that line, is a further constraint that reinforces my view that the further subdivision of each lot is unlikely.

1. It follows from the above reasons that it is my conclusion that the decision of the Responsible Authority should be varied and that the condition requiring a public open space contribution be removed.

[1] The Council relied on the decision of the Tribunal in Bonella v Casey [2009] VCAT 817.