1. The applicant's statement of reasons has extracted the overall staging plan and identified the area on the plan described as Lot B and the Former Access Land shown in blue and red respectively. That extract is reproduced below.

1. The Eastern Land is 155 Hall Road and 8-10 Regal Court, Carrum Downs.
2. The Western Land is 1-10/151 Hall Road, Carrum Downs.
3. The applicant is the owner of Lot B and Lot C on Plan of Subdivision 600249Q, shown below. Lot B corresponds to the original Lot B and Lot C covers the area described as the Former Access Land in the agreement.

1. Lot B and Lot C are now collectively known as 153 Hall Road, Carrum Downs ('the subject land').
2. The subject land, as viewed from Hall Road, is shown in the image below, taken by Google Maps in April 2023, being the vacant area between the apartment development to the west (151 Hall Road) and the Veterinary Clinic to the east (155 Hall Road), with an 'expressions of interest' sign.

1. In a letter dated 24 October 2024, the applicant requested consent from the council, pursuant to clauses 6.1 and 6.3 of the agreement, to provide for alternative solutions to the consolidation requirement for Lot B (clause 6.1) and the realignment requirement for part of Lot C (clause 6.3).
2. On 12 February 2025, the applicant applied to the Tribunal under section 149(1)(d) of the Act for a review of the failure of the council to make a decision within a reasonable time.[2]
3. The council has since confirmed that, had the application for review not been lodged, it would have refused to provide written consent pursuant to clauses 6.1 and 6.3 of the agreement for the following reasons:
   1. The Applicant has not demonstrated that it has taken all reasonable steps to satisfy the obligations of clauses 6.1 and 6.3 of the Agreement.
   2. The 'alternative solutions' proposed by the Applicant for Lot B and the Former Access Land:
      1. are inconsistent with the purpose and intent of the Agreement and the context within which the Agreement was made; and

1. The Applicant has failed to demonstrate that an allotment comprising Lot B and the balance of the Former Access Land adjoining 8-10 Regal Court would be of sufficient size and dimensions to allow for acceptable planning outcome to be achieved.
2. The Tribunal's role in this application is to determine whether consent should be granted under clauses 6.1 and 6.3 of the agreement for the alternative solution put forward by the applicant. This requires a review of the details of the alternative solution, an analysis of the agreement itself and the acceptability of the planning outcome, having regard to the agreement and the planning context.
3. Having considered all of the submissions, documents and evidence provided, the terms of the agreement and the planning context, I have determined that consent should not be granted for the alternative solutions sought.
4. My reasons follow.

1. The applicant's proposal is comprehensively described in the initial correspondence with the council dated 24 October 2024, and is included here:

Our client seeks Council's written consent in relation to clauses 6.1 and 6.3 of the Agreement for alternative solutions for Lot B and the Former Access Land, noting that Lats has taken all reasonable steps to satisfy the obligations clauses 6.1 and 6.3 of the Agreement.

Background

The Agreement was required by condition 3 of planning permit no. 135/2013/P issued by Council on 13 April 2013 for the development of land to the north of Lot B and the Former Access Land.

The Agreement includes obligations in relation to Lot B and the Former Access Land, comprising the balance of the former access strip to Hall Road which forms part of the Stage 6 Land in the development to the north (identified as 'S6' on Annexure A to the Agreement).

Clause 6.1 of the Agreement

Consolidation of Lot B

Clause 6.1 of the Agreement requires that except with Council's written consent, the Owner acknowledges and agrees to consolidate Lot B with either the land identified in Annexure A as:

a) The Eastern Land, which is 155 Hall Road or part of 8-10 Regal Court, Carrum Downs; or

b) the Western Land, which is 151 Hall Road, Carrum Downs (151 Hall Road) now comprising 1-10/151 Hall Road.

At the time the Agreement was entered into, Lats had engaged in discussions with the owner and developer of 151 Hall Road who had indicated an intention to acquire Lot B for the purpose of increasing the developable area of 151 Hall Road. Lats entered the Agreement with the intention of satisfying clause 6.1 by consolidating Lot B with the Western Land. Unfortunately, the owner of 151 Hall Road, did not proceed with the acquisition of Lot B and 151 Hall Road has now been developed with ten townhouses, which are in separate ownership. It would be impractical and uneconomical to consolidate with the townhouses.

Lats have also been unable to reach agreement with the owners of the Eastern Land for the consolidation of Lot B. Accordingly, an alternative solution to satisfy clause 6.1 is necessary.

Alternative solution

Clause 6.1 of the Agreement provides for Council's consent to be obtained for an alternative solution to the consolidation of the Eastern Land or Western Land. The consent provisions provide flexibility and recognise that the consolidation of Lot B may not be possible given the Eastern Land and Western Land are in separate ownership and the owners are not bound by the Agreement.

Given there has been a change of circumstance, which means clause 6.1 of the Agreement cannot be satisfied, Lats seeks Council's written consent for Lot B to be separately disposed of to allow a residential dwelling to be constructed on Lot B, consistent with the purpose of the General Residential Zone. Lats can demonstrate that a suitably sized residential dwelling can be accommodated on the consolidated allotment, with the ability for vehicles to enter and exit the allotment in a forward motion. Further information can be provided in this regard if required by Council before providing consent.

Lats considers that written consent should be provided to enable the construction of a dwelling on a suitably serviced allotment with good accessibility to services. The alternative solution provided by Lats avoids Lot B remaining an isolated and unusable parcel. The alternative solution allows the Agreement to be ended (subject to clause 6.3 of the Agreement being satisfied as set out below) once Lot B has been disposed of.

Clause 6.3 of the Agreement

Consolidation of Former Access Land

Clause 6.3 of the Agreement requires that the Owner acknowledges and agrees to take all reasonable steps to realign the boundary of the Former Access Land with an adjoining property as shown on Annexure A of the Agreement, except with Council's prior written consent.

Lats has entered a heads of agreement with the owners of 12, 14, 16 and 18 Regal Court, Carrum Downs which adjoin the Former Access Land. The boundary of the Former Access Land which immediately adjoins each of these properties will be realigned to consolidate the Former Access Land with the existing backyards of the properties to increase the backyards of those properties.

Lats has been unable to contact and reach agreement with the owner of 8-10 Regal Court which adjoins the Former Access Land and part of Lot B.

Alternative solution

Lats seeks the written consent of Council for the balance of the Former Access Land adjoining 8-10 Regal Court to be consolidated with Lot B and separately disposed of as part of Lot B.

The layout of the proposed consolidation of Lot B and the Former Access Land with adjoining properties is depicted in the image below.

Reasons to proceed with the alternative solutions

Lats considers that it is appropriate to provide written consent for the alternative solutions as proposed as:

a) Clauses 6.1 and 6.3 of the Agreement are consent obligations, which allow Council to vary the requirements for Lot B and the Former Access Land, indicating that there was always an intention to provide for the exercise of discretion by Council;

b) There are no other parties to the Agreement;

c) The alternative solutions will not disadvantage any person; and

d) The alternative solutions provide an acceptable planning outcome and facilitate the use and development of Lot B in accordance with the intent of the relevant zone provisions.

1. In advance of the hearing, the applicant filed planning and traffic expert witness statements considering the viability and planning acceptability of a dwelling being constructed on the proposed expanded Lot B, including indicative building envelope plans, shadow plans and a report addressing compliance with the relevant building regulations.
2. During the hearing, the Tribunal queried the terms of the actual consent sought by the applicant from the Tribunal, if the Tribunal determined to grant consent.
3. Following the hearing, the parties reflected on this query and provided the following terms:

Consent sought:

That consent be provided under clauses 6.1 and 6.3 of Section 173 Agreement AR835653B to:

(a) Consolidate Lot B on Plan of Subdivision 600249Q (Lot B) and that part of Lot C on Plan of Subdivision 600249Q (Lot C) extending from the northern boundary of Lot B to a line drawn east-west from to the northern boundary of 8-10 Regal Court, Carrum Downs VIC 3201 (8-10 Regal Court), and for the combined parcel to be separately disposed of for development as a dwelling; or

(b) Separately dispose of Lot B on Plan of Subdivision 600249Q for development as a dwelling.

Alternative consent sought:

That consent be provided under clauses 6.1 and 6.3 of Section 173 Agreement AR835653B to:

(a) Consolidate Lot B on Plan of Subdivision 600249Q (Lot B) and that part of Lot C on Plan of Subdivision 600249Q (Lot C) extending from the northern boundary of Lot B to a line drawn east-west from the northern boundary of 8-10 Regal Court, Carrum Downs VIC 3201 (8-10 Regal Court), and for the combined parcel to be separately disposed of for development as a dwelling generally in accordance with the plans prepared by Megowan Architectural dated May 2025, Drawing Nos. FS08B, FS09B, FS10B, FS11B, FS12B, FS14B, FS15B, FS16B and FS17B.

(b) Separately dispose of Lot B for development as a dwelling generally in accordance with the plans prepared by Megowan Architectural dated May 2025, Drawing Nos. FS08B, FS09B, FS10B, FS11B, FS12B, FS14B, FS15B, FS16B and FS17B.

1. Essentially, the consent sought is to separately dispose of the part of the original Lots B and C not subject to a separate consolidation agreement and to allow development of a dwelling in that area, or to allow the development of a dwelling generally in accordance with the plans that were before the Tribunal during the hearing of this application

1. Clause 149(1) of the Act allows an application to the Tribunal to be made for review of a decision of a specified body in relation to a matter if an agreement under section 173 of the Act provides that the matter must be done to the satisfaction of the specified body.
2. Clause 6 of the agreement includes several references to council's consent and to council's satisfaction.
3. The applicant submitted that the Tribunal's core question in this application for review is whether the alternative solution provides for an acceptable planning outcome. The council submitted that the consideration of the Tribunal should have regard to the purpose of the agreement, the physical and strategic context of the subject land and the implications for the use and development of the subject land.
4. This is not an application for review of a decision to refuse to grant a planning permit. It is a review of a decision to deny consent for an alternative solution proposed in the context of a specific agreement entered into under section 173 of the Act. As such, I agree with the council's submissions that there is a broader context to the Tribunal's consideration in this case.
5. The reasons for the agreement are provided in clause 4 as follows:

4.1 Council would not have issued the Planning Permit without the condition requiring this Agreement; and

4.2 the Owner has elected to enter into this Agreement in order to take the benefit of the Planning Permit.

1. There is no dispute between the parties that the intention was always that this strip of land be consolidated with the adjoining land once the need for access from Hall Road to the larger subdivision was removed, and it was never intended to leave the land vacant or have it developed for any other purpose.
2. Clause 6.1 provides that, except with the prior written consent of the council, the subject land would be consolidated with the adjoining land prior to completion of the stage 6 subdivision.
3. However, the stage 6 subdivision was completed, and the subject land was not consolidated, despite a lack of prior written consent from the council. As was described in the application letter and can be clearly seen in the aerial image below taken by nearmap.com/au ('Nearmap') on 2 May 2025, all the land to the east and west of the subject land has been fully developed.

1. Despite the completion of the stage 6 subdivision, the parties submit that the remaining terms of the agreement must be fulfilled.
2. In terms of clause 6.1 of the agreement, the applicant is seeking an entirely different outcome to that anticipated by the clause. In terms of clause 6.3, the applicant has reached agreement with four property owners of the land to the east, and will comply with the agreement with respect to that section of Lot C. The alternative solution for clause 6.3 is sought only for the southern portion of Lot C adjoining 8-10 Regal Court.
3. Clause 6.2 and 6.3 specifically state that Lots B and C are not to be used for any purpose and must be consolidated with the adjoining land, to the satisfaction of the council. With respect to Lot C, clause 6.3 instructs the applicant to take 'all reasonable steps' to effect consolidation. The council submits that this has not occurred and that the possibility to consolidate the subject land with adjoining land remains, but is not a practical financial option for the applicant. The applicant submits that it would be unreasonable to require the subject land to be consolidated on that basis.
4. However, the entry into the agreement was not predicated on the consolidation of the subject land resulting in financial gain to the applicant. It was predicated on the fact that the council would not agree to amend the initial permit for subdivision into 105 lots to separate out the subject land without a 'guarantee' that the subject land would ultimately be consolidated with adjoining lots.
5. The council included in its written submission, at paragraph 20, the following extract from the council's delegate report assessing the amendment application which explained the reasoning behind the requirement for the section 173 agreement including that creating a land parcel of that size would be effectively undevelopable and not in accordance with the orderly development of the land:

As the access strip and the land to the west are in different ownership it is not possible to consider a plan of consolidation but the application is only supported on the basis of Lot B's consolidation with the parcel(s) to the west. It would be pointless creating a 6m x 154m freehold land parcel in a residential area. It would be effectively undevelopable and not in accordance with the orderly development of land.

Therefore if the application is to be supported there needs to be a mechanism to ensure the consolidation with a suitable adjoining land parcel occurs within a specified time or Lot B is consolidated back or the ownership retained within Stage 6, unless it can be consolidated as specified in the future to the satisfaction of Council. The former would be preferable as there is greater incentive whilst the development is still in progress. The strip of land would also need to be maintained in a neat and tidy condition. An Agreement pursuant to Section 173 of the Planning and Environment Act, 1987 is appropriate. The need for a condition of Permit to provide this guarantee brings about the need for an amendment to the Permit pursuant to Section 72 of the Act.

1. The council submits that consent for the alternative proposal should not be granted because it is directly inconsistent with the purpose of the agreement and undermines the outcomes sought by the agreement and would result in the subject land becoming a separately disposable lot of a size that cannot be used and developed with an acceptable proposal. Further, the council considers that the applicant has failed to show that it has made reasonable efforts with respect to Lot C as required by clause 6.3 of the agreement.
2. The council submits that the applicant has taken the benefit of the amended planning permit which included the requirement for consolidation of the subject land specifically to avoid unacceptable planning outcomes.
3. The Tribunal's role in this application is to consider whether consent should be given to, essentially, depart from the requirement for the subject land to be consolidated with neighbouring lots and allow for development of a dwelling on part of the subject land.
4. There are no parameters within the agreement to guide the giving of consent for an alternative outcome to that specified in clause 6 and the agreement is drafted, appropriately, to allow for consent to be provided, to the satisfaction of the council.
5. I accept that a dwelling could be constructed on the subject land, generally compliant with the relevant building regulations. However, given the size of the lot, if the subject land is permitted to be retained as a lot and not consolidated, planning permission is not required under the Frankston Planning Scheme and its policies and provisions do not apply. This is precisely the outcome the council aimed to avoid in requiring entry into the agreement in 2019.
6. As set out in clause 3 of the agreement, its purposes are to give effect to the planning permit and to achieve and advance the objectives of planning in Victoria and the objectives of the Frankston Planning Scheme in respect of the subject land. This accords with the role of the council as set out in the Act.
7. The larger area to the west and north of the subject land has been developed in an orderly manner over the past twenty years to achieve the outcome now found in this area of Carrum Downs. The lot sizes, dwelling orientations, road locations, setbacks and other elements were all considered and achieved through various planning permits issued since 2005.
8. I find the following background to be relevant to my consideration.
9. The delegates' report drafted for approval of the 105 lot subdivision in April 2013 explained the proposal as follows:

1. The report explained that the 2013 application was to create a lot for each of the dwellings that were approved but not constructed under the initial 2005 permit for a 136 dwelling development.
2. It is explained that a permit was also issued in 20 November 2010 for a 104 lot subdivision in stages and that permit has lapsed. The Nearmap image taken on 20 November 2010 illustrates that, at that time, the land to the west of the subject land had not yet been developed.

1. The report is dated 30 April 2013. The Nearmap image below, dated 4 April 2013, illustrates that the land to the west of the subject land had been developed in the intervening period, but for the land at 151 Hall Road.

1. When the agreement was entered into on 14 January 2019, the greater development appears to be completed, as can be seen in the Nearmap aerial image below, taken on 22 February, 2019. I note that the development at 151 Hall Road was already well under construction.

1. According to the background information from the applicant set out earlier in these reasons, when the applicant entered into the agreement in January 2019, it did so on the understanding that consolidation with respect to Lot B would be achieved with the developers of 151 Hall Road. Information was not provided as to the applicant's intention at the time with respect to the balance of Lot C.
2. 151 Hall Road appears from the Nearmap imaging to have been fully constructed by late 2019, with domain.com.au showing sale figures from February 2020, indicating that the negotiations for consolidation were unsuccessful fairly soon after entry into the agreement, leaving consolidation possible only with the properties to the east.
3. There does not appear to be anything that has changed since that time, except that the applicant has engaged with the neighbouring owners to the east, has not found it financially profitable to consolidate with some of them and has received advice to indicate that a dwelling could be developed on the remaining part of Lot B and Lot C which could potentially comply with the relevant building regulations.
4. As explained by the council, it would never have issued a permit for a lot with the dimensions of the subject land, or a permit that would result in a dwelling not requiring planning permission without a required building envelope of 10 by 15 metres:
   1. In any event, while Council acknowledges that the requirements of the Building Regulations 2018 may address some matters of amenity (both internal and external), siting and design, in Council's view that does not mean that the purpose of the Agreement should be circumvented in the manner sought. Council never intended to entertain the situation whereby the site could be independently developed at all.
   2. It is evident from the Agreement and the Officer Report that imposed condition 3 on planning permit 135/2013/P/G, that it was not anticipated that Lot B would be separately developed. That is, that the outcome on the Subject Land would not be left to be solely guided by the requirements of the building framework.
   3. Rather, if Council had been considering Lot B as a vacant lot, Council would have required a 10m x 15m envelope (secured through a section 173 agreement or restriction on plan) and Council would have considered the neighbourhood character response in terms of the lot size and layout at that time. If the standard envelope was unable to be achieved, Council would have required the subdivision to occur in combination with an approved development.
5. I accept the Glossop evidence that a dwelling could be constructed on the subject land, and the Gnanakone evidence that it may be acceptable for vehicles to reverse out of the subject land. If the Department of Transport has an alternative view to Gnanakone and requires vehicles to enter and exit in a forward direction, I am not satisfied that a turntable only able to accommodate a B85 vehicle is an acceptable outcome for the subject land.
6. Ultimately, however, the proposal to construct a dwelling on the subject land is a post-facto proposal as opposed to a proposal that is consistent with orderly planning and that should be approved within the terms of the agreement.
7. As previously noted, the purposes of the agreement are to give effect to the planning permit and to achieve and advance the objectives of planning in Victoria and the objectives of the Frankston Planning Scheme in respect of the subject land. This proposal facilitates an avoidance of the objectives of planning and a direct contradiction of the outcomes the agreement was intended to achieve.
8. The agreement, and the planning permit which led to it, arose from the development of the larger area to the west and north of the subject land, which has been developed in an orderly manner over the past twenty years to achieve the outcome now found in this area of Carrum Downs.
9. The approval of the alternative outcome sought, which would allow a dwelling to be constructed on an irregular sized lot without requiring planning permission, is inconsistent with the orderly planning of the area and the purpose of the agreement. The fact that a dwelling could be constructed on the subject land does not meant that this outcome should be facilitated in circumstances where this was expressly sought to be avoided and where the planning scheme provisions no longer apply.
10. In addition, I do not accept that all reasonable steps have been taken by the applicant to consolidate Lot C in accordance with clause 6.3 of the agreement. Nothing has changed with respect to Lot C since the agreement was registered on the title to the land. The applicant has entered agreements to consolidate all but the part of Lot C adjacent to 8-10 Regal Court. There has been no physical change to the properties adjoining Lot C since the agreement was registered, and the applicant entered into the agreement aware of the possibility that the outcome of consolidation may not be achievable on terms that were financially favourable to it. That potential, prior to entry into the agreement, would have had to be balanced by the applicant against the benefit of the amendment that was made to the planning permit.
11. For all of the above reasons, I affirm the decision of the council that consent should not be granted to the alternative solutions proposed by the applicant.
12. The terms of clause 6 of the agreement continue to apply.

[1] The submissions and evidence of the parties, any supporting exhibits given at the hearing, and the statements of grounds filed; have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.

[2] Section 4(2)(d) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) states a failure to make a decision is deemed to be a decision to refuse to make the decision.