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[2009] VCAT 2168
appellant. Council's decision was varied. A permit was granted for a two-lot subdivision at 31 Forest Street, Colac, in accordance with endorsed plans and subject to the 19 conditions in Appendix 1.
1 cited instrument linked from this judgment.
The Tribunal approved the subdivision of an already developed Colac site into two lots, even though the resulting lot sizes did not meet the five-hectare size identified in the local industrial strategy. It considered that the site was not in an area earmarked for new industrial development and that the subdivision would not reduce the supply of larger industrial lots elsewhere. The revised access and parking arrangements were acceptable subject to detailed conditions. The Member cautioned that a vacant site might have led to a different result.
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Laurie & Warren Plasterers Pty Ltd applied to subdivide its 2,158-square-metre property at 31 Forest Street, Colac. The property was on the west side of Forest Street, south-east of Colac's town centre, on a road forming part of the town's heavy-vehicle network. The existing site contained two businesses: the Food on Forest shop at the front and the plastering business at the rear. No new buildings, works or land-use changes were proposed as part of the subdivision.
The proposed front lot, Lot 1, was approximately 627 square metres and included the existing shop and seven parking spaces. The rear lot, Lot 2, was approximately 1,642 square metres and contained the plastering business. Access to the rear was to pass through two areas of common property, allowing vehicle movements to and from the rear business.
Colac-Otway Shire Council refused the application. The judgment records concerns about consistency with industrial land policy, the ability of each lot to satisfy parking requirements, and the proposed layout of accessways and parking. The applicant submitted amended plans. Those plans changed the lot sizes and used two common-property areas for access, rather than the earlier carriageway easement arrangement. The Tribunal considered that the revised layout improved vehicle movements and made the parking arrangement more usable.
Member E. Bensz heard the matter in Geelong on 28 September 2009. On 13 October 2009, the Tribunal varied Council's decision and directed that a permit be issued, subject to conditions. Those conditions covered the final access and car-park layout, designated staff parking, alteration of a parking space, landscaping, asphalt surfacing, signs and one-way traffic flow, drainage and stormwater, services, easements, certification and expiry.
The judgment identifies the application as a section 77 matter in its heading, but the information section describes it as a section 79 application. The supplied judgment text does not explain that difference. It is therefore safest to record both references rather than infer a correction.
The central policy issue was the five-hectare minimum lot size described in the Colac Structure Plan's Industrial Land Use Strategy. Council's position, as summarised in the reasons, was that subdivision could compromise the site's future capacity for industrial use and that the best outcome might be use by a large industrial business. The judgment also records the policy objective at clause 17.3 of ensuring the availability of industrial land and facilitating industry and research and development.
The Member acknowledged the policy concern rather than treating it as irrelevant. The key question was how it applied to this particular parcel. The site was already developed, with buildings and established businesses. It was not within the areas identified in the Colac Structure Plan for new industrial development, which were described as being primarily to the east and south of Forest Street. On that basis, the Member concluded that subdividing this site would not detrimentally affect the availability of larger industrial lots in those other areas. The reasoning is therefore contextual: it did not state that the five-hectare policy could generally be disregarded.
The surrounding context also informed the assessment. The Member noted that nearby lots ranged from about 4,000 square metres to more than six hectares and that there were larger businesses in the area. The reasons discuss the Design and Development Overlay, Schedule 1, and conclude that its primary intention was to protect landscape character and views to Lake Colac, rather than to retain land specifically for large-scale industrial use. The Member considered the site not visible from the lake or its immediate surrounds and not visible from the main arterial entrances described in the reasons.
The Member expressly qualified the outcome: “If the allotment were vacant and a subdivision was proposed I may well have come to a different conclusion” (Policy compliance, paragraph 8). That observation makes the existing buildings and uses an important feature of the Tribunal's reasoning. It is a counterfactual comment, not a ruling on how a vacant site must be treated.
The second main issue was practical suitability. Council had raised concerns about parking and access, and the applicant supplied amended plans. The revised common-property arrangement provided access to the rear lot and was intended to facilitate movements by larger vehicles. A sweep-path plan was also provided. The Tribunal described the amended arrangement as superior to the original proposal and found the vehicle manoeuvring and parking, particularly for Food on Forest, acceptable. It nevertheless required changes to parking space 4 and designated spaces 1 and 2 as staff parking.
Rather than leave details unresolved, the Tribunal attached conditions requiring plans, signs, markings and construction standards. It also required a landscaping plan and landscaping installation and maintenance, with completion required before the Statement of Compliance. The permit conditions thus form part of the decision, not an optional commentary about how the site might be laid out.
The judgment does not set out a general account of the law before this decision, nor does it identify a change to legislation or establish a general new rule. Its reasons apply the planning policy and scheme provisions identified in the decision to the specific facts and plans before the Tribunal. The decision should accordingly be described as a fact-specific planning determination, not as changing the statutory framework.
As presented in the judgment, the relevant policy position included a five-hectare minimum lot size intended to provide sufficient industrial land for large-scale businesses. After considering that policy alongside the existing development, the site's location relative to planned industrial areas and the proposed layout, the Tribunal found approval appropriate in this case. It did not remove or amend the policy. The order approved a particular subdivision subject to conditions.
The judgment refers to the Colac Structure Plan, clause 17.3, the Industrial Land Use Strategy, the Industrial 1 Zone, the Design and Development Overlay Schedule 1, and clause 43.02-3 as the permit trigger for subdivision. It also refers to the Planning and Environment Act 1987 and the Subdivision Act 1988 in the order and conditions. The supplied text does not analyse those Acts in detail or set out a general test beyond the considerations described in the reasons.
The decision's own caveat matters when describing any “after” position. The Member said a vacant allotment might have led to a different conclusion. The decision therefore does not establish that the minimum lot size is immaterial whenever an applicant proposes subdivision, or that existing use alone determines the outcome. It records how the Tribunal balanced the identified policy against the circumstances of this developed site.
The Member's principal policy conclusion was that the subdivision “will not have a detrimental impact on the availability of larger industrial lots to the east and south east of the Colac Township, and therefore should be approved on this basis” (Policy compliance, paragraph 7). In plain English, the Tribunal accepted that this particular subdivision would not undermine the identified supply of larger industrial sites elsewhere in the planned industrial areas.
The next paragraph says: “If the allotment were vacant and a subdivision was proposed I may well have come to a different conclusion” (Policy compliance, paragraph 8). In plain English, the existing development mattered. The Tribunal was not deciding whether the same subdivision would be acceptable on undeveloped land.
On the revised design, the Member said the amended layout was “far superior” to the original proposal and that the practical vehicle manoeuvring and parking areas, particularly for Food on Forest, were acceptable (Suitability of the land for subdivision, paragraphs 2 and 4). This expresses an assessment of the amended plans, not an unconditional approval of every possible access or parking arrangement. The permit conditions required further compliance, including a modification to space 4, staff designation of spaces 1 and 2, signs and markings for one-way traffic flow, and endorsed plans showing access in relation to lot boundaries.
The order itself is also important. It varied Council's decision and directed that a permit be issued in accordance with endorsed plans and subject to Appendix 1. In plain English, the applicant obtained permission for the subdivision only on the terms and subject to the requirements set out in that permit.
The reasoning is most directly relevant as a comparison where a subdivision proposal involves a developed site in an industrial area, a local strategy seeks to retain larger parcels for industrial activity, and the site is outside areas designated for new industrial development. The decision also involved existing businesses, no proposed change to buildings or land use, and revised plans addressing practical access and parking concerns.
The factual limits are equally important. This was a two-lot subdivision of a 2,158-square-metre site, with a front retail food premises and a rear plastering business. The Tribunal considered the existing buildings and activities, the site’s location, its relationship to planned industrial areas, the visual effects discussed in the reasons, and the amended access and parking design. A proposal involving a vacant parcel, different uses, different policy mapping, or unresolved vehicle access would not necessarily raise the same balance.
The Member's express vacant-site comment is a particularly clear boundary. A reader should not extract a broad principle that undersized industrial lots may routinely be subdivided. The source supports the narrower proposition that this Tribunal approved this developed site's subdivision after concluding that the policy objective of maintaining larger industrial lots would not be materially harmed elsewhere, and after finding the revised layout acceptable subject to conditions.
For professional comparison, the relevant details are therefore not only the lot areas. They include the site's existing development, the purpose and location of the policy's preferred industrial areas, whether proposed works or use changes are involved, the actual access geometry and vehicle movements, parking provision, and the matters controlled by conditions. The judgment itself does not prescribe a checklist or say that these factors are exhaustive.
The supplied judgment contains no discussion of later decisions, and the provided material does not identify any later court or tribunal treatment. No claim can therefore be made from this source about whether a later decision followed, distinguished, applied or criticised this case.
The decision is a VCAT Planning and Environment List determination by Member E. Bensz. The text refers to no other decided cases. Its reasoning is expressed in relation to the particular planning policy, site and amended proposal before the Tribunal. The absence of later-treatment material is a limit of the supplied source, not evidence that the decision has or has not been relied on elsewhere.
Any research into subsequent treatment would need sources beyond this judgment. On the material provided here, the safe account is limited to the Tribunal's own order and reasons.
Several matters are not resolved by the reasons as supplied. First, the text does not explain the difference between the section 77 reference in the heading and the section 79 reference in the information section. It records the order and the planning permit application, but not why the two provisions are both mentioned.
Second, the judgment does not give the full text of the Colac Structure Plan, the Industrial Land Use Strategy, the planning scheme provisions or the Design and Development Overlay. It summarises their relevant objectives and the Member's reading of the overlay. A more complete assessment of how the decision fits the full planning framework would require those materials.
Third, the reasons do not set out a detailed calculation of parking demand, the applicable parking rates, or a complete technical analysis of the vehicle swept paths. They state that a sweep-path plan was lodged and that the revised parking and manoeuvring arrangement was acceptable, while imposing further conditions. The underlying plans and evidence are not reproduced in the supplied judgment.
Fourth, the decision does not determine how a vacant industrial site would be assessed. The Member's statement that the outcome might differ is expressly hypothetical. It signals a factual distinction, but does not specify what result would follow or what considerations would control such a case.
Finally, the judgment does not report subsequent compliance with the permit conditions, certification of the subdivision, or any later dispute. Its disposition is a permit grant subject to conditions, not a record of whether those conditions were later fulfilled.
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Colac-Otway Planning Scheme, Section 77 Planning and Environment Act 1987, industrial 1 Zone, subdivision, Contrary to Policy Requirements. Access to site, Parking.
Laurie & Warren Plasterers Pty Ltd v Colac Otway SC [2009] VCAT 2168
Section 79 Planning and Environment Act 1987
The land is located on the west side of Forest Street, south east of the town and has a total area of 2158m2. The proposed lot 1 which contains the existing shop "Food on Forest" and is located at the front of the site and is proposed to have an area of approximately 627 square metres. This site will contain seven car parking spaces which is shown within the frontage and sideage of the allotment. The proposed Lot 2 to the rear of the site will have an area of 1642 square metres. It is rectangular in shape and contains the existing plastering business.
In deciding the conditions to be included on the permit the Tribunal has had regard to the draft conditions provided to the Tribunal by the responsible authority and the submissions and evidence of the parties in addition to the matters which arise from these reasons.
Before the plan is certified an access and car park layout plan must to be submitted for endorsement by the Responsible Authority demonstrating the relationship of and access for each of the lots with the prepared lot boundaries.
Parking carspaces 1 & 2 on Lot 1 to be designated as staff parking.
Carparking space 4 is to be modified to ensure egress and access is to the satisfaction of the Responsible Authority
A landscaping plan is to provided to the satisfaction of the Responsible Authority showing the types of planting and the paving of the car parking area.
All the landscaping proposed on the landscaping plan will be required to be installed within 12 months of the issue of a permit and must be thereafter maintained to the satisfaction of the Responsible Authority and this work must be undertaken prior to the issue of a Statement of Compliance for the subdivision.
Plans submitted for certification must meet the requirements of the Subdivision Act 1988, as amended.
The developer must mark street numbers for all lots in the subdivision in accordance with the Shire's street numbering system to the satisfaction of the Responsible Authority.
The Statement of Compliance will not be issued prior to all conditions in relation to subdivision on the subject Planning Permit being complied with to the satisfaction of the Responsible Authority.
The subdivision as shown on the endorsed plan must not be altered save, with the written consent of the Responsible Authority.
The owner of the land must enter into agreements with the relevant authorities for the provision of water supply, drainage, sewerage facilities, electricity, gas, and telecommunication services to each lot shown on the endorsed plan in accordance with the authority's requirements and relevant legislation at the time.
All existing and proposed easement 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.
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.
The car parking areas for both allotments must be constructed with asphalt pavement to satisfaction of the Responsible Authority.
The access points to lots from Forest Street shall be formally defined.
Entry and exit signs to be placed at the front of the site and the paving areas are to be suitably marked to ensure that a one way traffic flow is maintained on the site.
Drainage from existing structures must not cross property boundaries.
Stormwater discharge shall be no greater than 30 litres per second per hectare from carparking and access areas for a 1 in 10 year storm event.
A Stormwater Plan must be submitted for endorsement showing how stormwater discharge will be managed.
This permit will expire after two (2) years if the relevant plan of subdivision is not certified by the Responsible Authority, unless an extension of time is approved by the Responsible Authority. The written request for extension of time must be received before 3 months have elapsed after the date of expiry.
[1] Last dot point the application does not demonstrate that each lot proposed is capable of meeting the car parking requirements of the planning scheme. The proposal will result in an undesirable layout given the location of the proposed access ways and card parking.
[2] That is the Colac Structure Plan section Industrial Land Use Strategy
Laurie & Warren Plasterers Pty Ltd
Colac Otway SC [2009] VCAT 2168
Council's decision was varied. A permit was granted for a two-lot subdivision at 31 Forest Street, Colac, in accordance with endorsed plans and subject to the 19 conditions in Appendix 1.