defendant. The decision of the Responsible Authority was affirmed. No permit was granted for the land at 247 Great Ocean Road, Apollo Bay.
Key principles
The Tribunal refused a permit for a two-lot subdivision (615m² and 368m²) of a 983m² residential lot in Apollo Bay because the proposal was inconsistent with the lower density...
The Tribunal held that a holistic approach is required when evaluating subdivision applications, requiring foresight that residential development will be proposed for the vacant...
The Tribunal found that spacing between dwellings is a relevant consideration in subdivision applications, notwithstanding that the application was for subdivision only and not...
The Tribunal determined that the minimum lot size specified in DDO7 Schedule (450m² for Precinct 1) applies to single lots, not to the average lot size across a subdivision. The...
Issues before the court
Whether a subdivision application must be assessed by reference to future development potential and neighbourhood character objectives,...
Whether the minimum lot size requirement in DDO7 applies to individual lots or to the average lot size across a subdivision.
Plain English Summary
The Victorian Civil and Administrative Tribunal refused a permit for a two-lot subdivision in Apollo Bay because one of the proposed lots (368m²) was too small. The planning scheme required a minimum lot size of 450m² for this area, and the Tribunal ruled that this minimum applied to each individual lot, not to an average across multiple lots. The Tribunal also found that even if an exemption for smaller lots could apply, this particular lot wasn't suitable because any house built on it would likely be too large for the space, creating overcrowding and blocking views from neighbouring properties. The Tribunal was concerned that approving this subdivision would encourage similar applications, potentially leading to overdevelopment in this low-density coastal area. The decision emphasises that when assessing subdivision applications, decision-makers must consider what will likely be built on the new lots in the future, not just the subdivision itself.
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Judgment (7 paragraphs)
[1]
The applicant has weighed substantially on the fact that the proposal is for subdivision and not for development as such. It proposes that as the guidelines for Precinct 1 focus mainly on building development matters, little can be derived from them regarding a subdivision application alone.
Whether the exemption criteria for reduced lot sizes in DDO7 were satisfied.
Whether the proposal was consistent with neighbourhood character and the objectives of DDO7 Precinct 1.
Cited legislation
1 cited instrument linked from this judgment.
I consider that a more holistic approach is required, and that some foresight needs to be used in evaluating the proposal. One needs to accept that residential development will be proposed for the vacant subdivision lot and that a redevelopment of Lot 1 containing the existing dwelling will also occur at some time. It is wholly reasonable to consider the type of lots being proposed in the subdivision application, and the advantages and constraints they offer for future development proposals against current policy.
I am therefore not satisfied with arguments that spacing between dwellings is not a relevant consideration here. It is appropriate to consider the building envelopes proposed, together with what is on them now, and what type of development is likely to be sought on the lots. This is in context of considering the extent by which future development on the created lots can be expected to achieve and contribute to objectives that cover matters such as view sharing and spacing between buildings.
Inevitably my concerns relate to the implications of the smaller sub-minimum sized Lot 2 of 368m2, fronting onto Casino Ave, and its interface with each of Casino Ave, the dwellings opposite in Casino Avenue, and the larger subdivision Lot 1 on the review site.
The defined building envelope of 150m2 (10m by 15m) is setback 5.24m from the Casino Avenue frontage. The 150m2 is close to 41% of the lot area, not including the provision of a primary and a secondary car spaces. The probability must be high that construction of a two storey dwelling will be sought for the site on a building envelope of that size, and to provide for viewing over the roof of the existing (or a replacement) dwelling on Lot 1. (Council has requested that if a permit to subdivide is to be granted that this include a requirement to restrict building development on this subdivision lot to a single storey.) While it can be argued that lots between Casino Ave and Great Ocean Road can accommodate two storey dwellings without undue impact on 'shared' views, the reality is that where such has occurred, or may occur on single lots, they are or will be further down slope towards the Great Ocean Road. This has or will have less visual impact from Casino Avenue and from residences on the opposite side of Casino Avenue.
While views are not owned, the Planning Scheme does seek to promote view sharing as a reasonable outcome. As I consider that a direct consequence of the current subdivision proposal is that view sharing will be implicated to some degree from dwellings opposite in Casino Avenue I need to consider this matter in context of local policy. I need to consider 'what is reasonable'. Further, multiple subdivisions of the type sought in this application with small lots fronting onto this section of Casino Ave (including the one on the adjoining lot that is concurrently sought with this application) could have substantial visual impact from Casino Ave as a public place, and on view sharing from houses opposite in Casino Ave.
Further, I note that part of the existing dwelling will need to be demolished to enable the subdivision boundary between the lots on the review site to be located where proposed. The building envelope on Lot 2 would be 2m from its 'rear' or seaward common boundary with lot 1. With the suggestion that part of a rear bedroom will need to be removed to provide for the subdivision boundary it can be assumed that the 'new' rear wall of the dwelling will be at or near the rear boundary of Lot 1. This in effect means a narrow separation between building envelopes, and potentially of building walls (without consideration of eaves of around 2m. While it may be argued that this is a worst case scenario, I consider it to be a likely one. It does not fit with the objective of maintaining good separation between dwellings in this 'low density' nor the preferred coastal setting. I agree with Council that this concept better fits the DDO6 Medium Density concept for Apollo Bay.
I am unable to conclude that the above scenario is intended by the planning scheme for the Precinct 1 area, where an objective, as identified earlier in this decision, is 'facilitating a more spacious form of residential development' and achieving 'development density consistent with the coastal town character'.
I further need to note that the planning scheme identifies that 'A new lot should have an area as specified ...' In this case the minimum lot size of 450m2 is specified as the minimum. This statement specifically refers to single lots. It does not refer to the average lot size in a subdivision being above 450m2. I am therefore not able to interpret the minimum as relating to the average across lots. Had that been the intended position I consider that it would have been unambiguously stated as such. It therefore follows that consideration of the exemptions to the minimum lot size becomes important.
[2]
The Planning Scheme identifies that an exemption may be permitted where all of the exemption criteria apply. Thus even if all criteria do apply it does not automatically follow that a permit will be approved. The proposal needs to be considered in its local context. I accept that the land contains little of no vegetation, and that a landscape plan has been prepared by the applicant, albeit late in the process and without request from Council. I also accept that overall the land slopes around 4m over close to 60m (about 6.7 per cent) and as such does not exceed 10 per cent). However, I do not consider the smaller Lot 2 to be particularly versatile given Council's assessment that a double storey development on the site would present a plot ratio of around 81per cent (0.8:1) which well exceeds the exemption criterion which specifies that where a 450m2 density applies, the development density may be reduced to 300m2 provided the gross floor area of all buildings (including outbuildings and externally roofed areas) does not exceed a plot ratio of 50 per cent (0.5:1). On this basis only a single storey dwelling proposal would be expected to comply with the standard.
I therefore have sympathy with Council's request (if the permit is to be approved) to limit a dwelling on the lot to a single storey. I also consider it likely that ongoing pressure would be applied to Council to permit double storey developments on Lot 2, and on any equivalent local lots fronting Casino Ave, where this clearly does not have policy support.
As a lesser matter, I also consider that double-storey development on Lot 2 would be visually prominent from Casino Ave, although this is not a key community viewing point.
On the matter of follow on implications, I am influenced by the lot analysis presented in Council's submission to the Tribunal. In short, Council has identified that in the DDO7 area, 137 lots (12 per cent) of the lots in Precincts 1,2 and 4, which are all subject to the 450m2 minimum lot size requirement, remain capable of being subdivided. In addition there are a further 619 lots (51%) within those precincts with potential to be subdivided down to 300m2 if the exemptions were to be applied. The average size of lots within Precinct 1 that contains the review land is 611m2, and within the Precinct, which largely fronts onto the Great Ocean Rd 117 lots could potentially be further subdivided down to 300m2 if the exemptions were to be applied. On this basis there is considerable potential for flow on pressures for inappropriate subdivisions with undersized lots in this area if this proposal was to be approved.
Relevant to the above, the review site at 998m2 has potential to be subdivided into two lots that both exceed the 450m2 minimum.
[3]
I was also referred to Tribunal decisions where subdivision proposals have been refused by the Tribunal, and to two two-lot and one three-lot subdivisions were permitted within Apollo Bay. Regarding the approvals:
In Seifert[1], the Tribunal set aside a decision of Council and permitted a two-lot subdivision at the undeveloped 255 Great Ocean Rd, close to the current review site. In that instance the two subdivision lots each have an area of 522m2 which exceeds the 450m2 minimum lot size applicable in Character Precinct 1 under DDO7. The circumstances and key issues therefore differed markedly from those at issue in this case.
In Moore[2], the Tribunal approved a subdivision at 9 Ramsden Ave, two blocks behind the Apollo Bay Shopping strip. I found little to be taken from that decision for determination in this matter as the site is in a very different character precinct dominated by built form, than the review site here.
In Buckham[3], the Tribunal granted a permit for the subdivision of the land at 42 Montrose Ave, Apollo Bay into three lots. That site is at the rear of the town around 680m west of the Apollo Bay shopping strip, in a very different setting and character Precinct in DDO7. I consider the decision on that matter to also have little direct relevance to the matter being considered here.
[4]
On balance I consider that to permit the current subdivision application would have substantial repercussions for planning in Precinct 1 in the DDO7 area that are not consistent with planning policy objectives in the Planning Scheme.
The proposed lot sizes do not satisfy policy objectives, and I do not consider that an exemption for a smaller lot size has been justified.
The proposal is not consistent with neighbourhood character in this important access character precinct into Apollo Bay.
Approval of the application would be likely to result in adverse follow-on planning implications, regarding ongoing pressure for other non-conforming subdivision applications in character Precinct 1.
I have therefore determined not to approve the current proposal to subdivide the land at 247 Great Ocean Road Apollo Bay.