(a) drainage retention to the satisfaction of the Responsible Authority being provided within Lot 2 prior to the occupancy of any dwelling built on Lot 2; and

(b) a stormwater drainage system that meets the current best practice performance objectives for stormwater quality to the satisfaction of the Responsible Authority being provided within Lot 2 prior to the occupancy of any new dwelling developed on Lot 2.

The reasonable costs of the preparation and registration of this 173 Agreement must be met by the Permit Holder and the 173 Agreement must be executed and registered prior to the issue of the Statement of Compliance.

• Condition 10 is deleted (by consent)
• Condition 13 is deleted.

Callum MacLeod & Catherine Baird appeared in person

1. This is a conditions appeal involving the land at 24 Erang Drive in Mount Eliza, and the existing Planning Permit No. P06/2671 dated 14 February 2008 ("Permit"). It is proposed to "subdivide the land into two (2) lots in accordance with the endorsed plans".
2. Taking into account my ruling by consent at the hearing of this matter to also allow the Applicants to challenge Conditions 6 and 7 of the existing Permit, the Permit conditions being challenged by the Applicants are as follows:
   1. Prior to the certification of a Plan of Subdivision by the Responsible Authority, an amended plan generally in accordance with this application must be submitted to show:

(a) A restriction under the Subdivision Act 1988 that prevents buildings being located within 5 metres of the rear boundary at the rear lot;

1. Prior to the issue of the Statement of Compliance, detailed construction plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. The plans must be drawn to scale with dimensions and 4 copies must be provided. The plans must show:

(a) The existing dwelling drained by means of a drainage system designed to retain a post development 1 in 10 year storm event for the critical storm duration on the property. Discharge from site must be limited to an equivalent pre-development flow based on a 1 in 2 year storm event for the critical storm duration;

(b) Provision of an underground drainage system to discharge stormwater from lots 1 and 2 to the kerb and channel in Baden Powell Drive utilising the existing easement located on 105 Baden Powell Drive;

(c) Each lot being provided with a drainage property inlet to be independently and directly connected to a drain of the Responsible Authority; and

(d) A stormwater drainage system on the site designed so that stormwater runoff exiting the land meets the current best practice performance objectives for stormwater quality, as contained in the Urban Stormwater Best Practice Environmental Management Guidelines (Victorian Stormwater Committee, 1999) as follows:

80% retention of the typical annual load of suspended solids;

45% retention of the typical annual load of total phosphorous;

45% retention of the typical annual load of total nitrogen; and

70% retention of the typical annual load of gross pollutants.

In lieu of meeting the above standard on site, the stormwater quality objectives may be achieved by demonstrating to the satisfaction of the Responsible Authority, that the intended outcomes of Clause 56.07-4 of the Planning Scheme have been met.

1. Prior to the issue of the Statement of Compliance, all drainage works must be completed to the satisfaction of the responsible authority in accordance with the plans and computations approved by the responsible authority.
2. Prior to the issue of a Statement of Compliance vehicular crossing(s) must be constructed to the road to suit the proposed driveway(s), with an existing crossing or crossing opening to be removed and replaced with footpath, naturestrip, and kerb and channel to the satisfaction of the responsible authority.
3. Prior to the issue of a Statement of Compliance, the subdivider must provide a reinforced concrete or segmental paving vehicle crossing to each lot with the vehicle crossing permit being obtained from the Responsible Authority prior to the commencement of the works.
4. Prior to the issue of a Statement of Compliance, the subdivider must pay a Public Open Space Contribution to the Responsible Authority, in accordance with the Schedule to Clause 52.01 of the planning scheme. Such payment will satisfy in full any Public Open Space requirement under the planning scheme.
5. I have discussed further below the basis on which each of these conditions have been challenged by the Applicants. However I can indicate at this stage that at the hearing of this matter, Mr Nicol on behalf of Council conceded that the contentious Condition 10 was unnecessary and by consent could be deleted. Hence the balance of this decision deals with the other contentious conditions but has taken it as a "given" that Condition 10 can be deleted.
6. The hearing of this matter occurred before me on 30 July 2008. At this time I heard submissions on behalf of Council from Mr Nicol, together with submissions in person from the two Applicants.
7. At the end of the hearing of this matter, I gave directions to the parties, allowing them further time to try to reach a consent position regarding how the existing Conditions 6 and 7 might be more concisely and sensibly re-worded. In due course I received further correspondence from both parties in this regard. I have taken this further correspondence into account in my final Orders and Reasons.
8. In overview, noting that Condition 10 can be deleted by consent, my findings otherwise are as follows:
   • I am unconvinced that Condition 1(a) should be deleted. I regard it as quite sensible and reasonable that there be a minimum 5 metre setback in relation to any new dwelling on the new Lot 2;
   • in relation to Conditions 6 and 7, and take into account the further correspondence which I have received since the hearing, I have inserted the revised versions of these conditions, but with some further editing by myself;
   • keeping in mind that it was common ground at the hearing that some nearby properties have a sealed crossover and some do not, and as no brand new crossover need be created, I am comfortable that no sealing of the existing crossovers is required and hence Condition 13 can be deleted;
   • I am not satisfied that an adequate case has been made out for the deletion of the requirement under Condition 15 for a private open space contribution to be made. In particular, I am unconvinced that the necessary exemption under Clause 52.01 of the Planning Scheme has been made out.

1. I have already set out above the permission granted by the Permit and the text of the contentious conditions.
2. In relation to the subject land, it has an overall area of 5525 square metres and already has two crossovers to the street. The existing dwelling on the site is located across the property about 37 metres from the front boundary. The rear of the site is undeveloped but features substantial vegetation, bearing in mind that there is a slope across the site. The general character of the area is one of existing residential development, but with predominantly larger scale developments often containing substantial dwellings.
3. With respect to the proposed two lot subdivision, the new Lot 1 will be 2618 square metres and will contains the existing dwelling. The new Lot 2 will constitute the rear lot, with an area of 2600 square metres. The overall proposed layout one of a battleaxe style subdivision, with access to the rear lot being along a "handle" on the northern side of the site.
4. Turning to the relevant planning framework, the site is zoned Residential 1, with Clause 32.01-2 requiring a planning permit to subdivide the land. In addition, there is an applicable Design and Development Overlay Schedule 5 (Environmental Design), together with a Vegetation Protection Overlay Schedule 1 (Township Vegetation). I note that although Schedule 4 to the DDO otherwise prescribes that only one dwelling can be constructed on a lot, the situation here in an exception in that the subject land falls within the "exception area" set out in the DDO4 as follows:

The land is located east of Canadian Bay Road, Mt Eliza (other than in the area between Jacksons Road and Williams Road, West of Watts Parade, Mt Eliza) and no more than two dwellings are proposed for every 2600 square metres of site area.

1. The DDO4 also includes the following requirement:

The minimum area of any lot within a subdivision must be no less than 2500 square metres and each lot must be able to contain a rectangle a rectangle with minimum dimensions of 25 metres x 35 metres.

1. In relation to the more detailed aspects of the DDO4, I refer to the useful discussion of same found at pages 8 and 9 of Mr Nicol's written submission.
2. In relation to the Vegetation Protection Overlay, it was conceded by Mr Nicol at the hearing that this overlay has no relevance here, as the proposal does not involve any vegetation removal.
3. Clause 52.01 dealing with Private open space contributions is relevant here, as is the Clause 56 Residential subdivision provisions and the Clause 65 General decision making criteria.
4. Otherwise, I have set out why I have reproduced below the useful table setting out the relevant policies found at page 10 of Mr Nicol's written submission.

21.02: Profile of the Mornington Peninsula (recreation and tourism)

21.03-1: The regional role of the Mornington Peninsula

21.04: Mornington Peninsula Strategic Framework Plan

21.06: Strategic Framework and the Peninsula's Settlement Pattern

52.01- Public open space contributions and subdivision

1. In simple terms Clause 52.01 provides that where it is proposed to subdivide land, a contribution to the Council for public open space must be made if there is an amount specified in the Schedule to this clause. In this case, Schedule 2 the Maroondah Planning Scheme requires a 5% contribution for all subdivisions.
2. There is also an exemption arrangement provided for in Clause 52.01, as follows, with the most relevant bullet point highlighted by myself.

A subdivision is exempt from a public open space requirement, in accordance with Section 18(8)(a) of the Subdivision Act 1988, if:

• It is one of the following classes of subdivision:
  • Class 1: The subdivision of a building used for residential purposes provided each lot contains part of the building. The building must have been constructed or used for residential purposes immediately before 30 October 1989 or a planning permit must have been issued for the building to be constructed or used for residential purposes immediately before that date.
  • Class 2: The subdivision of a commercial or industrial building provided each lot contains part of the building.
• It is for the purpose of excising land to be transferred to a public authority, council or a Minister for a utility installation.
• It subdivides land into two lots and the council considers it unlikely that each lot will be further subdivided.

1. Before embarking on making my main findings, it is useful at this point to set out some more straight forward preliminary points.

No discretion re percentage payable under Clause 52.01

1. Firstly, whilst the matter is not entirely settled, I accept that the thrust of the relevant case law stands for the proposition that where Clause 52.01 of the Planning Scheme sets a particular figure for the necessary open space percentage payment (eg 5%), then the discretionary elements as to the percentage payable that apply under Section 18 of the Subdivision Act 1988 are excluded. In particular, the cases of Tucker v Mornington Peninsula SC [2006] VCAT 1780 and Hassta Holdings Pty Ltd v Maroondah CC [2007] VCAT 2445 support this position.
2. The reason I have qualified this statement is that I acknowledge that some doubt was created by the relevant comments of Justice Morris (as he then was) in Fletcher v Maroondah CC [2006] VCAT 2205, which I understand is currently subject to review in the Victorian Court of Appeal.
3. However it is also clear that despite the removal of this discretion if the necessary amount of contribution is set out in the Schedule to Clause 52.01, there is still an ability to apply the various exemptions under the balance of Clause 52.01. In other words, even if a person wishing to subdivide land prima face needs to pay the full percentage required as per the Schedule to Clause 52.01 (eg 5%), it may still be possible for that person to rely on an exemption so as avoid needing to pay this amount.

Can the open space contribution payable under Clause 52.01 be applied to only part of the overall land being subdivided?

1. I turn now to whether the requisite open space contribution under Clause 52.01 needs to be paid in relation to part or all of the subject land. By way of comparison, it is clear to me that Clause 18 from the Subdivision Act expressly deals with this issue, as Clauses 18(1)(a), (b) and (c) each use the words "... all of the land in the subdivision". As the relevant text in Clause 52.01 does not include any equivalent use of these words, I acknowledge that the situation is not black and white with Clause 52.01 in this regard.
2. Senior Member Byard has in the previous decision of Tucker v Mornington Peninsula made a specific finding on this issue, where he stated as follows.

The responsible authority has dealt with the assessment of the cash contribution for public open space, but not in accordance with cl.52.01. It has contemplated separate assessments in relation to lots 1 and 2 whereas it should be 5% of the site value of all the land being subdivided for residential purposes. Clause 52.01 does not actually say all the land being used for that purpose, but that is clearly the meaning. The expression "all the land" appearing in previous legislative manifestations of these provisions has been omitted in cl.52.01.

1. While I can see room for different views on this issue, in the final result, I have dealt with this proceeding on the basis that any necessary public open space payment needs to apply to all of the land being subdivided, bearing in mind that I am not aware of any other previous Tribunal decision specifically dealing with this issue, other than the statement above by Senior Member Byard.

Previous Tribunal decisions regarding how to apply the term "unlikely"

1. Dealing now with any helpful previous Tribunal comments regarding how to interpret the word "unlikely", the previous decision of Revill v Stonnington CC [2005] VCAT 2583 confirms that in determining whether land is unlikely to be further subdivided, an objective review needs to apply rather than going off the subjective stated intentions of the current or future land owners. In other words, the mere fact that the current or future owner has stated that he or she has no intention to subdivide the land in future does not in itself carry any weight.
2. It is also clear from previous decisions that Clause 52.01 does not distinguish a timeframe for the likelihood of further subdivision. In Thompson v Maroondah CC [2007] VCAT 2455, Member Komesaroff made the following useful statement.

The test is whether it is unlikely that a proposed new lot will be further subdivided. There is no time constraint on when such further subdivision will occur. I could not say that it is unlikely that proposed lot 1 will be resubdivided in the future. I have seen plenty of recently renovated dwellings demolished (albeit in a middle ring suburban environment) to make way for two double storey townhouses

1. Give that the word "unlikely" is not a black and white term, the following passage from Senior Member Byard in his Tucker v Mornington Peninsula decision is instructive.

The word "unlikely" does not mean "impossible". It does not necessarily mean that further subdivision is "likely". The notion of "further" subdivision necessarily involves a consideration of future possibilities and whether such possible subdivision is "unlikely". It does not impose a limit as to the extent of time into the future that is likely to be considered.

1. I shall now deal with my findings in relation to each contentious condition in more detail as follows:

1. I reject the challenge to this Condition 1(a), for the following reasons. The thrust of this condition is that any new dwelling on the new rear lot must be set off the rear boundary by at least 5 metres. This was challenged by the Applicants on the basis that this requirement is unduly onerous and restrictive. In particular, there was some discussion regarding other nearby properties have dwellings which apparently are set off the nearest boundary by less than 5 metres.
2. I regard this as missing the fundamental point that it is the rear setback we are focusing on here. How close other nearby properties extend to their side boundary is I think a quite different issue. In other words, in terms of orderly planning, I see it as being essential that we avoid a situation where any new dwellings are squashed too close to the rear boundary, in the interests of the neighbouring occupiers maintaining a reasonable sense of openness in terms of the use of their backyards. Even if some other nearby dwellings have been built relatively close to their side boundaries (which I think is relatively common and usually does not cause angst), this does not change my concern that:
   • the average person in my view will expect a more open back yard area, including some buffer between any other dwelling on the other side of their back fence; and
   • hence we need to be cautious regarding how close any new dwelling no the new rear lot extends to its rear boundary.
3. In summary, I regard it as entirely reasonable and sensible that Condition 1(a) require that any new dwelling on the new rear Lot 2 extend no closer to its rear boundary than 5 metres. Furthermore, I would be quite surprised if any new owner of this new Lot 2 at a future stage felt comfortable building a new dwelling any closer than 5 metres to the rear boundary.

1. At the hearing of this matter, by consent, I allowed the Applicants to challenge Conditions 6 and 7 of the Permit, notwithstanding that this have not been set out in the Application for Review documentations lodged by the Applicants. However it became clear by the end of the hearing that there was real scope for a consensus position to be reached regarding a more concise and sensible version of these currently rather long winded conditions.
2. In due after the hearing I received further correspondence from the parties, regarding what was essentially a consensus new version of these conditions.
3. Although I have largely utilised this consensus new version, I have made certain modifications to deal with what I regard as some inadvertant drafting flaws in new version of these two conditions as provided to me. In particular:
   • "wearing my lawyer's hat", in my experience is the normal and sensible arrangement that any new Section 173 has to be lodged on the parent title, rather than trying to achieve a situation (as was proposed) that the new Section 173 is only lodged on the fresh new titles resulting from the subdivision process. The reality here is that it is important in terms of public confidence in the integrity of the subdivision process that any significant requirements such as a new 173 Agreement are dealt with on a upfront basis, rather than trying to impose a 173 at a later stage, when it may be more difficult for Council to ensure that due process is properly followed;
   • whilst noting that there was agreement between the parties to use the term "practical completion" rather than "occupancy", I am quite uncomfortable regarding what I see as the real potential for uncertainty/dispute regarding what exactly "practical completion" means. Rather, I prefer the use of the term "occupancy" as was originally proposed by Council, as this is a simple term which can be easily understood and enforced by Council.

1. I have deleted Condition 10 as per the consent position reached by the parties.

1. I am satisfied that this condition can be deleted. I would have been more concerned about deleting this condition if:
   • every other nearby property in the street has a sealed crossover; or
   • the proposal required the creation of a brand new crossover; or
   • the existing crossovers had no drainage aspect at all

1. Rather, the reality is that the existing two gravel crossovers for the appeal site appear to be in reasonable condition, incorporate basic drainage features already, and sit in the context of some other nearby properties also featuring a gravel rather than a sealed crossover.
2. In this situation I am satisfied that it would be an overkill to insist that the two existing crossovers must be sealed, where this is being resisted by the Applicants. I also have some sympathy for their argument that having sealed crossovers would be out of character with the semi-rural character of the locality.

1. I have already set out above the most relevant text from Clause 52.01 of the Planning Scheme, which essentially allows a private open space requirement to be exempted if Council considers "... unlikely that each lot will be further subdivided". The critical word here is "unlikely", and I have included above some helpful discussion of previous decisions how we should interpret this word.
2. In terms of the position of the parties, essentially the Applicants were arguing that it would be so difficult to obtain further subdivision approval for the two new lots, that this "unlikely" test is satisfied here. Following this line of thinking, I should delete Condition 15.
3. In response, Mr Nicol for Council argued that (keeping in mind the broad interpretation of "unlikely" taken in previous decisions by the Tribunal) the circumstances here do not justify the exemption being applied. That is, Mr Nicol argued that I cannot be sufficiently assured that it is unlikely that any further subdivision of the new lots will occur.
4. On balance, I favour the submissions of Mr Nicol in this regard. I note that he relied on certain precedents, which I agree carry considerable weight and are persuasive. I refer here in particular to the relevant text from the previous decision of Rowe v Mornington Peninsula Shire Council [2004] VCAT 1689, together with Tucker v Mornington Peninsula Shire Council No.3 [2006] VCAT 1780. There was also reliance by Mr Nicol on the case of Coastal Surveys v Mornington Peninsula Shire Council [2008] VCAT 125, together with the relevant aspects of the Panel Report dated August 2007 in relation to "Mornington Peninsula Planning Scheme Amendment C87 Mount Eliza Woodlands".
5. In summary, I agree that the various relevant precedents, when applied to the circumstances before me, provide a persuasive case that a quite rigorous approach needs to be taken to the Tribunal in assessing whether the relevant exemption under Clause 52.01 has been satisfied, and that the circumstances in question here do not satisfy this requirement. Bearing in mind that each of the new lots will be over 2600 square metres in size, I agree with Mr Nicol that the sheer size of the new lots in terms of their future subdivision potential makes it difficult to apply the exemption here.

1. In summary, the outcome here is as follows:
   • I have deleted Condition 10 as per the consent position and have resolved myself to delete Condition 13;
   • I have essentially amended Conditions 6 and 7 as per the consensus position between the parties, but with some minor editing; and
   • I an unconvinced that Conditions 1(a) and Condition 15 should be deleted.
2. In terms of the debate under Condition 15 whether or not it can be said that it is "... unlikely that each lot will be further subdivided", I can also indicate in passing that I do not see it as being an adequate solution for there to be a 173 Agreement placed on the two new lots, which provide that neither the new lots can be further subdivided at a future stage. I make this comment because I am also aware that there is the ability for an owner at a future stage to seek an order from the Tribunal under Section 184(4) of the Planning and Environment Act 1987 that any such agreement should no longer apply to the subject land, if the Tribunal can be convinced that it is "... inappropriate that the agreement should continue to apply to the land and the owner".[1]

[1] See Section 184(4)(b) of the Planning and Environment Act 1987