2. A boundary realignment permit exemption provision under the planning scheme applies to these lots once title has been granted.

2 The background to this application arises from the following circumstances. The subject land is an irregular shaped parcel with a long frontage (approximately 700 metres) to Broadgully Road, Diamond Creek and an area of 8.014 hectares. There is an existing dwelling on the land and an outbuilding which was previously a dwelling. The land is included in a Residential 1 Zone and a Development Plan Overlay, DPO2 - Area B (Designated Growth Area). Planning permit 225.2004/14P was issued on 1 November 2004 for a two lot subdivision. Lot 1 has an area of 4000m2 and contains the existing house. Lot 2 contains the balance of the land and has an area of 7.616 hectares. The permit is still current and certification of the plan of subdivision has not been completed. Condition 2 of the permit provides as follows:

2. The layout of the proposed subdivision as shown on the endorsed plan, shall not be altered or modified without the prior written consent of the Responsible Authority.

3 In November 2004 Mr Maino applied for another 2 lot subdivision. In this application the proposed excision for the existing house was larger and had an area of 0.731 hectares. This permit application was refused by council as it was considered to be not generally in accordance with the approved development plan under the Development Plan Overlay. Following an application for review to the Victorian Civil and Administrative Tribunal, the Tribunal determined to affirm the responsible authority's decision and no permit was granted.[1]

4 Mr Maino wishes to realign the title boundary of Lot 1 on the endorsed plan under planning permit 225/2004/14P such that Lot 1 is enlarged by 10 metres in width thus increasing the area of Lot 1 by 800m2.

5 It is his contention that once the plan of subdivision is registered, he would not require a permit to carry out this boundary realignment by virtue of the exemption contained in clause 62.04 of the Nillumbik Planning Scheme. The relevant aspect of clause 62.04 provides as follows:

Any requirement in this scheme relating to the subdivision of land does not apply to:

•

A subdivision which realigns the common boundary between two lots if all the land is in one urban zone and any of the following apply:

s Any lot that is reduced in area meets the minimum lot area and minimum dimensions (if any) specified for the zone. This does not apply if the area of the smaller lot is limited by a provision of this scheme, or by a condition of a planning permit.

s There is no minimum lot area specified for the zone, the area of the smaller lot is more than 230 square metres, and the area of either lot is reduced by less than 30 square metres.

s There is no minimum lot area specified for the zone, the area of the smaller lot is 230 square metres or less, and the area of either lot is reduced by less than 5 percent or by less than 30 square metres, which ever is lesser.

s The new boundary coincides with a boundary fence that is more than five years old. This does not apply if all the land is in one ownership.

6 It is common ground that all the land is in one urban zone (Residential 1 Zone). At the hearing it was assumed by parties that the first sub-dot point and set of criteria was applicable. Argument focussed on two issues:

•

Whether the area of the smaller lot was limited by condition 2 of the planning permit.

•

If not, whether shifting the boundary of Lot 1 by 10am constituted realignment of the common boundary between two lots.

7 I have addressed both these issues but ultimately I have decided that the parties have misinterpreted the first sub-dot point and it does not apply in this case. In my view, none of the sub-dot points in this part of clause 62.04 relating to realignment of a common boundary are applicable to the circumstances of the matter.

Is the area of the smaller lot limited by a condition in the planning permit?

8 Applying the first criterion, the parties proceeded on the basis that the lot that is reduced in area (Lot 2) meets the minimum lot area and minimum dimensions (if any) specified for the zone. In fact there is no minimum lot area or dimension specified for the Residential 1 Zone and I will address the correctness of parties' interpretation of this criterion later. The question that the parties considered relevant was whether the area of the smaller lot (Lot 1) is limited by a condition of a planning permit. It is this question that the first of the declarations relates to. In other words, does condition 2 of the subdivision permit constrain the opportunity to realign a common boundary between two lots under clause 62.04.

9 Despite an initial response to the contrary, the council's view at the hearing was that should the existing subdivision permit be acted on and new titles released, the subdivision permit would become spent at this point and as such the conditions of the planning permit would become inoperative. This was also Mr Maino's view and he relied on the decision of Justice Morris and Member Komesaroff in Cope v Hobsons Bay CC[2] in support of this proposition.

10 Cope's case was concerned with a planning permit for development of a building that contained a condition similar to condition 2 in the present case. The building in Cope's case had been completed in accordance with the endorsed plans. The question arose whether the development could be altered under the secondary consent provision in the condition of the permit to allow construction of an additional level. In considering whether the permit was spent, the Tribunal said:

[42] It is clear that the development authorised by the permit has been carried out. But does it follow that the permit itself is spent? We think not.

[43] A planning permit which authorises the development of land may or may not have continuing relevance after the development has been carried out. The answer depends on both the nature of the development and the form of the permit (including the conditions in the permit).

[44] In the case of a permit (or, for that matter, a planning scheme provision) allowing the subdivision of land, it has generally been accepted in Victoria that once the subdivision has been effected and new titles have issued, the permit (or planning scheme provision) is no longer relevant; and any condition which purports to have an independent operation after this time is invalid. Thus a responsible authority has not been able to enforce a condition imposed upon a subdivision by a planning scheme provision requiring acoustic protection to new dwellings once the subdivision had been carried out: see City of Whittlesea v Jala Pty Ltd. Similarly a condition imposed upon a subdivision permit requiring the provision of building envelopes has been conceded to be of no independent force or effect after the subdivision has been carried out: Kruska v Whittlesea City Council.

[45] A case that departs from this principle was the decision of the tribunal in Bayside City Council v Sullivan, where an enforcement order was granted requiring an owner of a lot, created by a recent subdivision, to enter into a section 173 agreement. The permit for the subdivision was conditional upon such an agreement being entered into, but the then owner had persuaded the responsible authority to issue a statement of compliance in relation to the subdivision without the agreement being entered into. The decision in this case was clearly a just outcome; but as a matter of principle, as Mr Testro acknowledged, it goes against the grain of other cases.

[46] Very recently the High Court of Australia has decided in Hillpalm Pty Ltd v Heaven's Door Pty Ltd that a condition imposed upon a permit allowing the subdivision of land could not be enforced against a new owner of a lot created by the subdivision. The decision of the majority of the court did not specifically contend that the permit was "spent", but relied upon the nature of the condition in question; but the reasons of the majority are consistent with such a conclusion.

[47] It is not necessary to finally decide the matter in this case, but, like the President in Whelan v Baw Baw Shire Council, we tend to the view that once a subdivision is carried out, the permit allowing it, including any conditions, is spent. As the High Court observed in Hillpalm, if a council consent for a subdivision operates to create a continuing obligation, or a right in rem, that affects a later transferee of a lot in the subdivision, that would present a fundamental question about how the creation of such an obligation or right would be consistent with the effective operation of a system of Torrens Title. Our tentative view is that an obligation imposed upon a subdivider which had not found its way onto or attached to the title of a lot could not bind a new owner of the lot; as this would be inconsistent with section 42 of the Transfer of Land Act 1958.

[48] But when it comes to a permit authorising the construction of a building, considerations based upon the principle of indefeasibility of title are not relevant. Hence it is necessary, in such a case, to consider the nature of the permission and the form in which it was granted.

11 Ultimately, the Tribunal decided that the condition allowed the responsible authority to give its written consent to altering the development from that shown on the endorsed plans.

12 I consider that the law stated by the Tribunal in Cope's case (even though it may have been expressed as obiter dicta[3]) represents the law in Victoria so far as it relates to the operation of a condition in a permit for subdivision. In other words, I agree that once this subdivision is carried out by registration and the issue of new titles, the permit allowing it, including condition 2, is spent. The council could not purport to alter or modify the layout of the proposed subdivision by giving its consent under condition 2 because the authority to give that consent would be spent.

13 However, although the operation of a condition in a permit for subdivision may be spent once subdivision is carried out, this does not mean that for all purposes the effect of a condition is spent. I consider that one of the rare situations where the effect of a condition in a permit for subdivision would persist after the subdivision is carried out is contemplated by the particular provision in clause 62.04 that is in question here.

14 To paraphrase clause 62.04, it provides that any requirement in the planning scheme relating to the subdivision of land does not apply to a subdivision which realigns the common boundary between two lots if all the land is in one urban zone and any lot that is reduced in area meets the minimum lot area and minimum dimensions (if any) specified for the zone. This does not apply if the area of the smaller lot is limited by a condition of a planning permit. Therefore, if there was a condition in the planning permit that authorised the original subdivision which required a lot or lots to have a minimum lot area or minimum dimensions, a subdivision to realign the common boundary between two of the lots on the subdivision would not be allowed under clause 62.04. A permit would need to be obtained under the zone and any overlay provisions. This makes sense because otherwise it would be too easy to circumvent the effect of condition in a permit specifying a minimum lot size or dimension by simply registering the subdivision and then carrying out a boundary realignment under clause 62.04. I do not consider that clause 62.04 is intended to be used in this way and I consider that the words: This does not apply if the area of the smaller lot is limited... by a condition of a planning permit, are intended to prevent this from occurring.

15 I do not consider it could be argued in such a circumstance that the effect of such a condition is spent in the context of the operation of clause 62.04. The reference to a condition of a planning permit in clause 62.04 can only mean reference to a condition in a permit that has been acted upon and that has resulted in the registration of a subdivision.

16 To be effective in the context of clause 62.04, a condition must specify a minimum lot area or minimum dimension. A general condition such as condition 2 requiring a layout of a proposed subdivision as shown on an endorsed plan not to be altered without consent of the responsible authority would not satisfy this requirement. Endorsed plans for subdivisions invariably show the dimensions and area of lots, but this does not necessarily mean they are to be regarded as minimum areas or dimensions. In my view, the purpose of this provision (and other similar provisions) in clause 62.04 is to safeguard the effect of conditions in permits relating to subdivisions, which have specified a minimum area or dimension as a precondition to the subdivision occurring, from being undermined by allowing a further subdivision without the need for a permit. A resubdivision may still occur but with a permit. A permit offers the opportunity to scrutinize whether previous permit conditions relating to minimum areas or dimensions remain appropriate.

17 Therefore, with respect to the first declaration being sought, it would be said that:

Condition 2 of permit No 225/2004/14P would not prevent the operation of clause 62.04 of the Nillumbik Planning Scheme to allow a subdivision which realigns the common boundary between the lots on the subdivision without a permit following registration of the subdivision and issue of titles for the lots.

18 The question that then arises is what purpose would be served by making this declaration. The subdivision has not been completed. The council has indicated it is willing to give its consent under condition 2 to a modification of the proposed subdivision layout, which would shift the eastern boundary of Lot 1 by 10 metres thereby enlarging Lot 1 by 800m2. Modifying the plan of subdivision before it is registered by this means would be a far more efficient and cost effective means of achieving the outcome that Mr Maino says he wants.

19 If Mr Maino does not pursue this course of action, it raises the spectre of whether his real intention is to enlarge Lot 1 further to effectively achieve the subdivision he was previously refused. This leads to a consideration of the second declaration that is sought. Does shifting the eastern boundary of Lot 1 by 10 metres come within the ambit of the concept of the realignment of a common boundary provisions of clause 62.04? If so, could further realignments be made? What is the limit to what constitutes realignment of a common boundary between two lots? Could clause 62.04 be used to achieve the subdivision that was refused by the Tribunal?

What constitutes the realignment of a common boundary?

20 I do not consider that the wording of clause 62.04 is without difficulty. The relevant provision provides that no permit is required for a subdivision which realigns the common boundary between two lots if various criteria are met.

21 Neither party referred me to any cases in which clause 62.04 is discussed. My own research has led me to the following cases.

22 Tony Jeavon Surveyors v Colac Otway SC[4] was decided after this present case was heard. Member Martin decided that a proposed two lot subdivision did not have the benefit of the clause 62.04 exemption, but rather needed to be assessed on its merits in the ordinary way. Member Martin referred to two conflicting lines of authority, represented by McMahon v Shire of Cranbourne[5] and Peters v Shire of Cranbourne[6], which I will refer to later. In reaching his conclusion, he said:

[22] ...I consider it more appropriate that I should exercise some caution in expanding the scope of the Clause 62.04 exemptions. In other words, I consider that by its nature an exemption from a permit trigger is intended to be "the exception to the ordinary position", and it follows that the Tribunal should not lightly expand the type of proposals which benefit from the exemption. It should not be forgotten that where a proposal fails to gain the benefit of an exemption, the proposal can still go ahead for assessment on the merits (which may well still result in the proposal gaining merits approval and going ahead). It is not as if the failure to benefit from the exemption here will result in a "prohibition" situation.

23 The essence of his decision is that "one must look at the existing situation in judging whether the proposal will result in an actual common boundary realignment", and that "a 'common sense' reading of the relevant Clause 62.04 text indicates that an existing common boundary must be realigned"[7].

24 Crockett v Shire of Eltham[8] was a case in which the President of the Administrative Appeals Tribunal, Judge Fagan, in considering the equivalent of clause 62.04[9] held that a proposal to subdivide two existing rectangular allotments, in effect by consolidating both lots into one and dividing it into two battle-axe blocks, was not a realignment of a common boundary. It obliterated the existing common boundary and created an entirely different common boundary thereby creating two entirely new blocks. He distinguished the case of Peters v Shire of Cranbourne, which case, he said, "involved no analysis of the meaning of the word 'align'. With respect to the subdivision before him, Judge Fagan said:

It seems to me that the subdivision proposed in the present case is much more than and different from a subdivision which realigns the common boundary between two lots. ...

This proposed subdivision creates entirely new blocks. It does not at all realign the common boundary between two lots. ...

In terms of the context in which the word "realign" is to be found in Clause 11.2.2, there are considerations wider than that simply the word is set in provisions requiring essentially minimum sized allotments, so as to justify a wide interpretation of the word. The reality is that the word appears in the total context of a planning scheme with all that involves in the way of planning controls on the use and development of land.

It is to be noted that the Planning Scheme in this case where the proposed subdivision does realign a common boundary, exempts a subdivision from the general requirement under the Scheme for a planning permit and, to that extent, from planning control.

It was argued for the Applicants that planning control would not be defeated overall because of the requirements by the Scheme that a planning permit is required for construction of any house on the new lots. That consideration however begs the different and real question involved in this case as to whether the proposed subdivision is exempt and which if answered affirmatively may create an inappropriate unusable residential allotment should a planning permit for construction not issue.

Having regard to the effects of the proposal in question with regard to the land in question, it cannot be it seems to me, that Clause 11.2.2 was intended to have the effect of exempting the proposal in question.[10]

25 The reasoning adopted by Judge Fagan is very similar to Member Martin's reasoning in Tony Jeavon Surveyors: the exemption is an exception to the ordinary position when a permit would be required and when all the normal planning policies and decision guidelines in the planning scheme would need to be considered.

26 In the majority of cases where the Tribunal (and its predecessors) have considered what is encompassed by a realignment of allotment boundaries, the Tribunal has been considering a permit application to realign subdivision boundaries not the exemption provision of clause 62.04 or its equivalent, and this is an important distinction to bear in mind.

27 In McMahon v Shire of Cranbourne[11], the applicant appealed against a council refusal to permit a proposal which effectively sought to overcome an historic situation which had created a subdivision incorporating a number of land lot titles. Deputy President Dimtscheff addressed the issues as follows:

The primary question in this matter, and one which must be resolved before any other issues are dealt with by this Tribunal is, whether the Appellant/Applicant's proposal is properly described as a realignment within the meaning of the Scheme.

It has been conceded that it is common ground, that no additional lots are proposed, but rather than there is a reduction in the number of lots. That leave a consideration of the meaning of the operative words.[12]

28 The Tribunal noted that the context in which the phrase, to realign the boundary between lots, was used appeared elsewhere in the scheme (such as the equivalent as clause 62.04) where it "denotes minor rather than major changes in that it depicts, 'adjustments of a minor nature'." Deputy President Dimtscheff concluded that "a realignment as between lots is a mere adjustment to, that line being the line which separates the two spaces or lots." She found on the facts before her that the proposal was not a realignment, rather it was a relocation involving substantive changes in dimension, aspect, location and zoning.

29 Member Wilkinson in Peters v Shire of Cranbourne[13] disagreed with the determination in McMahon v Shire of Cranbourne and the Tribunal's finding that boundary realignments should bear some resemblance to the original title configuration in terms of shape, size and location. In Peters case, Member Wilkinson focussed on the outcome and whether the proposed realignment achieved a better result than the existing titles. He noted that the subject application was very different from that considered in McMahon's case.

30 However, like McMahon, Peters was concerned with an application for a permit to subdivide land into lots less than the minimum subdivision size in the zone under a provision that provided: A permit may be granted for a subdivision which realigns the boundary between lots if the number of lots is not increased (subject to a number of criteria). Since the decisions in McMahon and Peters, the wording of planning schemes has changed in the context of dealing with subdivisions into lots less than the minimum subdivision size. In rural zones under the Victoria Planning Provisions, a permit may be granted to create smaller lots than the minimum subdivision size in various circumstances including:

The subdivision is the re-subdivision of existing lots. The number of lots must not be increased and all lots must be at least 0.4 hectare.[14] (Tribunal emphasis)

31 There is therefore now a clear distinction between the wording of zone provisions, which allow a permit to be granted for a subdivision of lots smaller than the minimum subdivision size, and the exemption provision in clause 62.04, where no permit for subdivision is required. Thus a permit may be obtained for re-subdivision of existing lots whereas no permit is required for a subdivision which realigns the common boundary between two lots.

32 I consider that this change to the wording of the planning scheme provisions strengthens the approach taken by Member Martin in Tony Jeavon Surveyors v Colas Otway SC and Judge Fagan in Crockett v Shire of Eltham. Clause 62.04 is an exception and it is intended to apply to the realignment of common boundaries not to the re-subdivision of lots. In my view, the realignment of a common boundary means that the existing boundary is moved. It does not mean that the common boundary is significantly altered in dimension or direction. In each case it will be a question of fact as to whether a proposal can be characterised as realignment of the common boundary between two lots or whether it is a re-subdivision of lots. The outcome must be assessed in the context of the existing situation.

33 Of course the difficulty with this analysis is the lack of consistency between the wording of the provisions of clause 62.04 dealing with urban zones and non-urban zones. The provision dealing with non-urban zones provides as follows:

Any requirement in this scheme relating to the subdivision of land does not apply to:

•

A subdivision which realigns the common boundary between two lots if all the land is in one non-urban zone, the re-subdivision does not allow the number of dwellings the whole of the land could be used for under this scheme to increase, and any of the following apply:

34 I regard the use of the phrases "realigns the common boundary" and "re-subdivision" together in this provision as meaning that all realignments of boundaries are re-subdivisions, but not all re-subdivisions can be categorised as realignments. (This would be consistent with my interpretation that a re-alignment is only an adjustment of a minor nature.)

35 In the circumstances of the present case, I find as a matter of fact that the proposal to shift the eastern boundary of Lot 1 by 10 metres would not constitute a realignment of the common boundary between Lot 1 and Lot 2. Certainly, any proposal to shift the boundaries to achieve an outcome akin to that previously rejected by the Tribunal, where Lot 1 is almost doubled in size, would not come within the ambit of clause 62.04. Each outcome would in my view constitute a re-subdivision of lots that would require a permit.

36 Whilst 10 metres may not seem a substantial distance, it must be viewed in the context that this is a Residential 1 Zone and Lot 1 will be increased in area by 800m2, which represents a 20% increase in area. This is a substantial proportional increase. I consider this constitutes a resubdivision rather than a minor adjustment to a common boundary, which is essentially what the realignment provisions of clause 62.04 allow for. Of course, the percentage decrease in area of Lot 2 is much less because of its large size. Nevertheless, I consider that in deciding a question of fact I am entitled to take into account both the percentage increase and decrease in lot areas to decide whether this constitutes a realignment of boundaries to which the exemption in clause 62.04 should apply.

37 My decision does not prevent a shift in the boundary of Lot 1. It is open to Mr Maino to apply for a permit to achieve this resubdivision once the titles are registered. Alternatively, the outcome can be achieved by way of council's consent to the layout of the proposed subdivision under condition 2 of the permit without the need for a further subdivision.

38 It was assumed by both parties at the hearing that the following sub-dot point was relevant in this case:

s Any lot that is reduced in area meets the minimum lot area and minimum dimensions (if any) specified for the zone. This does not apply if the area of the smaller lot is limited by a provision of this scheme, or by a condition of a planning permit.

39 However, this assumes that the words "(if any)" relates both to the words "minimum dimensions" and the words "minimum lot area". In other words, it assumes that the provision reads as follows: Any lot that is reduced in area meets the minimum lot area (if any) and minimum dimensions (if any) specified for the zone. If this interpretation applies, then this provision would be applicable whether or not there is a minimum lot area specified for the zone. The problem with this interpretation is that it leaves no work for the other provisions to do. The two following sub-dot points both deal with circumstances where there is no minimum lot area specified for the zone. The first deals with situations where the area of the smaller lot is more than 230 square metres; the second deals with the situation where the area of the smaller lot is 230 square metres or less. They provide as follows:

s There is no minimum lot area specified for the zone, the area of the smaller lot is more than 230 square metres, and the area of either lot is reduced by less than 30 square metres.

s There is no minimum lot area specified for the zone, the area of the smaller lot is 230 square metres or less, and the area of either lot is reduced by less than 5 percent or by less than 30 square metres, which ever is lesser.

40 If both these provisions apply when there is no minimum lot area specified for the zone, it makes no sense for the first sub-dot point to also apply in such cases logically the first sub-dot point would apply to the situation in which there is a minimum lot area specified for the zone. Thus the words "(if any)" must be read as relating only to "minimum dimensions" specified for the zone. They do not apply to the words "minimum lot area". Thus on this view, the first sub-dot point would read as follows: Any lot that is reduced in area meets the minimum lot area specified for the zone and minimum dimensions (if any) specified for the zone.[15]

41 If this interpretation is correct, then this first sub-dot point does not apply to the circumstances of this case because there is no minimum lot area specified in the planning scheme for the subject land. This means that the relevant sub-dot point to be considered is the second, namely:

s There is no minimum lot area specified for the zone, the area of the smaller lot is more than 230 square metres, and the area of either lot is reduced by less than 30 square metres.

42 In the present case, there is no minimum lot area specified for the zone and the area of the smaller lot (Lot 1) is more than 230 square metres. However, the area of Lot 2 is being reduced by 800 square metres, not by less than 30 square metres, which is the only circumstance in which the exemption provided for by clause 62.04 can apply.

43 In both the sub-dot points applying to circumstances where there is no minimum lot area specified for the zone, the criteria that determine whether an exemption under clause 62.04 applies in respect of the need for a planning permit are limited to very minor adjustments - reductions in area of less than 30 square metres[16]. This evidences a very clear intent that a subdivision which realigns the common boundary between two lots and which is exempt from the need for a permit under clause 62.04 means a subdivision that results only in an adjustment of a very minor nature. In all other circumstances, a permit must be applied for under the normal zone and/or overlay provisions. This further reinforces my conclusion that the proposal in the present case to shift the eastern boundary of Lot 1 by 10 metres would not constitute a realignment of the common boundary within the meaning of clause 62.04.

44 My conclusions can be summarised as follows.

45 The first sub-dot point of the realignment of boundary provisions in urban zones under clause 62.04 is not applicable because there is no minimum lot area specified for the zone. I find that the correct interpretation of this provision means that it applies only in circumstances where there is a minimum lot area specified for the zone and must be read as follows:

•

A subdivision which realigns the common boundary between two lots if all the land is in one urban zone and any of the following apply:

s Any lot that is reduced in area meets the minimum lot area specified for the zone and minimum dimensions (if any) specified for the zone. This does not apply if the area of the smaller lot is limited by a provision of this scheme, or by a condition of a planning permit.

46 The relevant provision to consider in the present case is the following:

s There is no minimum lot area specified for the zone, the area of the smaller lot is more than 230 square metres, and the area of either lot is reduced by less than 30 square metres.

However, I find this does not apply because the area of the lot to be reduced (Lot 2) will be reduced by more than 30 square metres.

47 I also find, irrespective of the failure to accord with the 30 square metre limit on reduction of area, that the proposed shift in boundary of Lot 1 would not constitute a realignment of the common boundary between Lot 1 and Lot 2 within the meaning of clause 62.04. A realignment denotes a minor adjustment to a common boundary. I do not consider this to be a minor adjustment.

48 In the circumstances therefore, as the proposed subdivision cannot be undertaken without a permit under clause 62.04, it is not appropriate to make the declarations that Mr Maino has applied for.

[1] Wood v Nillumbik SC [2005] VCAT 1172

[2] [2004] VCAT 2487

[3] See comments by Senior Member Byard in Curr v Wangaratta RC [2006] VCAT 1437 at [25]

[4] [2006] VCAT 873

[5] (1991/07845) noted at 8 AATR 195

[6] 9 AATR 67

[7] [2006] VCAT 873 at [23]

[8] 10 AATR 297

[9] Clause 11.2.2 of the Metropolitan Regional Section of the Eltham Planning Scheme

[10] 10 AATR 297 at 300-301

[11] (1991/07845) noted at 8 AATR 195

[12] 8 AATR 195 at 195-106

[13] 9 AATR 67

[14] See clauses 35.01-4 and 35.02-4. Variations to this wording are found in clauses 35.03-3, 35.04-3, 35.05-3, 35.06-3, 35.07-3 and 35.08-3, but the same operative words are used: The subdivision is the re-subdivision of existing lots. In zones other than rural zones, in general there is no provision specifying a minimum subdivision size. The mechanism to be used where a minium subdivision size is to be specified is the application of a Design and Development Overlay.

[15] If this interpretation is correct, it raises a question about the meaning of: "This does not apply if the area of the smaller lot is limited by provision of this scheme". The limitation referred to must mean something other than a minimum lot area or minimum dimension otherwise the provision would not apply in the first place. It is possible that it could refer to a density provision. It is not necessary to decide this question now.

[16] Less than 5% if the reduction is smaller in area in the case of a lot of less than 230 square metres or less