1. This application was made under section 81(a) of the Planning and Environment Act 1987 to extend the time for commencement of a subdivision permit in respect of the subject land. Planning permit No. P03/571 was issued by the responsible authority on 16 March 2004.[1]
2. The permit allowed a two lot subdivision of the subject land, with the smaller lot representing the excision of an existing dwelling. The excised lot would be in the order of 4,000 square metres and the balance lot would be just under 11 hectares. I was advised that the balance lot contains a vineyard.
3. Surrounding land is predominantly used for horticulture, although there are two rural residential dwellings on lots of approximately 4,000 square metres in the immediate area adjacent to the subject land.
4. To date, three extensions of time have been granted by the responsible authority to commence the permit, with an extension of one year having been granted each time. This brought the date for commencement of the permit to 16 March 2009. The current application was lodged with the Tribunal on 20 January 2009, within the time required by section 69 of the Planning and Environment Act 1987.

Planning controls and policy - change to planning controls and policy

1. The subject land is located in the Farming Zone of the Mildura Planning Scheme (planning scheme). A planning permit is required for the subdivision of land less than the area specified in the schedule.
2. At the time the original permit was granted, the subject land was located in the Rural Zone of the planning scheme. The land was then rezoned to Farming Zone and I note that the responsible authority has granted an extension to the permit after the rezoning. In its delegate's report in respect of that application, it was considered that there had been no relevant change in planning policy that would render that extension (or the grant of a fresh permit) inappropriate.
3. Clause 35.07-3 provides that a planning permit is required for the subdivision of land and that a permit may be granted for a lot less than the area specified in the schedule if the subdivision is to create a lot for an existing dwelling and certain requirements are met. A section 173 agreement would also be required to ensure that the land is not further subdivided.
4. Notably, the planning scheme has recently been changed by Ministerial Amendment C58, gazetted on 29 May 2009. This amendment was introduced between the date of the hearing and the date of my decision on this application. I provided an opportunity for the parties to provide further written submissions on the impact of this amendment on the application. The responsible authority and the applicant both provided written comments in response.
5. Essentially, for the present purposes, Amendment C58 increased the minimum lot size for which a permit could be sought for a dwelling from 10 hectares to 40 hectares. It also incorporated a relevant strategic planning document, which I address in more detail below. The minimum land size for conventional subdivision has also been increased to 40 hectares and the minimum lot size from which a dwelling may be excised is now 4 hectares.
6. By way of background, it is relevant to consider the Explanatory Report to Ministerial Amendment C58. It provides that:

The amendment will restrict the following use and development of land in the Mildura Older Irrigation Area as recommended in the Mildura Older Irrigation Area (MOIA) Rural Strategy Final Report, April 2008:

• No new dwellings within the Mildura Older Irrigation Area [MOIA].
• No subdivision of land including boundary realignments within the MOIA.
• Dwelling excisions on lots with a land area greater than 4 hectares subject to specific requirements.

1. The Explanatory Report notes the significance of the MOIA and comments that:

The MOIA is under considerable pressure from potential new dwellings and land fragmentation from small lot subdivisions. Between January 2008 and mid March 2009, approximately 78 permits for new dwellings were issued in the MOIA. In 2005 and 2006, 47 and 48 permits respectively were issued for dwellings in the Farming Zone within the MOIA. The MOIA Strategy found that if council continued to issue permits for every new dwelling in the Farming Zone within the MOIA, then there was potential for more than 2,000 additional dwellings across the MOIA.

• Protect land within the MOIA for horticulture;
• Facilitate growth and expansion of the horticultural businesses within the MOIA;
• Ensure land values reflect the horticultural value of the land;
• Restrict new dwellings within the MOIA; and
• Minimise conflict between non-horticultural uses and horticultural businesses.

1. Under how the amendment provides for the fair, economic and sustainable use and development of the land, the Explanatory Report provides:

The amendment will protect land for agriculture, and in particular for horticulture, by limiting ad hoc dwelling and subdivision opportunities and facilitating growth and expansion of horticultural activities.

1. Under "social and economic effects", the Explanatory Report provides:

Dwelling excisions will facilitate farm restructuring, by providing an exit option from horticulture and encouraging growth and expansion of other existing horticultural businesses.

1. Clause 52.03 of the planning scheme provides that "land identified in the schedule to this clause may be used or developed in accordance with the specific controls contained in the incorporated document corresponding to that land". Amendment C58 also added the Mildura Older Irrigation Area Incorporated Document May 2009 to the Schedule to clause 52.03, applying to all land zoned Farming Zone, which is within a gazetted irrigation district in the Mildura Older Irrigation Area including the irrigation districts of Mildura, Merbein and Red Cliffs. The contents of this document are best explored through their application in Mr Costa's further written comments outlined below.

1. At the hearing, the applicant submitted that there had been no major change in policy since the grant of the permit and it considered that the responsible authority would most likely grant a permit for the subdivision if a fresh application was made today. It also relied on financial hardship as the reason why the permit had not been acted upon since its issue in March 2004, principally due to the increasing expense in recent years of purchasing water for the vineyard on the subject land. Mr Costa submitted that the permit holders intended to commence the subdivision within the next 6 months.
2. At the hearing, the responsible authority opposed the grant of a further extension of the permit since it considered that the applicant was 'warehousing' the existing permit. However, it suggested that it may be prepared to grant a planning permit if it were to receive a fresh application for the same subdivision proposal.
3. At that stage, the responsible authority was influenced by the fact that the excision lot already contained a dwelling and the balance lot would exceed 10 hectares which would have at that stage been able to be used as a dwelling as-of-right subject to certain requirements.[2] In formulating its view, however, Ms Collins advised that the responsible authority would also want to consider responses to notification and referrals (bearing in mind that these may have changed since the grant of the original permit).
4. Mr Costa acting on behalf of the applicant provided in a written response dated 26 June 2006. He explained that the Mildura Older Irrigation Area Incorporated Document May 2009 (now incorporated) provides for the excision of an existing dwelling from a minimum 4 hectare lot provided that certain requirements are met. He applied these requirements to the proposal as follows:
   • Required services are provided in accordance with clause 35.07-2;
   • The subdivision creates two lots and a section 173 agreement is entered into providing that the land must not be further subdivided;
   • The existing lot has an area of 4 or more hectares;
   • The lot created for an existing dwelling will be less than 1 hectare in area and will not be battle-axe or provide for a carriageway easement or driveway in common property;
   • Boundaries are positioned to protect the balance of the land and the existing dwelling will be set back more than 5 metres from a boundary.
5. The responsible authority provided a letter to the Tribunal dated 6 July 2009 with a corrected response in a letter dated 17 July 2009. Its position is now that the current planning scheme controls allow for the grant of a permit to excise a dwelling in certain circumstances on land with a minimum lot size of 4 hectares. Therefore, it was of the view that a fresh permit application may be considered for the subject land if the proposal meets the policy expressed in the Mildura Older Irrigation Area Incorporated Document May 2009 and the remaining provisions of the planning scheme.

1. Case law relevant to the assessment of an application to extend time for the commencement or completion of an approved use or development derives from the leading decision of Kantor and Anor v Murrindindi Shire Council[3]. It identifies the following relevant factors:

(a) whether there has been a change of planning policy;

(b) whether the land owner is seeking to "warehouse" the permit;

(c) intervening circumstances bearing on grant or refusal of the extension;

(e) whether the time limit originally imposed was adequate;

(f) the economic burden imposed on the land owner by the permit; and

(g) the probability of a permit issuing should a fresh application be made.

1. Balancing these matters, there are a number of factors that I consider weigh against the grant of an extension of time in the circumstances before me.
2. The competing financial commitments of the applicant were raised as a reason for the delay in acting on the permit by applying for certification of the plan of subdivision. I do not doubt the genuineness of this excuse that was used to provide background as to why the permit was not acted upon within time. However, I do not consider this reason, of itself, sufficient to negate an assumption that the permit has been "warehoused". Distinguishing the facts before me from the case of Makpams Pty Ltd v Mildura RSC[4], this factor was enough to get the applicant 'over the line' in explaining the delay that gave rise to a first extension.
3. I note that this is the fourth request for an extension of this subdivision permit, although each extension only provided for a single additional year. That is, the permit holder has had the benefit of the permit since March 2004 but has not achieved certification within that time. I consider that the time originally provided and also provided via the various extensions was clearly adequate to secure certification of the two lot subdivision plan. I am also influenced by the relatively confined costs leading to certification of a two lot plan of subdivision and the fact that this act would have conferred an additional 5 years within which to register the plan of subdivision[5].
4. Small lot excisions of dwellings in Mildura, specifically within the MOIA have come before the Tribunal for consideration in a number of applications, most recently in Primarano v Mildura RSC[6] and Jackson v Mildura RSC[7]. Importantly, however, these and all other decisions on the same subject matter pre-dated the recent amendment to the planning scheme.
5. When the Explanatory Report is considered in combination with the changes made to the planning scheme by Amendment C58, it is clear that the Amendment contemplates that planning controls and decision making in respect of rural-residential subdivisions should be re-considered, to give increased protection to the integrity of the Older Irrigation Area of Mildura. This clearly constitutes a change to the planning scheme controls applying to the Farming Zone and also the incorporation of the relevant strategy document via Amendment C58.
6. The notable difference in applying the new planning scheme provisions to the subject land is that originally (at the time of the hearing), the balance lot could have been used for a dwelling as-of-right, being in excess of 10 hectares and meeting the requirements of the schedule as it then was. Now, the amendment to the Farming Zone Schedule would require that a permit be obtained for the use of the balance lot as a dwelling, it being less than 40 hectares.
7. Originally, the balance lot could also have applied for a permit for subdivision at a later date, if the proposed section 173 agreement was ever amended to allow for this. The recent amendment to the schedule to the Farming Zone would now firmly prevent this, providing for a minimum lot size of 40 hectares for subdivision.
8. While an extension of time may be refused on the basis that current day scheme provisions and policy would militate against the grant of a permit, it is not clear whether this is the case before me. Even in terms of the immediate past provisions of the planning scheme, the responsible authority was non-committal at the hearing as to whether a new permit would have been granted if an application were to be made. I am also not aware of the progress of other strategic work prepared by the council as evidenced by Amendment C30, especially how this may be affected by Amendment C58.
9. Nevertheless, the change to the planning scheme effected by Amendment C58 and the state of flux in relation to relevant planning policy signals to me that at least the merits of the proposed two lot subdivision requires consideration under today's planning scheme and strategic policies. These are factors not considered when the permit was granted in 2004. In the absence of this assessment, it would be most undesirable to breathe new life into this aged permit.
10. I also note that in the context of hearing this request to extend the permit, I was not fully appraised of all relevant planning policy and merits issues relevant to the strategic acceptability of the proposal. I consider that the responsible authority is best placed to consider the emerging policy matrix at first instance, in the context of a fresh application for the subdivision.

1. In my view, there are a combination of factors that justify a refusal to extend this planning permit for a two lot subdivision. The most influential of these is the recent change to the planning scheme and planning policy which necessitate a fulsome consideration of the proposal afresh. Other contributing factors are that the time allowed by the permit was reasonable, the reason for the delay is not persuasive having regard to the number of extensions already granted and the steps involved in securing certification, together with the lack of desirability of allowing the permit to be 'warehoused' in these circumstances.
2. If the subdivision proposal is still desired by the applicant, a fresh application will need to be made and considered on its merits.

[1] I note that the planning permit includes a condition requiring a section 173 agreement that the land not be further subdivided.

[2] The responsible authority was at that stage relying on proposed clause 22.06 of the planning scheme as adopted by the responsible authority, referring to amendment C30 which has been with the Minister for Planning for some time, and was not preceded by an independent panel hearing. The fact that the future of C30 is still uncertain was cited by the responsible authority as a reason why one year extensions were granted, in contemplation of a possible policy shift.

[3] (1997) 18 AATR 285.

[4] [2008] VCAT 2609.

[5] Pursuant to the provisions of the Subdivision Act 1998.

[6] [2009] VCAT 959, a decision of Senior Member Komesaroff. In that decision, the Tribunal granted an extension of time for a two lot subdivision.

[7] [2009] VCAT 926, a second decision of Senior Member Komesaroff, handed down on the same day. In that decision, the Tribunal refused to grant an extension of time for a two lot subdivision.