Mildura Rural City Council v Palamara & Ors [2010] VCAT 542

1. In Proceeding P2112/2009, I decline to make any declaration under s149A of the Planning and Environment Act 1987, as the relevant planning provisions have been amended to clarify their intent.
2. In Proceeding P2329/2009, pursuant to s149A of the Planning and Environment Act 1987, I declare that the proposed 2-lot subdivision in Application P09/264 to the responsible authority is contrary to the requirements of the "Mildura Older Irrigation Area Incorporated Document, February 2010" and thus prohibited under the Mildura Planning Scheme, in that it proposes to create a lot for an existing dwelling where access is via a common property driveway. It is appropriate for the responsible authority to have rejected the permit application on this threshold basis.
3. In Proceeding P2331/2009:
   • (a) I decline to make any declaration under s149A of the Planning and Environment Act 1987, as the relevant planning provisions have been amended to clarify their intent.
   • (b) I note for the record that the responsible authority cannot reject a planning permit application (and thus not process and consider the application) on the basis that the proposal may or will contravene a section 173 agreement. The section 173 agreement may provide a basis for refusal of the application on its planning merits, but does not operate at a threshold level to prohibit the application from being made.
4. In Proceeding P2332/2009, I decline to make any declaration under s149A of the Planning and Environment Act 1987, as the relevant planning provisions have been amended to clarify their intent.

Mr Roy Costa, Town Planner, of Roy Costa & Associates

1. Through these four separate proceedings under s 149A of the Planning and Environment Act 1987, the responsible authority seeks declarations concerning the interpretation and application of an incorporated document under clause 52.03 of the Mildura Planning Scheme. It was convenient to the parties and their representatives that the proceedings be heard together.
2. The incorporated document relevant to my decision is entitled "Mildura Older Irrigation Area Incorporated Document, February 2010". In general terms, this incorporated document regulates subdivision and dwellings in land zoned Farming Zone within the gazetted irrigation districts of Mildura, Merbein and Red Cliffs. The document provides an additional layer of regulatory control intended to protect land for horticulture within this area and to prevent inappropriate development that may compromise this objective. The document also provides that, if there is any inconsistency between the specific controls in the incorporated document and the general provisions of the Mildura Planning Scheme, the specific controls in the incorporated document prevail.
3. An earlier version of the incorporated document (the "Mildura Older Irrigation Area Incorporated Document, May 2009") was introduced into the Mildura Planning Scheme by Amendment C58 on 29 May 2009. This version was in place when the responsible authority lodged the four s 149A applications with the Tribunal. A second version of the incorporated document (the "Mildura Older Irrigation Area Incorporated Document, September 2009") was introduced by Amendment C59 on 24 September 2009. This version was in place at the time of the hearing. A third version (the "Mildura Older Irrigation Area Incorporated Document, February 2010") was introduced into the Mildura Planning Scheme by Amendment C65 on 9 March 2010, after the hearing. This is the version now in force. It is fair to reflect that the February 2010 version is more detailed than the earlier versions, and implements the recommendations of the Mildura Planning Taskforce, Final Report, December 2009.
4. I am of course bound to apply the planning scheme as in force at the date of my decision and, as I have indicated, this decision is now based on the February 2010 version of the incorporated document. The parties had foreshadowed the possibility of this further version. Having carefully reviewed the material, and given the type of proceedings before me and the nature of the recent changes to the incorporated document, I have decided it is unnecessary to reconvene the hearing or to seek out further submissions on the latest version before making my decision.

1. In this matter, the applicant proposes to create a 2-lot subdivision, by excising a dwelling lot (containing an existing dwelling) from a larger horticultural lot. At the hearing, there were two relevant issues:
   • The applicant contends that the horticultural lot will be 6.908 hectares. However, this relies on a future consolidation of the existing lot with a neighbouring lot, which has not yet occurred. The actual lot from which the dwelling lot is proposed to be excised is only 3.017 hectares.
   • The existing dwelling is less than 5 metres from two existing boundaries, but some 66 metres from the new boundary that would separate the dwelling lot from the horticultural lot.
2. Under the incorporated document, as it stood in May 2009 and September 2009, the existing lot was required to have "an area of 4 hectares or greater", and the existing dwelling must be set back "at least 5 metres from a boundary". I would likely have agreed with the responsible authority that the proposal did not meet these constraints. The applicant could not rely on an artificial lot size, created by a possible future consolidation, to get around the minimum lot size for subdivision. The consolidation to create a lot larger than 4 hectares would need to have taken place as a necessary precondition to the operation of this provision. The existing lot, at 3.017 hectares, did not meet the 4 hectare minimum. Moreover, on a strict application of the incorporated document, the 5 metre setback from "a" boundary at least arguably referred to a setback from "any" boundary - not just the new boundary created by the proposed subdivision. The impact of applying the 5 metre setback control to existing boundaries was potentially anomalous in some circumstances, but not so clearly unintended as to warrant a different interpretation to the express wording of the provision.
3. The current version of the incorporated document has however clarified and varied these constraints. It has removed the minimum 4 hectare requirement for the existing lot. The 3.017 hectare lot here is now sufficient. Moreover, the incorporated document now provides that the dwelling must be set back a minimum of 5 metres "from any new boundary". The fact the existing dwelling may be less than 5 metres from an existing boundary is no longer an issue.
4. It follows that the applicant's proposal is no longer prohibited by reason of these two constraints, and it is therefore unnecessary to make the specific declaration sought by the responsible authority to that effect.
5. The February 2010 version of the incorporated document has however introduced other constraints. One is that "the lot created for an existing dwelling must have a minimum area of 0.4 hectares and a maximum area of 1.0 hectare". On the applicant's material, the proposed dwelling lot is only 1,312 m², and does not meet this constraint. The application will need to be checked carefully against the new version of the incorporated document. It is possible that the proposed 2-lot subdivision may still be prohibited, and thus may still be rejected by the responsible authority.

1. In this matter, the applicant also proposes to create a 2-lot subdivision, by excising a dwelling lot (containing an existing dwelling) from a larger horticultural lot. At the hearing, there were two relevant issues:
   • The dwelling lot has existing sheds sited less than 5 metres from an existing boundary.
   • The access to the existing dwelling will be via a common property driveway.
2. As in the preceding matter, the 5-metre setback requirement has been clarified and varied by the February 2010 version of the incorporated document, such that it is no longer a prohibiting factor for this application. The sheds are not less than 5 metres from a new boundary. Moreover, the new constraint is that "the dwelling (not including outbuildings) must be setback a minimum of 5 metres ...". The setback therefore now applies only to the dwelling, rather than outbuildings that might be associated with the dwelling such as the sheds in this matter. This appears to be because the setback requirement is intended to minimise amenity and environmental impacts between the residential use (i.e. specifically arising from the dwelling) and the adjoining horticultural use.
3. The common property driveway access is more problematic. The February 2010 version of the incorporated document still contains a provision, similar to the earlier versions, that "the lot created for an existing dwelling must not be a battle axe shaped lot or a lot where access is via a carriageway easement or common property driveway".
4. The applicant contended that this provision applied only to a new common property driveway created by the 2-lot subdivision, rather than to a pre-existing common property driveway as here. The applicant relied, in part, on an additional sentence in the earlier versions of the incorporated document (now in a stand-alone clause) that had sought to protect the balance of the land for horticulture, and the inference therefore that only the future post-subdivision circumstances were relevant. It was argued that the subdivision would not change the existing position. It was also contended that, if the subdivision was not allowed, the balance land here may not continue for horticultural use (through possible consolidation with adjoining horticultural land) and its water entitlements may be sold. In the applicant's view, the objectives of the incorporated document would not therefore be met.
5. I do not agree with the applicant's interpretation. The provision is not in my view ambiguous. It clearly states that the new dwelling lot must not be a lot where access is via a common property driveway. Access is already, and is proposed with the 2-lot subdivision, to be via a common property driveway. There is nothing in the wording of the provision, nor in any surrounding background material brought to my attention, that evinces an intention that this provision applies only to a new common property driveway created by the subdivision. The application is prohibited by reason of not meeting the constraint, and the responsible authority was in my view entitled to reject it on this basis.
6. Moreover, I do not agree with the applicant that the responsible authority's interpretation (with which I agree) runs counter to the objectives of the incorporated document. If the provision is intended to minimise the potential impacts of dwellings and residential use on horticultural uses, that objective will not be facilitated by this subdivision. A stand-alone dwelling, which may not in the future be occupied by a person involved in the horticultural industry, will share a common property driveway with land used for horticulture. The potential for future conflict is very real[1].
7. I have not considered whether there are any additional constraints, introduced by the February 2010 version of the incorporated document, that may also have affected this permit application.

1. In this matter, the applicant again proposes to create a 2-lot subdivision. At the hearing, there were two relevant issues:
   • The responsible authority contended that there was an existing shed within 5 metres of an existing boundary.
   • Further subdivision of the land is currently prohibited by a section 173 agreement. (The applicant sought to remove this agreement, and replace it with another agreement preventing further subdivision other than the subdivision now proposed).
2. In relation to the first issue, there was some debate as to whether the existing shed was indeed less than 5 metres from a boundary. The distance had been calculated from aerial surveys or other broadly scaled plans, rather than measured accurately on the ground, and the applicant contested the finding. Had this been the determinative issue, a survey would have been required to resolve the actual setback distance as a matter of fact. The setback distance is however no longer determinative to whether the application is prohibited. In similar fashion to the preceding matter, the February 2010 version of the incorporated document has clarified and varied the regulatory control that now applies. Here, the sheds are not less than 5 metres from a new boundary, and the setback now only applies to a dwelling rather than outbuildings such as these sheds. It follows that, having regard to the February 2010 version of the incorporated document, the permit application is not prohibited on this basis.
3. The second issue is somewhat different to the other three proceedings. The restriction imposed on further subdivision arises under a section 173 agreement, rather than directly under the incorporated document.
4. The subdivision controls in the rural zones in planning schemes commonly provide a once-only opportunity for 2-lot subdivisions, with a 2-lot subdivision conditional upon the landowner entering into a section 173 agreement that prevents further subdivision. The public policy intent is clear - i.e. to prevent repeated 2-lot subdivisions of the same land over time to circumvent the control. This form of control existed under the Rural Zone, exists under the current Farming Zone in clause 35.07-3 of the Mildura Planning Scheme, and has existed in all versions of the incorporated document - including the February 2010 version now in force.
5. The regulatory control arising from the zone provision and incorporated document is simply the requirement for a section 173 agreement. The zone provision and incorporated document do not themselves prohibit further subdivision, but require a section 173 agreement to be registered on the title of the land to achieve that outcome. The section 173 agreement is thus a separate regulatory tool that imposes a separate and additional layer of planning control over the land.
6. There is nothing in the Planning and Environment Act 1987 or the Mildura Planning Scheme that authorises a responsible authority to automatically reject a permit application that would contravene a registered section 173 agreement prohibiting further subdivision, notwithstanding that the section 173 agreement was required by the planning scheme. The responsible authority must therefore consider the permit application on its planning merits.
7. The section 173 agreement may well provide a sound basis for the responsible authority to refuse the permit application on its planning merits. That is a quite different thing to the application being prohibited. The terms of the section 173 agreement provide a potentially legitimate ground for refusal, rather than operating at a threshold level to prohibit the application even from being made in the first place.
8. I think the responsible authority has erred here if it has refused to even process and consider the permit application for subdivision on the basis that it contravenes the section 173 agreement, albeit that the section 173 agreement was required by the planning scheme to prohibit further subdivision. Having said that, it would be a rare and exceptional circumstance that might lead the responsible authority to now exercise its planning discretion to allow a further 2-lot subdivision, on its planning merits, having regard to the earlier subdivision, the planning scheme requirement for a section 173 agreement, and the terms of the section 173 agreement itself. And even if that rare and exceptional circumstance exists, the applicant would still need to have the existing section 173 agreement removed from its title, a potentially difficult task requiring a separate process and by no means assured of success. As I have said, though, these are matters for a proper consideration by the responsible authority that may lead to a refusal of the permit application for subdivision, rather than providing a threshold basis for its rejection.
9. I am not aware whether any rare or exceptional circumstances exist here in support of the applicant's application. Equally, I have not considered whether there are any additional constraints, introduced by the February 2010 version of the incorporated document, that may also affect this subdivision application. These are matters for the applicant and responsible authority to now consider.

1. In this matter, the applicant also proposes to create a 2-lot subdivision, by excising a dwelling lot (containing an existing dwelling) from a larger horticultural lot. At the hearing, there were two relevant issues:
   • The applicant contends that the existing lot is 4.337 hectares. However, this relies on a future consolidation of two lots (Lots 2 and 5 on TP 868755N), which has not yet occurred. The actual lot on which the existing dwelling sits is only 2.729 hectares.
   • The responsible authority contends that the application is really a re-subdivision of 2 lots, or a boundary realignment, not otherwise authorised.
2. The first issue is somewhat similar to that raised in the first proceeding, discussed earlier in these reasons. The February 2010 version of the incorporated document has removed the minimum 4 hectare requirement for the existing lot. It would not now matter if the existing lot (from which the dwelling was to be excised) was only 2.729 hectares.
3. However, the proposed 2-lot subdivision appears here to comprise a re-subdivision of two existing lots rather than being an excision from a single lot. Lots 2 and 5 on TP 868755N are essentially proposed to be re-subdivided (or the boundary between them realigned) to create a dwelling lot of 9,720 m², and a horticultural lot of 3.365 hectares. Under the earlier versions of the incorporated document, there were no provisions dealing with re-subdivision. A subdivision was prohibited if it created a smaller lot, other than in limited circumstances, and all re-subdivisions must necessarily lead to one lot being smaller and were thus effectively prohibited.
4. The February 2010 version of the incorporated document has however introduced express provision for re-subdivision of existing lots (which may include an existing dwelling), provided certain requirements are met. It appears (at least on the information provided to me) that the applicant's proposal is likely to meet all of these requirements. It follows that the applicant's proposal is no longer prohibited by reason of this constraint, and it is therefore unnecessary to make the specific declaration sought by the responsible authority to that effect.
5. I have not considered whether there are any additional constraints, introduced by the February 2010 version of the incorporated document, that may also have affected this permit application. This will need to be checked carefully by the responsible authority.
6. The fact the proposal may no longer be prohibited does not of course mean that the application for re-subdivision of the 2 lots must be approved - the application must now be considered by the responsible authority on its planning merits having regard to all relevant planning matters.

[1] Following, for example, the views expressed by Member O'Leary in Roy Costa & Associates v Mildura City Council [2007] VCAT 2108 at paragraphs [24] - [26]