1 I declare that a permit may be granted pursuant to the Yarra Ranges Planning Scheme to allow the subdivision of land at 107 Little Yarra Road, Yarra Junction, being the land in Certificate of Title Volume 9999 Folio 440, into two allotments, with one allotment being the land zoned Residential 1 and the other allotment being the land zoned Rural.

REASONS (given orally at the hearing and subsequently revised)

1 The fundamental principle which must guide the interpretation of any statutory instrument, including the planning scheme, is that the purpose of the legislative provision must be ascertained and be given effect to: see Mills v Meeking [1990] HCA 6; (1990) 169 CLR 214 at 235.

2 The subject land, although one lot, is contained in two zones. A portion of approximately 6,500 square metres is zoned Residential 1; and a portion, having an area of approximately 10.1 hectares, is zoned Rural.

3 The proposal before the council is to subdivide the land into two lots, with one of the lots being 4,000 metres and completely within the Residential 1 Zone. It would be more sensible if the application was amended so that all of the land in the Residential Zone formed one lot, with the balance being the land in the Rural Zone. Assuming such an amendment is made, the question is: can the subdivision be permitted pursuant to the scheme?

4 Clause 35.01-4 of the scheme, which relates to the Rural Zone, provides that each lot in a subdivision must be at least 18 hectares. Of course the balance lot, that is the lot which will be within the Rural Zone, will not be 18 hectares. The total area of the land is less than 11 hectares.

5 The interpretation of clause 35.01-4 must be considered in the context of the whole scheme, including the maps which form part of the scheme. The maps show that the existing lot is intended to be used partly for residential development, with the major portion being retained for rural use. It is incomprehensible that the authors of the scheme would have imagined that this would be done without the subdivision of the land. Hence the provision in clause 35.01-4 must give way to the clear purpose of the scheme as evidenced in the planning scheme map. Perhaps another way of considering the matter would be to regard the 18 hectare minimum in the Rural Zone as applying to a subdivision which actually divided land within the Rural Zone, as opposed to a subdivision dividing land along the boundary of the Residential Zone and the Rural Zone.

6 I am comforted in my conclusions in this matter by the co-operative and supportive submissions made by the parties. I am also comforted by the fact that the conclusion I have reached will facilitate what is clearly the commonsense and intended outcome of the planning scheme.