1. The subject land comprises two lots[1] having a total area of approximately 148 hectares. There are two existing dwellings on one lot and none on the other lot. It would be possible to obtain a permit for a dwelling on this lot.
2. Proposed Plan of Subdivision PS643894R proposes to create two lots - Lot 1 will contain the two existing dwellings and have an area of 50 hectares whilst Lot 2 will have an area of 98.17 hectares. If this subdivision can proceed, the applicant intends to then apply for a permit to subdivide Lot 1 into two lots with a dwelling on each of the lots. The lots will have areas of 18 hectares and 32 hectares respectively.
3. However, before this second subdivision can occur, the applicant must be able to effectively resubdivide the two existing lots. The applicant does not believe she is able to obtain a permit for such a subdivision based on the current subdivision provisions in the GWZ4. Clause 32.04-3 of the Green Wedge Zone provides that a permit is required to subdivide land. Each lot must be at least the area specified for the land in a schedule to this zone. If no area is specified, each lot must be at least 40 hectares. Schedule 4 to the Green Wedge Zone provides with respect to the minimum subdivision area as follows:

Except as provided for in the scheduled Clause 53, a minimum lot size of 18 hectares with an average lot yield not exceeding one lot to each 25 hectares of site area and a maximum lot size of 44 hectares.

1. The applicant has interpreted this as meaning that because each of the two lots of proposed subdivision 643894R exceed 44 hectares, the subdivision is prohibited. To get around this prohibition, the applicant seeks to rely on clause 62.04 of the planning scheme, which 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:
  • 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 islimited by a provision of this scheme, or by a condition of a planning permit.
  • There is no minimum lot area specified for the zone, and no part of the boundary is moved more than 1 metre. This does not apply if the area of the smaller lot would be less than the area specified by a condition of a planning permit.
  • There is no minimum lot area specified for the zone, the new boundary coincides with the location of a fence that is more than 5 years old, and no part of the boundary is moved more than 3 metres.

1. In particular, the applicant relies upon the first dot point. She says that:
   • All the land is in one non urban zone (Green Wedge Zone).
   • The re-subdivision does not allow the number of dwellings the whole of the land could be used for to increase. (There are two existing dwellings on Lot 10 and no dwelling on Lot 11). There is the potential for one additional dwelling on Lot 11 which would mean that the whole of the land could be used for three dwellings. The re-subdivision would not change this.
   • The smaller lot (proposed Lot 1) meets the minimum lot area specified for the zone. In GWZ4 the minimum lot size is 18 hectares. Proposed Lot 1 is larger than this being 50 hectares.
2. On this basis, the applicant says that no permit is required for the proposed subdivision.
3. The council takes a contrary view. It says that the proposed subdivision does not take the benefit of clause 62.04 and requires a planning permit in the ordinary manner pursuant to the Green Wedge Zone - Schedule 4 (GWZ4) and other applicable permit triggers, being:
   • Environment Significance Overlay - Schedule 1 (Site Z2 Yarra River Corridor) (ESO1-Z2) - Clause 42.01-2;
   • Land Subject to Inundation Overlay (SLIO) - Clause 44.04-2; and
   • Public Acquisition Overlay - Schedule 3 ( PAO3) - Clause 45.01-1
4. In addition to these planning controls requiring a permit for subdivision, the council says that clause 53 - Upper Yarra Valley and Dandenong Ranges Region Provisions - is also relevant. Clause 53 is unique to the Yarra Ranges Planning Scheme and seeks to ensure that the provisions of the scheme are consistent with the Upper Yarra Valley and Dandenong Ranges Regional Strategy Plan. Pursuant to clause 53.01-3, the subdivision of land must meet the requirements of the schedule to this clause. Clause 7 of the schedule relates to 'subdivision requirements for land in a Farming Zone, Green Wedge Zone, Green Wedge A Zone, Rural Conservation Zone, or Rural Living Zone'. Relevantly, it provides that:

A permit must not be granted to subdivide land in a Green Wedge Zone, Rural Conservation Zone, Green Wedge A Zone, Farming Zone, or a Rural Living Zone, unless each lot created comprises land which has at least 40 percent of its area that is not:

• Subject to slopes of 20 percent or greater.
• Land liable to flooding or included in a Land Subject to Inundation Overlay.
• Included in an Erosion Management Overlay.

The responsible authority may vary any of these requirements if it is satisfied that the land can be reasonably and safely developed for appropriate uses.

1. The subject land is covered by a Land Subject to Inundation Overlay and hence would be subject to these provisions.

1. Council says that clause 62.04 does not operate to exempt the subdivision from requiring a planning permit for the following reasons:
   • The plan of subdivision does not 'realign the common boundary between the two lots' as contemplated by clause 62.04.
   • Proposed Lot 1 does not meet the 'minimum subdivision area' specified for the GWZ4.
   • The area of proposed Lot 1 is 'limited by provision of the scheme', being the schedule to the GWZ4.

Does the plan of subdivision realign a common boundary between two lots?

1. When interpreting clause 62.04 it is important to recognise that it is an exception to other planning controls in the planning scheme. As such, I do not consider it should be interpreted or applied in such a way as to undermine the intention of those other planning controls.
2. The object of statutory interpretation is to determine what Parliament intended. The primary source of the intention is the words used, construed in their normal and natural meaning, in context and after considering the statute as a whole.[2] The Interpretation of Legislation Act 1984 requires a court or Tribunal to promote the purpose or object underlying the Act or subordinate instrument (in this case the planning scheme), whether or not that purpose or object is expressly stated, in preference to a construction that would not promote that purpose or object.[3]
3. In Project Blue Sky Inc v ABA[4] four members of the High Court said:

However, the duty of a Court is to give the words of the statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of a statute or the canons of construction may require the words of the legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.

1. In Love v Stuart J Castle & Anor[5] , Justice Osborn set out some basic principles of statutory construction. He referred to CIC Insurance Ltd v Bankstown Football Club Ltd[6], where Brennan CJ, Dawson, Toohey and Gummow JJ said:

Moreover, the modern approach to statutory interpretation

(a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and

(b) uses "context" in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy. Examples of general words in a statute being so constrained by their context are numerous ... [1]f the apparently plan words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance. Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent.

1. The applicant has relied upon the literal words used in clause 62.04. She says that because the proposed subdivision meets all of the criteria, she is entitled to rely upon the exemption. I disagree for two reasons. First I do not consider that the subdivision can be construed as falling within the meaning of the words used in clause 62.04. Second, to interpret the clause in the way suggested would be contrary to the purpose and intent of the provision.
2. I consider that the applicant's interpretation misconstrues the meaning of the words 'realigns the common boundary between two lots'. In my view, the resubdivision proposed cannot be characterised as realignment of a common boundary. The subdivision proposed in the present case is much more than, and different from, a subdivision which realigns the common boundary between two lots.
3. In my view, there is no common boundary that is being realigned. From the plans it appears that approximately 2/3 of the common boundary between Lots 10 and 11 will remain in situ. The remaining section of the common boundary will be eliminated. A boundary at right angles to the common boundary will be created across Lot 10, which will result in two completely different shaped and sized lots. I regard this as a resubdivision of the two lots, not the realignment of a common boundary.
4. In my view, the purpose or object of clause 62.04 is not to enable a person wishing to subdivide land to get around the substantive planning controls and policy framework evident in the rest of the planning scheme by relying upon the exemption from the need for a permit which it creates. Rather, it is to create an exception to the need for a permit when there is a minor boundary adjustment to be made and key provisions of the planning controls relating to minimum subdivision size and dwelling potential will not be compromised.
5. I consider the way in which the concept of realignment of allotment boundaries is used in clause 62.04 refers to an adjustment of a minor nature. I examined the meaning of the concept in Maino v Nillumbik SC[7] where I said:

[32] ... 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.

1. I then referred to the lack of consistency between the wording of the provisions of clause 62.04 dealing with urban zones and non-urban zones.
2. In Maino I was dealing with a resubdivision of two lots in an urban zone. However, I do not consider that there is any difference in the way in which the concept of the realignment of common boundaries is used in clause 62.04 when referring to urban zones and non-urban zones.
3. In Maino, I drew attention to the fact that many zones, including non-urban zones, have specific provisions dealing with subdivision that is the resubdivision of existing lots. I agree with the finding I made in Maino that the use of the phrases 'realigns the common boundary' and 'resubdivision' together in clause 62.04 means that all realignments of boundaries are resubdivisions, but not all resubdivisions can be categorised as realignments.[8]
4. I consider that the planning controls found elsewhere in the planning scheme would be defeated if clause 62.04 is given an expansive interpretation. 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.
5. The purposes of different aspects of the planning scheme are to be found throughout the scheme: for example, in clause 10 relating to the operation of the State Planning Policy Framework; in clause 20 relating to the operation of the Local Planning Policy Framework; at the commencement of all zones, overlays and particular provisions; and in the guidance given at the commencement of clause 65 which provides:

Because a permit can be granted does not imply that a permit should or will be granted. The responsible authority must decide whether the proposal will produce acceptable outcomes in terms of the decision guidelines of this clause.

1. In my view, the construction of clause 62.04 should promote the purposes set out in the planning scheme. To allow the proposed resubdivision of the subject land without a permit by relying on the exemption in clause 62.04 would not promote these purposes.
2. For these reasons, I therefore conclude that the proposed subdivision is not a subdivision that realigns the common boundary between two lots within the meaning of clause 62.04. It therefore requires a permit under the relevant provisions of the planning scheme before it may proceed.

1. The applicant has sought to rely on the exemption in clause 62.04 because she believes a permit application for the subdivision would be refused on the basis that the subdivision is prohibited in the GWZ4 because the lot sizes exceed the maximum lot size specified of 44 hectares. However, I am not sure that this assumption is necessarily correct.
2. A recent decision by Member Code on a question of law in BMF Pty Ltd v Greater Geelong CC[9] found that part of the schedule to the Rural Living Zone in the Greater Geelong Planning Scheme is invalid and has no effect. Member Code held that the schedule to the Rural Living Zone may not validly include a requirement that each lot in a subdivision must be capable of containing a rectangle of a specified minimum area or dimensions. In doing so, he noted that the decision has potential wider implications for the validity of schedules to a number of zones, overlays and other provisions in planning schemes.
3. Member Code's reasoning in BMF Pty Ltd v Greater Geelong CC is applicable to the provisions of the GWZ4. The schedule to the Green Wedge Zone has the same format as the schedule to the Rural Living Zone. With respect to this schedule and the provisions in it requiring that each lot must also be capable of containing a rectangle of 0.8 hectares with minimum dimensions of 70 metres in addition to a minimum lot size of 8 hectares, Member Code said:

[15] Column 1 has no heading but specifies a number of different items, the first of which is 'Minimum subdivision area (hectares)'.

[16] Column 2 is headed 'Land' and, for the first item, states 'All land'. Hence, the first item in the schedule applies to the subject land.

[17] Column 3 is headed 'Area/Dimensions/Distance' and, for the first item, states:

1 hectare with the average area of lots in a subdivision being at least 1.5 hectares. For the purpose of calculating average area, all lots exceeding 3.0 hectares must be considered as 3.0 hectares (and the balance of a staged subdivision should be excluded). Each lot must also be capable of containing a rectangle of 0.8 hectares with minimum dimensions of 70 metres

[18] A schedule to a zone, overlay or other provision in the Victoria Planning Provisions does not operate as an independent control. It provides optional additional provisions for the zone, overlay or other provision. The Tribunal has accordingly held, when considering a schedule to a development plan overlay, that:

A schedule to an overlay is subordinate to the overlay itself and may only provide for what is authorised by the overlay itself. The schedule cannot impose controls or require things that go beyond what are provided for in the overlay. It cannot exceed the power of the overlay. [Cameron Manor Pty Ltd v Mornington Peninsula SC [2007] VCAT 1822 AT [46]]

[19] These observations are consistent with the effect of section 22 of the Interpretation of Legislation Act 1984.

[20] What is authorised by the RLZ subdivision provision? In my opinion, it authorises a minimum area to be specified in a schedule that a lot 'must be' in a subdivision. This is confirmed by the third sentence of the provision. It provides that '[i]f no area is specified, each lot must be at least 8 hectares'. Therefore, the RLZ subdivision provision only authorises a mandatory minimum area for a lot to be specified in a schedule.

[24] ... A requirement that a lot contain a rectangle of a minimum area and a minimum side dimension does not directly relate to the minimum area of the lot. Rather, it directly relates to a requirement for the 'shape' of the lot. In effect, it is a requirement that a rectangle or shape of at least 70 m by 114 m must be able to fit inside the lot.

1. Member Code drew attention to the difference in the wording of the subdivision provision in the Design and Development Overlay, which provides:

Subdivision must occur in accordance with any lot size or other requirement specified in a schedule to this overlay.[10]

1. This compares to the subdivision provision in the Green Wedge Zone, which provides:

Each lot must be at least the area specified for the land in a schedule to this zone. If no area is specified each lot must be at least 40 hectares.[11]

1. There is no provision in the Green Wedge Zone authorising a schedule to specify any other requirement than a minimum lot size, unlike the Design and Development Overlay. It is therefore questionable whether the provisions in schedule 4 to the Green Wedge Zone, which specify an average lot yield and a maximum lot size, are valid.
2. The council submitted that these requirements are not a mistake or anomaly, as submitted by the applicant, but rather they are a result of the statutory requirements imposed by section 46F of the Planning and Environment Act 1987. Section 46F requires that any amendment to the planning scheme must be consistent with the Upper Yarra Valley and Dandenong Regional Strategy Plan (Strategy Plan). The subject land is located in a Rural 1 Policy Area under the Strategy Plan, which has an average lot yield of one lot to each 25 hectares with a minimum lot size of 18 hectares and maximum lot size of 44 hectares. The subdivision requirements in the schedule to the GWZ4 directly replicate those in the Strategy Plan.
3. Whilst this may be so, it does not mean that a schedule in a zone can provide for more than is authorised by the zone itself. It cannot exceed the power of the zone. If the council wishes to include the subdivision requirements in the Strategy Plan in the planning scheme, the correct place to include them is within the schedule to clause 53.01. The purpose of clause 53 is:

To facilitate consistency between the Yarra Ranges Planning Scheme and the Upper Yarra Valley and Dandenong Ranges Regional Strategy Plan in accordance with Section 46F of the Planning and Environment Act 1987.

1. Clause 53.01-3 provides that subdivision of land must meet the requirements of the schedule to this clause. This provision provides a clear power to include the sort of requirements now found in the schedule to the GWZ4 in the schedule to clause 53.01. This schedule already includes certain subdivision requirements in clause 7.0, which I have set out above.
2. I do not intend to make a declaration about the validity of the schedule to the GWZ4 because this did not form part of the application and, having regard to my findings about clause 62.04, it is not necessary. However, the council should seriously consider the implications of the decision in BMF Pty Ltd v Greater Geelong CC.

Is the area of proposed Lot 1 'limited by a provision of the scheme'?

1. The council made further submissions about whether the proposed subdivision met the requirements of the first dot point in the non urban zone exemption in clause 62.04, which provides as follows:
   • 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.
2. Given my previous findings that the exemption in clause 62.04 does not apply because the proposed subdivision does not constitute a realignment of the common boundary between lots, there is no need for me to deal with these submissions.

1. I find that the exemption from the need for a permit in clause 62.04 does not apply to the proposed subdivision in this case. Therefore, I am not prepared to make the declarations that the applicant seeks.

[1] Lots 10 and 11 LP4955 Certificate of Title Volume 06521 Folio 035. Lot 10 has an area of approximately 75 hectares (186 acres) and Lot 11 has an area of approximately 72 hectares (179 acres).

[2] Melbourne City Council v Popular Pastimes Pty Ltd & Anor [2006] VSC 355 at [27]

[3] Section 35(a) Interpretation of Legislation Act 1984.

[5] [2007] VSC 126 at [7] - [9]

[6] (1997) 187 CLR 834 at 408

[7] [2006] VCAT 2129

[8] [2006] VCAT 2129 at [34]

[9] [2011] VCAT 1742