(given orally at the hearing and subsequently revised)

1 This is an application under s.79 of the Planning and Environment Act 1987 in respect of the failure by the responsible authority to grant a permit to subdivide the land into two lots, each lot containing an existing dwelling. The purpose of this hearing is to decide whether there is a discretion under the planning scheme to grant a permit for a subdivision or whether this is prohibited.

2 The situation is unusual because the subject land, which abuts the Melton Reservoir, is in two zones. A strip of land adjacent to the reservoir is in the Rural Conservation Zone whilst the remainder (and bulk) of the land is in the Green Wedge Zone. The land is also affected by an Environmental Significance Overlay (ESO2) and Wildfire Management Overlay.

3 The land has an area of 55 hectares. Under the provisions of the Green Wedge Zone the land could be subdivided into two lots because it complies with the minimum subdivision size requirements of this zone. However, under the Rural Conservation Zone, the minimum allotment size is 40 hectares. Consequently the subdivision is prohibited.

4 When a planning permit was granted for the second dwelling in 2001, the planning scheme provisions at that time would have permitted a single lot to be excised. Since then the planning scheme provisions have changed and single lot excision is no longer permitted.

5 Mrs Rumpf has been caught in a difficult situation. Unfortunately, as the planning scheme stands at present, there is no way out. The Victoria Planning Provisions and Melton Planning Scheme do not contain special provisions for land in two zones. Clause 61.05 of the scheme provides that land may be used or developed only in accordance with the planning scheme. This means that all provisions of the planning scheme must be complied with. Thus any use or development proposal, including a subdivision, must meet the requirement of both zones where land is included in two zones. As the proposed subdivision does not meet the requirements of the Rural Conservation Zone, it is prohibited.

6 It may seem unfair to Mrs Rumpf that where the bulk of her land is in a zone that would allow the subdivision, the subdivision is nevertheless precluded by reason of the small proportion of land in the Rural Conservation Zone. Nevertheless, unless the planning scheme is changed, that is the legal situation.

7 To try and get the planning scheme changed, Mrs Rumpf could request that her land be rezoned to Green Wedge Zone or that it be included in the schedule to clause 52.03 of the planning scheme, which relates to specific sites and exclusions.

8 Mrs Rumpf's land is not the only land in the vicinity which is included in two zones. Most land around the Melton Reservoir appears to be in a similar situation. Any application to rezone the land would have to be considered in the broader context. Likewise, any request to include the land in the schedule to clause 52.03 in order to permit the subdivision would also need to be considered in terms of what precedent it might set and what the broader planning implications might be. I make no comment on the merits of either proposal. That would be a matter for the council to consider if any such request for a planning scheme amendment was made.

9 As things stand at the moment however, the application for review must fail because there is no power to grant a planning permit for the proposed two lot subdivision.