Siomos v Banyule CC [2007] VCAT 276

This application for a declaration is dismissed and no declaration is made.

Mr. C. McKenzie, solicitor of the firm of Best Hooper Solicitors appeared for the responsible authority.

Mr. Peter Merrigan, town planner of Millar & Merrigan Pty Ltd appeared for the applicant. He made written and oral submissions and tendered plans and aerial photographs.

The submissions and evidence in documentary form have been retained on the file of the Tribunal.

Application under s.149A of the Planning and Environment Act 1987 (PE Act) for a declaration.

That a declaration be made to the affect that, where a lot is being created by a subdivision which lot is partly in one zone and partly in another, that lot need only satisfy the minimum area requirements for one or other of the two zones but need not satisfy both.

The northern part of the land is in a Low Density Residential Zone and the southern part in a Rural Conservation Zone. The land is also subject to a Vegetation Protection Overlay (Schedule 1) and a Significant Landscape (Schedule 1) and part of the land is subject to an Environmental Significance Overlay (Schedule 1), a Public Acquisition Overlay Schedule 2 and a Land Subject to Inundation Overlay all under the Banyule Planning Scheme.

1 This case concerns a substantial piece of land with an area of 4.135 hectares on the south side of Rosehill Road. It is a so-called "battleaxe" allotment, although really "meat cleaver" would be a more appropriate term. The land has only a 15.25 metre frontage to Rosehill Road and a strip of land 68.98 metres long and 15.25 metres wide providing an access to the main area which is roughly rectangular having a width east to west in excess of 110 metres and a depth of 145.65 metres.

2 This land is in two zones under the planning scheme. The northern portion, amounted to perhaps 40%, is located in a low density residential zone. The balance is in a rural conservation zone. The boundary runs east to west across the land at a slightly oblique angles.

3 There is an existing substantial two storey brick house on the land. It is located on the rural conservation zone portion of the land, towards the northern end thereof, and relatively close to the zone boundary.

4 It is proposed to subdivide the land into four lots. Lots 1 and 2, having areas of 4,004 square metres and 4,007 square metres respectively would be wholly within the low density residential zone land.

5 Lot 4 having an area of 2.6 hectares would be almost completely within the rural conservation zone land. There is a small portion, amounting to only approximately 500 square metres, in the north-west corner of the proposed lot 4 which would be over the zone boundary and into the land zoned low density residential zone. However, nothing greatly turns on that for the purposes of this case. If necessary it would be simple enough to delete that corner from lot 4 and incorporate it in the proposed common property which would run north from that location to provide vehicle access from Rosehill Road via the handle of the meat clever.

6 The issue in this case arises in relation to the proposed lot 3. It would have a total area of 6,796 square metres of which 4,001 square metres would be north of the zone boundary and thus in the low density residential zone whilst the balance of 2,795 square metres is south of the zone boundary and thus in the rural conservation zone. The existing house is on this rural conservation zone portion of the proposed lot 3.

7 There are no houses on any of the other lots although there are some improvements such as sheds and a tennis court.

8 The zone provisions in relation to rural conservation zone land are found in cl.35.06 of the planning scheme. The problem in relation to the proposed lot 3 arises from cl.35.06-3 dealing with subdivision. That clause provides, in the first place, that a permit is required to subdivide land. It then goes on to provide "Each lot must be at least the area specified for the land in a schedule to the zone". The schedule specifies a minimum lot size of 2 hectares for lots being created by subdivision of land in a rural conservation zone.

9 This provision creates a problem in relation to lot 3. The lot is proposed to include land in the rural conservation zone amounting to 2,795 square metres together with 4,001 square metres in the low density residential zone. The low density residential zone is a minimum lot size of 4,000 square metres. The proposed lot C satisfies the minimum lot size for land in the low density residential zone.

10 However, where a lot straddles two zones it must comply with the zone controls in relation to each portion insofar as they apply to the land.

11 Mr. Merrigan, in a hopeful moment, has put forward the notion that it will be sufficient at law if such a lot, containing land from two zones, meets the zone requirement provisions of one of them and that there is no need for it to satisfy the zone requirement provisions in relation to each of them.

12 On the face of it, this strikes me as an unlikely proposition. Apparently, Mr. Merrigan has been attracted to it for several reasons. One is that it would enable this presently proposed subdivision to proceed. This would be advantageous to his client in a way that alternatives that could avoid this lot 3 problem would not be attractive. However, the legal question is not to be decided on the basis of what is convenient or advantageous, but rather what is legally correct.

13 Mr. Merrigan points out that the responsible authority has, in the past, thought that his approach was the correct one and has, in fact, allowed subdivisions including lots like the proposed lot 3 in this subdivision which extend beyond one zone and which satisfies the minimum area requirements for one but not the others of those zones.

14 The responsible authority may have sanctioned in this past, but it is now of the view that it was wrong to do so. It advised Mr. Merrigan that it now considers such a subdivision, including such a lot, to be illegal.

15 Clearly the responsible authority cannot be bound to repeat past mistakes. If it has been mistaken in the past, as it now believes, it must now avoid that mistake in the future. It would be reprehensible to proceed with illegal subdivisions now that it is aware of the point.

16 Mr. Merrigan also contends that this subdivision is a meritorious one on its planning merits and that the interpretation now relied upon by the responsible authority is restrictive and contrary, in his view, to good sense, good planning and good planning policy.

17 That is all very well, but if the present view of the responsible authority is correct in law, and the contrary is incorrect in law, the law must be applied. It cannot be "winked" at because Mr. Merrigan thinks the application here, or even generally, leads to undesirable results.

18 Faced with this impasse an arrangement was made for legal advice to be obtained. This was a joint arrangement involving the responsible authority and Mr. Merrigan. The solicitors chosen to give the advice are the usual solicitors who ordinarily act for the responsible authority, that is to say, Best Hooper, Solicitors. In this case, Best Hooper provided advice in two letters which agreed with the view that had been adopted by the responsible authority. This advice was sent to Mr. Merrigan.

19 No doubt he and his client were disappointed. He informs me that his client then sought further legal advice from another source. However, this third advice agreed with Best Hooper and the responsible authority. In these circumstances Mr. Merrigan and his client will hardly be surprised when their present application fails. The current proceeding is an application under s.149A of the Planning and Environment Act 1987 whereby a declaration is being sought by the applicant. The terms in which the declaration is sought are set out in the application in the following words:

Any new lot must satisfy the minimum area requirements of either of the two zones, not both.

20 I consider that the resolution of the question involved in this case is really fairly simple. Clause 36.06-3 in relation to the subdivision of land in a rural conservation zone, applies to all land in that zone. In this case, that means all the land south of the zone boundary amounting to almost 2.3 hectares from the proposed lot 4 plus 2,795 square metres (including the house) proposed for lot 3. The area in the zone thus amounts to approximately 2.6 hectares. There is a mandatory legal requirement that any subdivision must create lots with at least the area specified in the schedule. The specification in the schedule is two hectares per lot. The minimum possible subdivision is to divide the land into two. It is not possible to divide an area of approximately 2.6 hectares into two lots each of not less than two hectares.

21 Even if the balance of the proposed lot 3 is taken into consideration there is still insufficient area in the proposed lots 4 and 3 combined to provide two lots where neither has less area than two hectares. I do not have to decide, for the purpose of this case, whether the two hectare minimum for lot 3 can be met by including with it sufficient low density residential land so that, together with the rural conservation land of lot 3, the minimum of two hectares would be met. Not having to decide it, I will not now enter upon attempting to answer that question.

22 I am not prepared to make a declaration in the terms sought because, for the reasons explained above, I consider that such a declaration would contain an error of law.

23 It would, in my opinion, involve a misinterpretation of cl.35.06-3 and a misapplication of it so far as the presently proposed subdivision is concerned. For these reasons I propose to dismiss the application for a declaration.

_________________

RUSSELL BYARD

SENIOR MEMBER