Victorian Civil and Administrative Tribunal|2007-10-03|Before: Ausnet P

The applicant or owner must pay to the Council a sum equivalent to 5% of the site value of all land in the subdivision or a particular lot or lots. This payment shall be made prior to the issue of Statement of Compliance and may be adjusted in accordance with Section 19 of the Subdivision Act.

During the hearing I questioned the parties about the intent of the wording of this draft condition particularly as the responsible authority appeared to anticipate some discretion about the extent of the lots. I sought particular guidance from both Council officers about this wording, but they could not elaborate on why the Council had chosen it.
A reading of Section 18(8) of the Subdivision Act provides some indication that a Council may decide to waive a need for a contribution if it was satisfied the land could not be subdivided further. However, there is uncertainty in this aspect because there is no prohibition on subdivision or minimum lot size in the planning scheme. Whilst the covenant prevents more than one dwelling on the land affected, it does not mean the covenant cannot be varied and it does not limit subdivision.

On the basis of the proposed future dwelling on the site and the form of subdivision I consider that the subdivision is a reasonable proposal in this neighbourhood. As I explained during the hearing I do not consider this subdivision and single storey dwelling as a package will create an undesirable precedent. I am guided by the covenants affecting most properties in this neighbourhood, vegetation protection policies and the Vegetation Protection Overlay that seeks to protect both the neighbourhood character and the significant vegetation that contributes substantially to this neighbourhood character.
I can well understand the concerns of residents about unreasonable or excessive development, but I do not consider that this proposed modest single storey dwelling on a single lot is out of character with the neighbourhood. Similarly, I consider it is an outcome anticipated in the purposes of the Residential 1 Zone. Accordingly, I direct that a permit issue.

[2] including Clauses 16, 19.01, 19.03, 21, 22.01, 22.03 and 65

[3] Fletcher v Maroondah City Council [2006] VCAT 2205

[4] Fletcher v Maroondah City Council [2006] VCAT 2205

Environment Act 1987

Van Der Sweep v Maroondah CC [2007] VCAT 1806 (3 October 2007)

Van Der Sweep v Maroondah CC [2007] VCAT 1806

At a glance

Court

Decision date

Before

Source

Judgment (7 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (1)

Van Der Sweep v Maroondah CC [2007] VCAT 1806 (3 October 2007)