1 The layout of the subdivision as shown on the endorsed plan must not be altered or modified (whether or not in order to comply with any statute, statutory rule or Local Law, or for any other reason) without the prior written consent of the Responsible Authority.

2 The owner of the land must enter into agreements with the relevant authorities for the provision of water supply, drainage, sewerage facilities, electricity, gas and telecommunication services to each lot shown on the endorsed plan in accordance with that authority's requirements and relevant legislation at the time.

3 All existing and proposed easements and sites for existing or required utility services and roads on the land must be set aside in the plan of subdivision submitted for certification in favour of the relevant authority for which the easement or site is to be created.

4 Vehicle access crossings must be provided to each lot to the satisfaction of the Responsible Authority.

5 The plan of subdivision submitted for certification under the Subdivision Act 1988 must be referred to the relevant authority in accordance with Section 8 of that Act.

i the subdivision is not started within two years of the date of this permit; or,

ii the subdivision is not completed within five years from the date of starting.

The Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires or within three months afterwards.

NOTE: The starting of a subdivision is regarded by Section 68(3A) of the Planning and Environment Act 1987 as the certification of a plan under Section 6 of the Subdivision Act 1988. Completion is regarded as registration of the subdivision.

1 This was an application under section 77 of the Planning and Environment Act 1987 to review a decision by the City of Casey to refuse a permit (in Application No. P/02/03) for a two-lot subdivision of 276 Centre Road, Narre Warren generally in accordance with Plan of Subdivision No. 515246V.

2 At the commencement of the hearing and pursuant to Clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 (`VCAT Act'), Mr Bitmead requested the Tribunal to amend the application for permit and the application for review by substituting the names of the landowners, Marek Weiler and Sandra Smith, for the names of their consultants who had lodged them.

3 There was no objection to this name substitution. Being also of the opinion that such substitution was appropriate, the Tribunal made the amendment in the manner requested.

4 The subject site is located on the north side of Centre Road on the corner of Loxley Boulevard. The site is regular in shape and has a frontage of 31 metres, a depth of 37 metres and an area of 1,255 square metres. The site is currently vacant and was the land sales office and car park for the developer of the Heritage Hill Estate.

v in an established residential area of Narre Warren South

vi in a prominent position at the entrance of the relatively new Heritage Hill Estate

vii comprised by new single and double storey large houses on lots of between 500 - 1000m2

ix within easy access to Monash Freeway, reserves, education and shopping facilities.

6 It is proposed to create a two-lot subdivision with lots of 651 and 603 m2. No development or future proposal of any sort accompanies this application.

7 The subject site is Lot 333 on Plan of Subdivision No. 428296P. That plan of subdivision was created by Planning Permit no. P132/90 and P133/91 (amended) which issued on 1 October 1991, condition 10 of which required the permit holder to enter into a s.173 Agreement to prohibit dual occupancy or multi-unit developments other than as shown on the subdivision plan.

8 Lot 333 was not indicated as a multi-unit lot, and on 9 March 2001 the s.173 Agreement entered into by the permit holder was registered on title in Dealing no. X356091T.

The subdivider with the intent that its covenants hereunder shall run with the land under s.182 of the Act, binding its successors in title to the land and every part thereof, hereby covenants and agrees:

That not more than one dwelling shall be erected on each lot create on the plan.

10 It is important to note that there is nothing preventing the grant of a permit for 'subdivision' in this s.173 agreement.

11 The land is zoned Residential 1 under the Victoria Planning Provisions (VPP) format Casey Planning Scheme. Within this zone pursuant to Clause 32.01-2, a permit is required in this zone to subdivide land.

12 However, no permit is required to use or develop lots of this size for the purpose of a dwelling.

14 The relevant planning controls were fully set out at pages 7-10 of the Responsible Authority's submissions, which I adopt for the purposes of this decision.

15 In this case the Responsible Authority, the Permit Applicant and I are in furious agreement that the size of the two proposed lots, their layout and location all comply with:

i strategic Melbourne 2030 housing consolidation policies

iii council's local planning policy framework housing policies under cl. 21.05,

16 In other words, there are no factors which militate against the grant of a subdivision permit. The site is within Casey's 'built-up area' region, is within a standard lot density for this area and is well serviced by physical and social infrastructure.

17 Once I permit subdivision, a dwelling on each of these two lots comprising 603m2 and 651 m2 respectively would need no planning permission, pursuant to a combination of both cl. 32.01-1, cl. 61.05 and cl. 32.01-3 of the Casey Planning scheme.

18 And if the developer sought a dual or multi-dwelling occupancy on this unsubdivided lot, the Tribunal in Plentie PL v Banyule CC [2003] VCAT 750 held that cl. 61(4) of the Planning and Environment Act 1987, does not operate to prevent the council considering a permit for same before the s.173 is amended as if the s.173 were a registered restrictive covenant.

33.......neither the agreement nor any of the covenants contained in it are a "registered restrictive covenant" within the meaning of s 61(4) PE Act.

34. ............... I consider the proper interpretation of the definition of "restriction" in s 3 of the Subdivision Act ("SD Act") rests on the word "can" as identifying the source of the entitlement to registration. The definition requires that that entitlement must arise under the Transfer of land Act 1958 ("TL Act"). However the entitlement to registration or recording of the Agreement arises under s 181(3) PE Act, not under the TL Act.

35. I adopt the reasoning of the Tribunal in Van der Heyden v Mansfield [2003] VCAT 102 and Ur and others v Wellington Shire Council [2001] VCAT 2453 (Rickards, M).

36. I agree that the provisions of the PE Act relating to s 173 agreements constitute a code which covers comprehensively their creation, amendment, termination and enforcement. To hold that a s 173 agreement is a "registered restrictive covenant" in terms of s 61(4) PE Act would create an anomaly that the requirement of the Minister to terminate a s 173 agreement in the absence of agreement between the responsible authority and the owner would be negated by the power of the responsible authority to issue a permit to remove or vary it.

37. A significant feature of the differences in the sets of provisions in the PE Act relating to s 173 agreements on the one hand and registered restrictive covenants on the other is who is entitled to their benefit. A s 173 agreement may be made between the responsible authority by itself or jointly with any other person and the owner of the land or a person in anticipation of that person becoming the owner of the land (s 173 PE Act) and may be terminated either by its operation (s177(1)) or by agreement between the responsible authority and all parties bound by any covenants in the agreement, or by the responsible authority with the approval of the Minister(s 177(2)). There is no provision giving other persons who are not parties to the agreement (except subsequent owners of the land by virtue of the burden of the agreement running with the land pursuant to s 182 PE Act) any rights or benefits, except s 114 which gives third parties a right of enforcement.

38. This is in contrast to s 52(1)(ca) & (cb) PE Act and its references to the requirements to give notice of applications for permits which would result in a breach of a registered restrictive covenant or for the removal or variation of such a covenant to "...the owners...and occupiers of land benefited by a registered restrictive covenant..." which reflect the right of owners of land benefiting from a registered restrictive covenants at common law.

39. It is noted that s 88 TL Act makes specific provision for the notification of restrictive covenants on the titles of land subject to the burden of a covenant which is consistent with the scheme of the provisions in the PE Act relating to registered restrictive covenants.

40. Examination in Hansard of the Second Reading Speech of the Planning and Environment (Restrictive Covenants) Bill 2000 reveals no suggestion that it was the intention of Parliament that the definition of "registered restrictive covenant" should be given the wide meaning suggested by the Objectors, but rather confirms that the whole focus of the Bill was to strengthen the provisions in the PE Act relating to the right of the owners and occupiers of land benefited by a registered restrictive covenant as commonly understood.

20 As there is nothing preventing the grant of a permit for 'subdivision' in this s.173 agreement, and as Plentie holds that s.61(4) is no bar to the grant of a permit contrary to a s.173 agreement, this case raises the philosophical legal question whether I should put in train something which might need no further planning permission and which could result in breach of a registered s.173 Agreement, but which can be enforced by:

ii Responsible Authority under s.182(b) of the Planning and Environment Act 1987;

iii any person under s.114(1) of the Planning and Environment Act 1987.

21 On the one hand, it is arguably unsatisfactory that this application is not accompanied by an application for a future proposal for development, as good planning requires some forethought towards the future. In fact, cl. 65.02 2nd dot point of the Casey Planning Scheme requires consideration of

The existing use and possible future development of the land and nearby land.

22 It is also arguable that it is somewhat unsatisfactory that, if the forethought is a second dwelling on this large lot after subdivision, it predates an application to vary the s.173 agreement pursuant to s.177(2) or s.178 of the Planning and Environment Act 1987.

23 But because the Responsible Authority says to me:

that but for the existence of the s.173 agreement it is considered the proposed subdivision is appropriate being complementary with the general size of lots in the surrounding area

I am prepared, in the limited circumstances of this case where no planning factors militate against subdivision, to direct the grant of a permit for the subdivision.

24 Mr Bitmead assures me that the developer will not unlawfully construct a second dwelling on this large lot. Rather, he submits, my subdivision approval will lend weight to the merits of varying the agreement pursuant to s.177(2) or s.178 of the Planning and Environment Act 1987.

25 Accordingly I will allow the application for review and direct that a permit issue.