1. The parties agree on the relevant facts and case law.
2. With respect to the land and approved development, this includes the following:
   • The description of the subject land, including a site area of around 1,300 square metres which is less than the figure of 1,408 square metres cited in the application material and officer's assessment.
   • The location of various Overlays consistent with significant development constraints; these are associated with the rear of the subject land relating to the Tanti Creek abuttal, the slope, Melbourne Water flooding requirements, and the presence of an easement.
   • There are only single detached dwellings, or two dwelling developments, in Shelbourne Court today and that an earlier application for three dwellings at No. 9 Shelbourne Court was not supported by the Council and subsequently amended and approved in April 2015 for two dwellings.
   • There is no plan of subdivision as part of the application but a plan tendered by Ms Lardner shows Lot 1 to be 500 square metres and Lot 2 to be approximately 800 square metres. This layout was accepted as the likely plan of subdivision.
   • A section 173 agreement applies (Condition 32) that ties subdivision with the construction of the two dwellings approved under the Permit.
   • The assumption that the two approved dwellings will be built in accordance with the Permit.
3. With respect to case law, as most relevant to this proceeding, this includes:
   • Based on Clause 52.01, the test is whether further subdivision is "unlikely" rather than "likely" or "possible". "Unlikely" does not mean "impossible".
   • Whether further subdivision is unlikely must be determined on an objective review and the current intentions of an owner to not further subdivide the land do not carry weight.
   • There is no specific timeframe for when further subdivision might occur.
   • Further subdivision is considered in the context of physical and strategic considerations and opportunities.
4. Both parties referred to previous Tribunal decisions[3] in support of their submissions. I have had regard to these decisions.

1. The Applicant submits that there are sufficient unknowns and planning scheme constraints on the future development of the land to justify the conclusion that both of the two lots are unlikely to be further subdivided. It argues that the subject land is heavily constrained by its physical circumstances that mean further subdivision is unlikely. While the Council contends that there is potential for further subdivision in accordance with policy, Ms Lardner submits that the Council has not approved any three lot subdivisions in Shelbourne Court. This is consistent with the distinct character of Shelbourne Court, a cul de sac with a curvilinear form that limits multi-unit development on single lots. The Council's position assumes one or both dwellings will be replaced but there is no reason to conclude that the approved dwellings will not have a building life span of some decades. Ms Lardner asked rhetorically how far into the future can one reasonably travel with any certainty in terms of the applicable planning scheme provisions? The direction of the planning scheme decades into the future is unknown.
2. The Council submits that the subject land is located in an area in which its policies encourage increased residential densities because of the proximity to the Mornington activity centre. Further subdivision would not, therefore, be contrary to policy. The Council submits that further subdivision of the land would be consistent with those policies and the lots would be capable of further subdivision. Mr Rantino points to other locations, such as Murray Street, as examples. He further submits that the existence of the new dwellings should not be determinative because the section 173 agreement will be spent once the houses are built and the house/s can be demolished; that may occur because of continued changes in the economy and property prices. Moreover, Mr Rantino's case is that the lot sizes are amenable to multi-dwelling development in the medium to long term as each has separate vehicle access and street frontage without any common property. The lots only have encumbrances associated with the rear portion of the subject land. The section 173 agreement was said by Mr Rantino to not prevent a further application involving subdivision (contrasting this with a covenant).

1. The exemption relied upon by the Applicant in Clause 52.01 is:

It subdivides land into two lots and the council considers it unlikely that each lot will be further subdivided.

1. On many points, I accept the Council's submission:
   • The land is constrained by physical circumstances such as the creek, slope and easement but its subdivision into more than two lots is not unlikely when taking into account the lot sizes and the purpose of the General Residential Zone.
   • There are no Design and Development Overlays or other types of controls, as apply elsewhere in the Mornington Peninsula Shire (eg. around Mr Eliza) to steer a lower density outcome.
   • Taking into account considerations such as those in Clause 55 and 56, the land can physically fit more than two dwellings and two lots - whether approval for such would be granted relates to the merits of a specific design response for dwellings and lots.
   • The existing character of Shelbourne Court is of one and two dwellings on lots equivalent to the original subdivision. It is not difficult to envisage a sensitively designed subdivision having regard to the site's wide street frontage, its amenity value with frontage to the Tanti Creek, the lack of common property, and broader Scheme ambitions given the land's proximity to the Mornington town centre. The lot's shape could see a pair of smaller dwellings/lots to the rear within a similar envelope as the large, approved, dwelling. The curved street frontage means Lot 1, to the front, is less likely to be subdivided than Lot 2 but, again, a design with smaller dwellings (be consistent with policy) rather than the large dwellings (with double garages and 3+ bedrooms) the subject of the approval, could occur.
   • The section 173 agreement included as Condition 32 requires the approved dwellings to be built. Each lot would, therefore, contain a dwelling, rather than there being significant doubt as to the future form of any development. Having said that, the presence of a section 173 agreement does not preclude future redevelopment or subdivision. Agreements can be varied or removed. That can be done before a house is erected should the Council agree to amend the permit or if it grants a new permit. If the approved dwellings are built, the section 173 agreement would be spent and there would be scope to consider changes to the dwellings or new construction.
2. I appreciate Ms Lardner's point about how far into the future one must consider, but, as observed in Thompson[4], redevelopment cannot be assumed to be unlikely even when recent building works are involved.
3. The circumstances in this proceeding are different to many of the cited Tribunal decisions where there is no approved development for the lots and/or there are pre-existing older dwellings on newly-created created lots. It may not be the case that subdivision of the approved lots is probable, but that is not the test set by Clause 52.01.
4. The imposition of Condition 31 makes clear that the Council has not reached a conclusion that it is unlikely that either of the lots will be further subdivided having regard to its assessment of the site's physical and planning contexts. That is the case even though it seems that it has not supported other proposal for three units - which could be for a variety of reasons. I do not find the Council acted unreasonably in forming its view.

1. For the above reasons, I find that Condition 31 should not be deleted from Permit P14/0865.
2. While the second ground of review was not pursued by the permit holder, and without accepting that there were wording difficulties with the condition, I will vary the Council's decision as offered by Mr Rantino so that there can be no doubt as to the public open space contribution required.

[1] I have considered the submissions of all parties who appeared, all written and oral evidence, all exhibits tendered by the parties, and all statements of grounds. I do not recite or refer to all of the contents of those documents in these reasons.

[2] Both parties consented to the Tribunal as constituted dealing with the matter as a question of law [section 107 of the Victorian Civil and Administrative Tribunal Act 1998 and Clause 66 of schedule 1 to the same Act].

[3] Including Macleod v Mornington Peninsula SC [2008] VCAT 2101, Thompson v Maroondah CC [2007] VCAT 2455, Van Der Sweep v Maroondah CC [2007] VCAT 1806, Tucker v Mornington Peninsula SC No 3 [2006] VCAT 1780, Timespan Pty Ltd v Knox CC [2003] VCAT 357, Maroondah CC v Scott 29 VPR 231, Estorffe v Mornington Peninsula SC [2008] VCAT 1752, The Trustees of the Poor Sisters of Nazareth v Boroondara CC [2009] VCAT 69, Coastal Surveys v Mornington Peninsula SC [2008] VCAT 125.

[4] Thompson v Maroondah CC [2007] VCAT 2455 at paragraph 19.