VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P1084/2023
Permit Application no.GE/PP-35141/2022/A 	
CATCHWORDS	
Section 77 of the Planning and Environment Act 1987 (Vic); clause 53.01 of the Glen Eira Planning Scheme; public open space contribution; exemption; is it unlikely that each lot in a two-lot subdivision will be further subdivided; proposal to prevent further subdivision of each lot pursuant to an agreement entered into under section 173 agreement of the Planning and Environment Act 1987 (Vic). 	

Applicant	Jason Lewis	

Responsible Authority	Glen Eira City Council	

SUBJECT LAND	1 Foster Street
ELSTERNWICK VIC 3185	

HEARING TYPE	Hearing	

DATE OF HEARING	24 November 2023	

DATE OF ORDER	28 November 2023	

CITATION	Lewis v Glen Eira CC [2023] VCAT 1319	
Order
No amendment of permit
1	In application P1084/2023 the decision of the responsible authority is affirmed.
2	Planning permit GE/PP-35141/2022 must not be amended as sought by permit application GE/PP-35141/2022/A.

Susan Whitney
Member			

Appearances
For applicant	Ms Lucy Eastoe, solicitor, of Arnold Bloch Leibler.	
For responsible authority	Mr Samuel Laing, town planner, of Glen Eira City Council.	

Information
Description of proposal	Proposed removal of condition 5 of planning permit GE/PP-35141/2022 that requires the payment of a public open space contribution and replacement with a condition proposed by the applicant that requires the parties to enter into an agreement under section 173 of the Planning and Environment Act 1987 (Vic) preventing further subdivision of the land.	
Nature of proceeding	Application under section 77 of the Planning and Environment Act 1987 (Vic)– to review the refusal to grant an amendment to a permit. 	
Planning scheme	Glen Eira Planning Scheme	
Zone and overlays	Neighbourhood Residential Zone – Schedule 1;
Design and Development Overlay – Schedule 4; and
Neighbourhood Character Overlay – Schedule 4.	
Land description	The subject land is located on the south-west corner of the intersection between Murray Street and Foster Street. The subject land has a frontage to Foster Street of 46.53 metres, measures 30.48 metres along Murray Street and an area of approximately 1,418m2.  	

  Reasons
What is this proceeding about?
1	The applicant, Jason Lewis, seeks the Tribunal’s review of the decision by the Glen Eira City Council (‘Council’) to refuse to amend planning permit GE/PP-35141/2022 (‘Subdivision Permit’).
2	The permit allows a two-lot subdivision of the land at 1 Foster Street, Elsternwick (‘Land’) and was issued by the Council on 16 May 2022.
3	The subdivision allowed by the Subdivision Permit has not yet been undertaken. 
4	The resultant Lot 1 and Lot 2 of the subdivision will have the following dimensions and are shown in the following images:

5	The applicant seeks to amend the Subdivision Permit through the removal of condition 5 of the Subdivision Permit, which provides:
          
6	The applicant asserts that he can take advantage of one of the exemptions to the requirement to make a public open space contribution that is contained in clause 53.01 ‘Public Open Space Contribution and Subdivision’ of the Glen Eira Planning Scheme (‘Scheme’).
7	The Council asserts that the applicant cannot rely on the exemption, for the reasons set out in the next section of this decision. 
8	The applicant seeks to replace condition 5 with the following condition:
Before certification of the Plan of Subdivision the owner must enter into an agreement with the Responsible Authority under section 173 of the Planning and Environment Act 1987 to provide for the following:
(a)	That each lot created by the subdivision must not be further subdivided.
9	The Council asserts that there is no valid planning reason to impose this condition on the Subdivision Permit.  
10	The key issues for my determination are:
a.	Can the applicant rely on any of the exemptions contained in clause 53.01 of the Scheme?
b.	Is it appropriate to impose the new condition sought by the applicant?
11	Having regard to the matters that are relevant to these questions, I have determined to affirm the decision of the Council with the effect that the Subdivision Permit must not be amended in the manner sought by the applicant. My reasons follow.
Can the applicant rely on any of the exemptions contained in clause 53.01 of the Scheme?
Clause 53.01 of the Scheme
12	Clause 53.01 of the Scheme provides one way in which a public open space contribution must be made to the responsible authority in association with the subdivision of land; the other being pursuant to section 18 of the Subdivision Act 1988 (Vic).
13	Clause 53.01 provides:
       
14	There was broad agreement between the parties as to the purpose of clause 53.01 of the Scheme, acknowledging that there is no ‘purpose’ specified in the clause. Essentially, clause 53.01 enables a local council to fund its continued provision of existing public open space and the creation of new areas of public open space through the collection of contributions from subdividers, on the basis that a subdivision notionally leads to an increase in the population of an area.
15	Following Hassta Holding Pty Ltd v Maribyrnong CC, the Council submits that given it has formed the view that a public open space contribution is payable under the Scheme, the operation of section 62(1)(a) of the Planning and Environment Act 1987 (Vic) (‘PE Act’) means that a condition requiring the payment of such contribution must be included in the Subdivision Permit.
16	At the time that the Subdivision Permit was issued, the applicable public open space requirement specified in the Schedule to clause 53.01 was 5.7%.  As such, this amount is specified in condition 5 of the Subdivision Permit.
17	Since the issue of the Subdivision Permit, the Scheme has been amended and the current applicable amount is 8.3%. It is a matter of agreement between the parties that if the Tribunal is minded to refuse the application for review and affirm the decision of the Council to refuse to amend the Permit, the appropriate public open space contribution amount should remain as 5.7%. 
18	Clause 53.01-1 ‘Exemption from public open space requirement specified in the scheme’ contains exemptions from the public open space requirement, as follows:

19	It is common ground between the parties, and I agree, that based on the facts of this matter, the first and second exemptions are not available.
20	The applicant asserts that the last exemption applies because it is ‘unlikely that each lot will be further subdivided’.
21	The Council disagrees, submitting that in light of the physical and planning context of the Land, it is not unlikely that each lot will be further subdivided.
22	The task before a decision maker in assessing whether this exemption applies has been considered in numerous cases over the years. I did not understand there to be any dispute between the parties as to the applicable principles.
23	Amongst the cases cited by the parties was Perera v Casey CC, a case in which I summarised my understanding of the principles that have been established by various preceding cases, as well as setting out my views on two specific issues. In that case I stated as follows:
22 	In short, I understand the cases to establish the following:
a. 	What is important is the objective opinion of the responsible authority, and the Tribunal on review, and not the subjective intentions of the landowner;
b. 	Whether further subdivision is or is not unlikely is to be assessed objectively based on the physical facts and circumstances of the subject land (including site constraints) and its surrounds and the planning context of same, including any planning controls and policies that guide future development;
c. 	In a temporal sense, there is no warrant to confine what is meant by ‘future’ to a defined period of months or years. However, the greatest weight must be given to the present site context, controls and policies; and
d. 	Whether something is “unlikely” is not the same as whether something is impossible – some cases have referred to it meaning ‘improbable’.
23 	I agree that in the context of this exemption, the bar is not so high as to say that in order for a further subdivision to be “unlikely” it must be ‘impossible’. However, I do not agree with the Council’s submission that by extension, this only requires the Council to be satisfied that the further subdivision is ‘possible’. These are two sides of a coin – possible or not possible – that do not take account of the likelihood of the further subdivision of each lot. This is important because the exemption refers to whether it is “unlikely” that each lot will be further subdivided. The term “unlikely” imports a notion of probability, not simply possibility. Something might be possible but still be unlikely. That is why I think that the correct approach is to consider whether it is probable that each lot will be further subdivided.
24 	I also agree that there is nothing in the exemption that confines the future time period that is to be considered in making this decision. However, I think that there is a danger in approaching this as broadly as the Council has expressed – the likelihood (at any point in the future) of the further subdivision of the land – because this runs the risk of becoming meaningless. What exactly does one take into account? Does one speculate how the Land might be zoned in the future or what policies might apply in the future?
25 	Viewed in this light, whilst there is no temporal limit imposed in the exemption, in my view what needs to be considered are the provisions and policies of the Scheme as they presently stand,6 along with the existing physical context of the site and its surrounds, mindful that such physical context might change in the future in accordance with what is presently sought by the planning context of the site.
6   Along with any proposed planning scheme amendments , given the appropriate weight based on where in the process the proposed planning scheme amendment was.
[original emphasis]
24	I was referred to Farha v Darebin CC (‘Farha’) where it was said that even if only one of the two potential lots is likely of further subdivision, this does not prevent the imposition of the public open space contribution. I observe that in Farha the Tribunal was dealing with a public open space contribution payable pursuant to section 18 of the Subdivision Act 1988 (Vic) and so was dealing with the exemption contained in section 18(8)(c) of the Subdivision Act 1988 (Vic). Nevertheless, given that the wording of the exemption in that section and in clause 53.01 is the same, the reasoning used in Farha, with which I agree, is equally applicable to the exemption upon which the applicant relies in this case.
25	I have assessed this application using the above principles. 
26	It is now convenient to consider the physical and planning context of the Land.
Physical and planning context of the Land 
27	The Land is located on the south-west corner of the intersection between Murray Street and Foster Street and is a rectangular lot with a width of 30.48 metres on Murray Street, a frontage of 46.53 metres on Foster Street and an area of approximately 1,418m2. 
28	The Land is shown in the following aerial photographs, dated 29 October 2023, in both its immediate context and its wider context.
  
29	The Land is flat and is currently improved with two full size tennis courts facing Murray Street and a ‘hall’ building facing Foster Street, as shown in the following photographs.
          
30	The Land is in the Neighbourhood Residential Zone – Schedule 1 ‘Neighbourhood Residential Areas’ (‘NRZ1’) of the Scheme and is subject to the Design and Development Overlay – Schedule 4 (‘DDO4’) and the Neighbourhood Character Overlay – Schedule 4 (‘NCO4’).
31	The Land is located at the edge of the NRZ1, with an interface to the south with the General Residential Zone – Schedule 2 ‘Tram Routes, Selected Main Roads and Residential Transition Areas’ (‘GRZ2’), as shown in the following zoning map:
                         
32	The Land enjoys the benefit of three planning permits, issued in the following chronological order:
a.	planning permit GE/DP-33337/2020, issued on 13 July 2020, allowing the demolition of the existing building and the construction of six double storey dwellings above a basement on the Land (‘Six Dwelling Permit’). The Six Dwelling Permit was sought and obtained by the previous owner of the Land. The expiry provision of the Six Dwelling Permit was extended in response to an application for extension lodged by the applicant not long after he became the registered proprietor of the Land: the Six Dwelling Permit will now expire if development is not commenced by 13 July 2024 and not completed by 13 July 2026;
b.	the Subdivision Permit, issued on 16 May 2022; and
c.	planning permit GE/SP-35857/2022, issued on 17 March 2023, allowing the demolition of the existing tennis courts and associated fencing on Lot 1 and the construction of a double storey dwelling and front fence on Lot 1 (‘Single Dwelling Permit’).
33	The following image shows the Six Dwelling Permit layout overlaid with the subdivision layout of the Subdivision Permit:
                     
34	The purpose of extracting this image is not to suggest that the Six Dwelling Permit and the Subdivision Permit are related; it is just to depict how the proposed lot layout in the Six Dwelling Permit ‘fits’ in the areas of Lot 1 and Lot 2, to provide perspective on what could be accommodated in those lot areas. 
35	The following image shows the Single Dwelling Permit ground floor layout as located on Lot 1:
             
36	The applicant made submissions regarding the fees that he has incurred in furtherance of the Single Dwelling Permit, including architectural fees, consultant costs and infrastructure costs associated with the connection of sewer to proposed Lot 2. The applicant submits that the project is currently out for tender with a view to appointing a builder in due course.
37	The Council observes that its records indicate no building permit has been obtained for either the Six Dwelling Permit or the Single Dwelling Permit.
38	The planning policy framework of the Scheme changed pursuant to Planning Scheme Amendment C220glen, which came into effect on 20 April 2023, after the issue of all three of the planning permits that apply to the Land.
39	Both before and after Amendment C220glen, the Land is in the Minimal Change Area, being the category of least housing change, the other two categories being Incremental Housing Change Area and Substantial Housing Change Area. 
40	The Council contends that Amendment C220glen is policy neutral and that the Land was and remains in a Minimal Change Area. The current mapping is contained in the Strategic Framework Plan at clause 02.04-1 of the Scheme.
41	The applicant contends that whilst the name of the change level category remains the same, following Amendment C220glen the Scheme now suggests much more tempered growth in this area. This is based on the wording now used in the relevant clause, along with the absence of some of the detail that was previously in the Scheme in relation to the change areas. 
42	The Land is also located in Precinct 5 ‘Elsternwick (Prentice Street area)’ of the Neighbourhood Character Precinct Plan in clause 15.01-5L ‘Neighbourhood Character’ of the Scheme. In Precinct 5, policy seeks to:
a.	maintain the Victorian, Edwardian and interwar period dwelling base and provide for respectful infill development; and
b.	maintain the development pattern of dense, low-rise development, with small lots, minimal front and side setbacks and compact dwelling types such as cottages and terraces.
Tribunal’s findings
43	For the purposes of the exemption from the public open space requirement relied on by the applicant, having regard to the physical and planning context of the Land, I find that it is not unlikely that each lot will be further subdivided. I say this for the following reasons.
44	In terms of zoning, the NRZ1 zoning of the Land seeks to ensure that development respects the identified neighbourhood character, heritage, environmental or landscape characteristics. I was not taken to any heritage, environmental or landscape characteristics that would impede subdivision or development on the Land.
45	The Land is a flat, rectangular-shaped corner parcel with relatively long frontages to each street and a large area, both numerically (1,418m2) and by reference to the surrounding properties. The Land is not encumbered by any registered restrictive covenant or easement. 
46	The suitability of the Land for subdivision is evidenced by the Council’s issuing of the Subdivision Permit. In some respects, it is also evidenced by the Six Dwelling Permit, which whilst it was only for dwelling development, creates a layout that might lead to an associated six-lot subdivision if the development was undertaken.
47	Whether it is unlikely that each of Lot 1 and Lot 2 will be further subdivided is what is before me now. In this respect, I note that in order for the exemption to apply, I must be satisfied that it is unlikely that both Lot 1 and Lot 2 will be further subdivided; if I conclude that it is unlikely that one of the lots will be further subdivided but consider that the other lot is not unlikely to be further subdivided, then the exemption will not apply to the subdivision the subject of the Subdivision Permit.
48	It is also a matter that is to be assessed objectively, as opposed to having regard to the stated, subjective intentions of the applicant.
49	As noted with respect to the Land, I observe that Lot 1 is similarly a flat, rectangular-shaped corner parcel with relatively long frontages to each street and a large area, both numerically (1,022m2) and by reference to the surrounding properties. I find that it is a large and unique site in this context that lends itself to possible further development.
50	In terms of neighbourhood character, whilst I accept that the Land’s Minimal Change Area designation is an indication that development expectations are less than if the Land was in an Incremental Change Area or a Substantial Change Area, I also observe the strategy in clause 16.01‑1L‑01 of the Scheme that was highlighted by the Council, being to ‘support the redevelopment of large development sites to contribute to housing density’. Importantly for present purposes, Lot 1 could be described as a relatively large development site, relative to surrounding properties.
51	When regard is given to the surrounding lot layout and development pattern in Murray Street and on the opposite side of Foster Street, including the size and shape of surrounding lots, I find that it is not unlikely that Lot 1 will be further subdivided; further subdividing Lot 1 would not produce a layout that is at odds with the existing lot pattern in Murray Street or Foster Street.
52	In addition, given the area and dimensions of Lot 1, further subdividing Lot 1 could conceivably result in respectful infill development that maintains the development pattern of dense, low-rise development, with small lots, minimal front and side setbacks and compact dwelling types, for the purposes of clause 15.01-5L of the Scheme.
53	Having regard to the surrounding lot layout and development pattern, it is perhaps unlikely that Lot 2 will be further subdivided due to its area of 396m2 and its 13 metre frontage to Foster Street. In this respect, I observe that whilst the plan extracted above of the Six Dwelling Permit overlaid with the Subdivision Permit shows two dwellings constructed on Lot 2, those dwellings rely on central basement car park for car parking provision, meaning that if Lot 2 was to be developed for two dwellings they would need to be designed differently to provide for car parking. 
54	However, I acknowledge the more intensive development of the property on Foster Street that adjoins Lot 2 to the south. I note the different zoning of that property. I also acknowledge that Lot 2 is on the interface of the two zones, separated from the adjoining property by a laneway and with a non‑sensitive abuttal to the south, this being the carpark associated with the apartment development, as shown below. 
           
55	All of these things might enable more intensive development of Lot 2 and might make it not unlikely that it will be further subdivided.
56	In any event, even if I was to find that it is unlikely that Lot 2 will be further subdivided, I remain of the view that it is not unlikely that Lot 1 will be further subdivided.
57	I accept that the applicant submits that he does not intend to act upon the Six Dwelling Permit and that he seeks to act upon the Single Dwelling Permit to construct a home for his family. I understand that one reason the applicant has not commenced construction pursuant to the Single Dwelling Permit is financial, in that he is seeking to dispose of Lot 2 to assist in financing the development pursuant to the Single Dwelling Permit.
58	Having regard to the layout of dwelling approved in the Single Dwelling Permit, I accept that when that dwelling is constructed there will be no prospect of another dwelling lot being able to be created out of Lot 1.
59	The Council submits that in order for the applicant to rely on the construction of the dwelling pursuant to the Single Dwelling Permit as justification for it being unlikely that Lot 1 will be further subdivided, that dwelling would need to be constructed to ‘lock-up’ stage. 
60	At present, not only is the dwelling not at ‘lock-up’ stage, dwelling construction has not even commenced.
61	In previous cases where a dwelling has been recently constructed on land, one reason weighing against the likelihood of further subdivision is the probability of a person demolishing a relatively new building in order to further subdivide. In the present case, that reasoning does not apply as the dwelling has not been constructed on Lot 1. 
62	Whilst I make no finding as to the stage at which construction must be in order to rely on the presence of the dwelling as telling against the likelihood of further subdivision, I will say that the actions taken by the applicant pursuant to the Single Dwelling Permit thus far are insufficient to weigh against the likelihood of further subdivision in any meaningful sense.
63	That is not to say that I do not have sympathy for the applicant’s financial intentions; just that it has no bearing on the question before me. 
64	Accordingly, for the reasons set out above, I find that Lot 1, and perhaps even Lot 2, is not unlikely to be further subdivided. 
65	Accordingly, the exemption in clause 53.01 of the Scheme that is sought to be relied upon by the applicant is not available in the circumstances. 
66	As such, there is no warrant for deleting condition 5 of the Subdivision Permit.
Is it appropriate to impose the new condition sought by the applicant?
Parties’ submissions
67	The applicant seeks to address this situation through the inclusion of a new condition on the Subdivision Permit which, through the imposition of an agreement made under section 173 of the PE Act (‘s173 agreement’), would prohibit the further subdivision of each of Lot 1 and Lot 2.
68	The applicant’s suggested drafting is as follows:
Before certification of the Plan of Subdivision the owner must enter into an agreement with the Responsible Authority under section 173 of the Planning and Environment Act 1987 to provide for the following:
(a)	That each lot created by the subdivision must not be further subdivided.
69	The applicant submits that the s173 agreement is not to defer payment of the public open space contribution but rather, to limit the further subdivision.
70	The applicant referred me to the Supreme Court of Victoria decision in Maroondah CC v Scott, where the Court considered a planning permit condition that required a s173 agreement to be entered into preventing the subdivision of each of the resulting lots of a subdivision ‘except with the written consent of the responsible authority’. In that case, the subdivision permitted created two lots each containing an existing dwelling house, from a single lot that contained two dwelling houses.
71	The Court found that the proposed condition was one that fairly and reasonably related to the subject matter of the permit, in that it was concerned with the planning consequences of the proposed subdivision and sought to confine the applicants to their stated intentions; i.e. that they had no intention of seeking a further subdivision of the land. 
72	Further, the Court stated:

          
          
73	However, the Court found that the particular wording of the condition imposed by the Tribunal, in preventing further subdivision ‘except with the written consent of the responsible authority’ did not prevent the land from being further subdivided. The reasons given by the Court for the Tribunal in that case erring in law were as follows:

           
74	The applicant submits that the inclusion of the proposed condition only furthers the applicant’s submissions that a further subdivision of each lot is unlikely. As such, through the imposition of the proposed condition, the Tribunal could then find that it is unlikely that each lot will be further subdivided. Accordingly, the Tribunal could remove condition 5 from the Subdivision Permit as a public open space contribution would no longer be required for the subdivision.
75	The applicant submits that the absolute drafting of the proposed condition will ensure that there is no further subdivision, thus avoiding the problems identified by the Court.
76	The Council submits that there is no planning justification for imposing such an agreement. 
77	The Council referred me to the Tribunal decision in Raynor v Maroondah CC, which was an application made under section 80 of the PE Act where the Tribunal commented upon the applicant being prepared to enter into a s173 agreement to prohibit future subdivision. The Tribunal stated:

78	The Council referred to various other cases that address the use of s173 agreements in the context of public open space contributions. I note that some of those cases had different factual circumstances to this case.
79	The Council further submitted the following:

Tribunal’s findings
80	A s173 agreement is to be entered into for a planning purpose. Pursuant to section 174(2) of the PE Act, a s173 agreement may be entered into for any one or more of the following matters:
                    
81	Whilst I accept that there are instances where a s173 agreement might be used to prohibit further subdivision of land for planning reasons, I do not accept that this is appropriate in the current situation.
82	I accept, and am bound by, the Court’s determination in Maroondah CC v Scott that the condition in dispute was imposed for a valid purpose reasonably capable of being related to the implementation of planning policy, i.e. to seek to ensure that subdivision does not occur without the reasonably appropriate provision of public open space. 
83	However, whether or not the imposition of such a condition is warranted in the circumstances, noting that there may be competing urban consolidation objectives in the planning scheme that encourage subdivision of land, is, as the Court stated, a question of planning judgment.
84	In the present case, if the proposed condition was imposed in the Subdivision Permit, then prior to certification of the plan of subdivision, a s173 agreement must be entered into that prevented the further subdivision of Lot 1 and Lot 2. Lot 1 and Lot 2 would be created and could be separately disposed of by the applicant. 
85	Whilst I accept the applicant’s submissions that at this point in time it is his intention to retain Lot 1 and construct the family home pursuant to the Single Dwelling Permit, this has not yet occurred. Nor is there any dwelling constructed on Lot 2; instead, there is a ‘hall’ building.
86	This is in contrast to the facts of Maroondah CC v Scott where there was an existing dwelling constructed on each of the two resultant lots of the subdivision.
87	Plans can change, intentionally or otherwise. If the applicant does not construct on Lot 1 pursuant to the Single Dwelling Permit, this leaves a parcel of land of 1,022m2 on a corner site in Elsternwick that is prohibited from being further subdivided. 
88	It will also result in Lot 2 being prevented from further subdivision, in circumstances where it is the applicant’s intention to sell Lot 2.
89	In light of the physical and planning context of Lot 1 in particular but also of Lot 2, I am not persuaded that there is any planning justification for limiting the potential further subdivision of either lot. This is as opposed to the condition being imposed to, in the words of the Court in Maroondah CC v Scott, confine the applicant to his stated intentions and ensure that subdivision does not occur without the reasonably appropriate provision of public open space, which I acknowledge the Court identified as a valid purpose for the imposition of the condition. However, the Court also observed that the balancing of this purpose against competing urban consolidation objectives in the planning scheme was a question of planning judgment. It is this question that I am now considering.
90	Given the area, dimensions, regular shape and location of Lot 1, and potentially of Lot 2, it may well be that each of the lots are potentially well placed to contribute additional dwellings to Elsternwick, thereby assisting with addressing projected housing need in the municipality. 
91	Whilst I accept that the Land is not located in an area designated for Substantial Change or even Incremental Change, in light of the unique physical and locational characteristics of Lot 1, it may well be that Lot 1, and potentially Lot 2, are considered appropriate for more intensive development. 
92	Whether any particular proposed subdivision is suitable or appropriate to the physical and planning context of the site is to be assessed at the time of application. However, if this condition was imposed there would not be an opportunity for such future application to be made.
93	In saying this, I acknowledge that the PE Act contains a process for amending or ending s173 agreements. However, I agree in principle with the applicant that given the proposed absolute wording of the condition, it would be challenging – albeit, not impossible – to amend or end the proposed s173 agreement to remove the proposed prohibition.
94	I observe that if I was minded otherwise – that is, if I thought that the process for amending or ending s173 agreements contained in the PE Act did readily enable the prohibition to be changed or removed – this of itself might be reason to refuse the proposed condition, on the basis that it did not, in fact, prevent the land from being subdivided. 
95	Overall, for the reasons set out above, I find that whilst the condition proposed by the applicant could be imposed in the Subdivision Permit, in that it is not an invalid condition, in the facts and circumstances of this particular case I am not prepared to impose that condition.
Conclusion
96	For the reasons given above, the decision of the Council is affirmed. Condition 5 must not be removed from the Subdivision Permit and the applicant’s proposed condition is not to be included in the Subdivision Permit. 

Susan Whitney
Member