VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment DIVISION
planning and environment LIST	vcat reference No. P1722/2019
Permit Application no. 227/2019	
CATCHWORDS	
Section 80 Planning and Environment Act 1987; Port Phillip Planning Scheme; Neighbourhood Residential Zone Schedule 5; Heritage Overlay Schedule (HO8); Special Building Overlay Schedule 1; Subdivision; Resubdivision; Two lots; Public Open Space Contribution; Whether further subdivision unlikely.	

APPLICANT	Paul Douglas Jones	
responsible authority	Port Phillip City Council	
SUBJECT LAND	126 & 128 Ruskin Street
ELWOOD	
WHERE HELD	Melbourne	
BEFORE	Joel Templar, Member	
HEARING TYPE	Hearing	
DATE OF HEARING	17 July 2020	
DATE OF ORDER	13 August 2020	
CITATION	Jones v Port Phillip CC [2020] VCAT 873	

Order
No change to conditions
1	In application P1722/2019 the decision of the responsible authority is affirmed.
2	No changes are made to the conditions in planning permit 227/2019 issued by the responsible authority on 1 July 2019.

Joel Templar 
Member			

Appearances
For Paul Douglas Jones	Mr Darren Wong, lawyer of Planology Pty Ltd.	
For Port Phillip City Council	Ms Kierra Parker, lawyer of Maddocks Lawyers.	

Information
Description of proposal	Subdivision of the land into two lots by resubdividing two existing lots into a different layout. Currently, both lots are roughly rectangular in shape and of similar dimensions. The proposal would result in 128 Ruskin Street (Lot 1) becoming an ‘L’ shaped lot, by comprising what is currently a portion of 126 Ruskin Street (Lot 2). The proposed and existing lot layouts are shown respectively below:
	
Nature of proceeding	Application under section 80 of the Planning and Environment Act 1987 – to review the conditions contained in the permit.	
Planning scheme	Port Phillip Planning Scheme	
Zone and overlays	Neighbourhood Residential Zone Schedule 5 (NRZ5)
Heritage Overlay Schedule (HO8) 
Special Building Overlay Schedule 1 (SBO1)	
Permit requirements	Clause 32.09-3 – to subdivide land.
Clause 43.01-1 - to subdivide land.
Clause 44.05-3 - to subdivide land.	
Land description	The subject site comprises two separate lots abutting one another known as 126 and 128 Ruskin Street. 126 Ruskin Street is ‘mid-block’, with other residential properties abutting either side, one of which is 128 Ruskin Street to the south and which abuts a laneway on its southern side. Both abut a laneway to the rear. Each currently contains an existing, single dwelling both with frontage to Ruskin Street. At the rear of 126 is a relatively recently constructed swimming pool abutting the rear boundary. At the rear of 128 is a double storey garage/studio with vehicular access from the splayed corner of the two intersecting laneways.

A fence is constructed approximately two-thirds of the way along the length of 126 Ruskin Street in the approximate location of the new rear boundary of this lot. This creates a much larger area of contiguous private open space, including the pool and garage for the use by the occupants of 128 Ruskin Street and a consequently smaller area of rear private open space at the rear of 126 Ruskin Street.

Reasons
What is this proceeding about?
1	This proceeding concerns the review by the applicant of the inclusion of a condition (condition 5) on planning permit 227/2019 issued by the council on 1 July 2019. The permit allows a two-lot subdivision. The condition in dispute requires a 5% public open space contribution.
2	The planning scheme requires a 5% public open space contribution for subdivisions but includes an exemption for two lot subdivisions, if it is considered that further subdivision of the land is unlikely.
3	The council submitted that a contextual approach must be taken to the assessment of whether further subdivision was unlikely. This includes the physical, planning and policy constraints, which it said, together with guiding principles taken from previous Tribunal cases, results in further subdivision of the land not unlikely and therefore justifies the 5% requirement.
4	The applicant submitted that further subdivision of the land was unlikely, based on its contextual analysis and differing cases. Its contextual analysis also included the recency of, and considerable amount of money spent on, existing improvements at the rear of both sites, being the double storey garage studio and swimming pool. 
5	The applicant also relied on the original purpose behind the exemption contained within the scheme under which it said the applicant benefitted. It submitted that the original purpose was to ensure that a land owner or subdivider did not undertake series’ of two lot subdivisions in order to avoid a public open space contribution where an otherwise greater number of lots than two would be achieved and which would then be subject to the contribution. 
6	The applicant also submitted that the purpose and function of the land would remain unchanged, being private open space associated with a dwelling, irrespective of the subdivision (which just reapportions the amount of private open space between the properties).
7	I must take an objective view of whether further subdivision of the land is unlikely. I must do so taking into account the physical and planning context of the site.
8	I have determined that further subdivision of the land is not unlikely and that the condition should remain and the contribution be paid, if the subdivision is pursued. My reasons are set out below.
planning scheme
9	Although this is not a buildings and works proposal, the strategic context is a critical component of my determination. This is because the prospect of future development and subdivision is a significant factor that I must consider based on the relevant planning controls and policies.
10	Clause 53.01 states the following:
A person who proposes to subdivide land must make a contribution to the council for public open space in an amount specified in the schedule to this clause (being a percentage of the land intended to be used for residential, industrial or commercial purposes, or a percentage of the site value of such land, or a combination of both)…..
11	The planning scheme includes a schedule to this clause and requires a 5% contribution in this case.
12	Clause 53.01 also includes exemptions, one of which is central to this case:
A subdivision is exempt from a public open space requirement specified in this scheme if:
•	It subdivides land into two lots and the council considers it unlikely that each lot will be further subdivided.
13	There is an exception built-in to this exemption. If it is considered not unlikely that further subdivision will occur, then the exemption does not apply. In that circumstance, the public open space contribution must be paid. 
14	There have been numerous Tribunal cases which have previously dealt with this issue. The parties relied upon several of these to support their case and to set out the guiding principles for this exemption, and the exception to it, that have evolved over time.
15	Each of the two lots that comprise the subject site are subject to the same planning controls, despite being two separate lots.
16	The subject site is zoned NRZ5. In addition to the purpose of the NRZ, the NRZ5 has the following neighbourhood character objective:
To maintain the distinctive garden suburban character including larger lot sizes with generous landscaped front and side setbacks.
17	There are no clause 54 or 55 variations within the NRZ5 and no minimum subdivision area.
18	The subject site is also subject to the Heritage Overlay and Special Building Overlay.
19	The only heritage fabric on the subject site is each of the dwellings. It was common ground that the existing garage/outbuilding and swimming pool are of no heritage significance.
20	The relevant statement of significance for this heritage precinct also makes no mention of the subdivision pattern or lot layout as being of any heritage significance. Key elements of the statement of significance note:
The Area has aesthetic value for the diversity of its villas and inter-war apartments often evoking romantic images of the period. Its tree lined streets are also a distinctive characteristic. The juxtaposition of fine commercial and public buildings and spaces at the former Elwood Junction centre has landmark value.
21	The SBO1 does not contain any detail with respect to minimum floor levels that might be required for further development, nor does it set out any specific restrictions.
22	A permit would be required under all three of the above provisions for further subdivision of the land and, also for new buildings and works, if for a dwelling.
23	The council articulated that local policy provided support for further development of the site including the following:
•	That the municipality plays a growth role;
•	There is an increasing population which is expected to continue into the future;
•	Decreasing household sizes within the municipality;
•	Support for high quality public open space for the increasing population.
24	The applicant submitted that there were various policies or policy statements within the scheme that supported the position that further subdivision was unlikely. These include:
•	That heritage, neighbourhood character and amenity need to be protected.
•	Development is sought in spacious and treed surrounds.
•	Protect the existing suburban character of Elwood by encouraging the retention of large dwellings and single dwelling lots. 
•	Encourage new developments to respond to a number of character elements, including detached dwellings on large allotments with generous front, rear and side setbacks that allow for attractively landscaped large open space areas with established trees.
25	The scheme also includes a heritage policy at clause 22.04. This policy is silent on subdivision but does include a section that is relevant for new buildings. It seeks respectful new development, that maintains or enhances principal facades of a heritage place, as well as other siting and design elements that are reflective of those found in the heritage place.
26	There is also a subdivision policy at clause 22.05. It seeks that subdivision of vacant land be accompanied by a development plan or proposal, as well as consideration of car parking provision and that any existing car parking provision associated with a single dwelling be retained for that existing dwelling.
27	Clause 65 and 71.02 are also relevant considerations I have taken into account.
is further subdivision unlikely?
28	Central to this dispute, is whether further subdivision of the subject site, or part of it, is unlikely.
29	The parties take opposing views about this for varying reasons.
30	Both the council and the applicant agreed that even if I found that only one of the new proposed lots was not unlikely to be subdivided, then it was still open for me to find that the exemption under clause 53.01 did not apply and that a contribution was required.
31	The applicant submitted that there were six key reasons about why further subdivision was unlikely:
•	The purpose of the exemption at clause 53.01. 
•	The section 173 agreement that applies to part of the land.
•	The zoning and neighbourhood character objectives.
•	The applicable overlays.
•	Relevant policies.
•	The existing buildings on and the physical conditions of the land.
32	I deal with each of these below, although some are grouped together as part of the planning context.
Purpose of the exemption
33	The applicant submitted that: 
34	Underpinning the purpose of clause 53.01 and the exemption at clause 53.01-1 is the assumption that subdividing residential land will lead to a greater number of people in an area and, consequently, a greater need to public open space or improvements to existing public open spaces. As observed in 21 to 25 Nelson Road:
•	Ms Blackburn’s submissions in Crowden demonstrate that bona fide two lot subdivisions have been exempt from this requirement since at least 1958 when the Local Government Act was introduced. I can only presume that the population increase caused by such subdivisions was so incremental as to not warrant a land or cash contribution. Otherwise, I can see no purpose in the exemption.
34	It was submitted that the matter before me is not one where the landowner is seeking to make a series of two lot subdivisions where more than two lots would eventuate and therefore could claim the exemption in each in order to avoid paying the public open space contribution. The applicant submitted that the purpose and function of the land will remain unchanged, that being private open space associated with a dwelling, just in a different layout that currently exists.
35	What the applicant submitted in this respect, is a subjective position that the land will continue to be used for the purposes of private open space. 
36	I do not accept this argument, as it is highly subjective and my task is one of objectivity in assessing whether further subdivision is unlikely.
37	If I were to adopt or agree with the observations in the case quoted by the applicant, then my assessment needs to be based on whether, on an objective assessment of the site and relevant scheme considerations, it is unlikely that this proposal could lead to further subdivision of the land. I cannot simply rely on the submissions of the applicant regarding what their future intentions are, or are not, and draw a conclusion that further subdivision is therefore unlikely.
Section 173 Agreement
38	A section 173 agreement is registered on the title of 128 Ruskin Street. The covenants within that agreement state that the garage and first floor area above it shall only be used in association with the existing dwelling and shall not be used as a separate residence.
39	The applicant submitted:
•	That the agreement is relevant and should be given weight but only in the circumstances of where the building it applies to, exists. 
•	It accepted that if the building did not exist, the agreement would effectively become redundant.
•	The agreement prohibited the outbuilding from being used as a separate dwelling.
•	The agreement is clear, unambiguous and absolute in terms of its restrictions on the existing building.
40	The applicant did acknowledge, however, that the agreement could be removed from the land, either by agreement of the parties to it or by the process set out in the Planning and Environment Act 1987 . It did qualify, however, that any such consideration is based on the likelihood of that occurring. It said that possibility is remote based on the council’s reluctance to end such agreements and the purpose for which it was entered into in the first place.
41	The applicant also accepted that on the assumption that the merits of a further subdivision and/or development proposal were approved, that the natural course would be that the agreement would be amended or removed. 
42	The applicant also stated that extent of exchanges during the hearing about this matter were indicative that the agreement is itself yet another hurdle to overcome in my consideration of whether further subdivision is unlikely.
43	I accept that the section 173 is of some relevance, but I do not assign much weight to it, given there are means by which it could be amended or removed from the title to the land. Further, if the subject site was further subdivided beyond this two lot resubdivision, and if either the existing building or a new building was used separately from the dwelling at 128 Ruskin Street, then it is conceivable that the agreement might become redundant also. At the very least, it is conceivable that its existence and specific covenants would be taken into account with any such assessment.
44	The agreement’s existence is a function of the existing situation, is specific to the existing garage/outbuilding and was required by the permit that granted permission for that building. The agreement is not something that dictates what can or cannot be situated upon the land in a more general manner. It does not restrict subdivision and whilst it may have been entered into on for the reasons of restricting the use of the existing building, this does not, of itself, provide any limitation on considering further subdivision of the land, beyond what is now before me. I do not accept the submissions of the applicant that it is demonstrative of the suite of limitations or constraints, either individually or collectively, that would render further subdivision unlikely.
Physical and planning context
45	In relation to physical context, the applicant submitted that I should be guided by the following from 21 to 25 Nelson:
Consideration of a site’s physical context is always a relevant consideration as it is the physical setting that one applies the policy framework to. In this context, the physical context includes the lot’s size, the buildings and structures that occupy it, and the surrounding physical environment.
46	Following from this, the applicant submitted that further subdivision is unlikely having regard to the proposed lot sizes and narrow width of the lots in the context of the NRZ5 seeking larger lot sizes with generous landscaped front and side setbacks.
47	It was also submitted that the pattern of development in this part of Elwood is a single dwelling per lot. While lot sizes vary, lot sizes less than 400m2 are not part of the character of the surrounding area and that further subdivision of one or both lots would not respect the lot sizes or maintain generous front, side and rear setbacks.
48	The council submitted that there is a varied subdivision layout and lot sizes in the surrounding area. The council also provided a number of examples of development in the surrounding area, where lots have been further subdivided or where dwellings exist at the rear of other lots and where laneways have been used to provide sole access for dwellings. The applicant sought to distinguish these examples and place them either under different planning contexts or as much older development that would have been subject to very different planning considerations.
49	I am not persuaded that the surrounding character or the attributes of the subject site and the planning context mean that further subdivision is unlikely. However, this finding only relates to the proposed lot 1, which would have an area at the rear that could facilitate further subdivision.
50	The existing side and front setbacks of both lots would be maintained, consistent with what the NRZ5 seeks, as no development or demolition of the existing dwellings is likely, based on the heritage controls in place.
51	Whilst the applicant sought to distinguish other development in the surrounding area, the fact remains that there are examples of development that occupy lots smaller than the predominant lot size in the surrounding area and these form part of the overall character. There are also examples of dwellings that have sole access and front to a laneway – one such example is directly opposite the rear of the subject site. 
52	It appears that laneways in this area are formally named and at least, have street signs indicating the name of these lanes.
53	The existence of the rear garage, which is not insubstantial in size, establishes a built form outcome on the site that is not inconsistent with the pattern of development in the surrounding area, where many lots have outbuildings constructed at the rear with access from a laneway. Whether further subdivision was to separate this building or establish a lot where a different form of development was possible, the existence of the double storey structure at the rear means that from a character perspective, it is part of the urban fabric and this would mitigate, to an extent, any argument around built form not being part of the character at the rear of existing lots. 
54	To the extent a different form than the existing outbuilding might be contemplated, in my view, would largely be a matter of design detail which could be easily resolved in a laneway setting, even with heritage controls and policies, without causing any unacceptable outcomes. 
55	Whilst there is policy within the scheme that seeks the retention of large lots with generous front, side and rear setbacks, there are factors in this case that mitigate these considerations to a considerable degree. They include:
a.	the existence of built form at the rear of part of the subject site and on many other lots in the surrounding area;
b.	the presence of laneways; which also provide opportunities for lots to have sole access from; and
c.	the existence of a relatively large outbuilding at the rear of the subject site.
56	The absence of any specific references to lot layout and configuration in the statement of significance provides me with satisfaction that creating a new lot at the rear would not create an adverse heritage outcome, subject to detailed consideration at such a time. It would appear to me that creating ‘a line on a map’ around either the existing outbuilding or a newer but similarly configured building (and any associated private open space and other necessary features) would not be an outcome that would compromise any heritage policy.
57	The existence of a policy preference that any existing car parking associated with a single dwelling, should be retained with further subdivision does certainly go against the case that further subdivision is not unlikely, however, it is but one consideration in number that I must take into account in balancing all necessary considerations.
58	So whilst I find that the rear portion of lot 1 is not unlikely to be subdivided, I do not find that further subdivision of that part of the subject site (the front portion) that contains the existing dwellings is not unlikely. The heritage controls and policies in place, along with the statement of significance and the contributory status of the dwellings in the heritage review would themselves make further subdivision unlikely, as this would require the dwellings to be demolished. There was nothing put to me in the hearing by the council that suggested the dwellings are in a state that would warrant demolition and indeed, the council submitted it was only the rear of proposed lot 1 that would not be unlikely to be subdivided.
59	The application of the SBO1 to the subject site is perhaps somewhat demonstrative of the task before a decision maker for matters such as this, where not only is the decision maker attempting to predict what an outcome might look like, it is doing so in the absence of any detailed development proposal.
60	The SBO1 contains very little information regarding what it seeks to control, other than it being entitled ‘Melbourne Water Main Drain’. The permit application was referred to Melbourne Water but the response reveals nothing to indicate whether there are any flooding issues to be considered. This is, perhaps, not unusual, as the proposal is for resubdivision of existing lots and not otherwise creating any new lots or proposing any new buildings or works.
61	There was nothing put to me during the hearing that would indicate there are any specific issues relating to this overlay that might result in further subdivision or development being unlikely on the basis of flooding.
Conclusion
62	Whilst my findings above could be read as being dismissive of numerous grounds and submissions put to me by the applicant, my task is not a numerical one. Though several submissions were put to me, I find that some of them are of little weight in this case, such as the intentions of the owner and the existing section 173 agreement. A number of subjective submissions were put to me in the hearing. However, my task, as is planning in general, must go beyond the subjective and look at the merits in an objective manner against the relevant considerations.
63	Further, it is not the number of different submissions put to me, but rather, the merits of each of those. I have found that both individually and collectively, the submissions of the applicant do not persuade me that further subdivision is unlikely. 
64	For the reasons given above, the decision of the responsible authority is affirmed.  No changes are made to planning permit 227/2019. 

Joel Templar 
Member