VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment DIVISION
planning and environment LIST	vcat reference No. P661/2020
Permit Application no. 95/2019/P	
CATCHWORDS	
Section 79 of the Planning and Environment Act 1987; Frankston Planning Scheme; Subdivision of land of an existing development	

APPLICANT	Katina Fronimakis & Nicholas Hadjianjeli	
responsible authority	Frankston City Council	
Referral Authorities	South East Water Corporation, APA VTS (Gasnet Australia), Zinfra Pty Ltd, Melbourne Water	
SUBJECT LAND	5 and 5a Bainbridge Avenue
SEAFORD  VIC  3198	
WHERE HELD	Melbourne	
BEFORE	Christina Fong, Member	
HEARING TYPE	Hearing	
DATE OF HEARING	25 September 2020	
DATE OF ORDER	8 October 2020	
CITATION	Fronimakis v Frankston CC [2020] VCAT 1108 	

Order
Permit granted
1	In application P661/2020 the decision of the responsible authority is set aside.
2	In planning permit application 95/2019/P a permit is granted and directed to be issued for the land at 5 and 5a Bainbridge Avenue, Seaford in accordance with the endorsed plans and the conditions set out in Appendix A.  The permit allows:
•	Subdivision of land
3	This matter was conducted ‘on the papers’, pursuant to section 100(2) of the Victorian Civil and Administrative Tribunal Act 1998.

Christina Fong
Member			

Appearances
For applicant	John Cicero, Principal, Best Hooper.	
For responsible authority	Peter McWhinney, town planner, City of Frankston	

Information
Description of proposal	Subdivision of land containing eight one-bedroom dwellings into eight lots (including one car space for each dwelling).Common property of the subdivision relates to accessways which includes the visitor car space, and a strip of land along the front boundary.	
Nature of proceeding	Application under section 79 of the Planning and Environment Act 1987 – to review the failure to grant a permit within the prescribed time.	
Planning scheme	Frankston Planning Scheme	
Zone and overlays	General Residential Zone 1 and no overlay.	
Permit requirements	Clause 32.08-3	
Land description	The land is a 1338 square metres site developed for eight single storey one-bedroom dwellings. Each dwelling has been allocated one car space, with one visitor car space.	

Reasons

1	This is a review against the failure of the responsible authority to issue a permit to subdivide the site into eight lots. Each lot contains an existing single bedroom single storey dwelling and a car space. This development is in accordance with a permit issued at the direction of the Tribunal in 2010.
2	This permit is subject to a number of conditions. Condition 1 sets out the modifications required of the design of the development. Notably, condition 2 requires a section 173 Agreement to be entered into with the responsible authority, which requires:
2.	Before the development commences, the owners of the land must enter into an agreement with the Responsible Authority made pursuant to Section 173 of the Planning and Environment Act 1987 and must make application to the Registrar of Titles to have the agreement registered on the title to the land under Section 181 of the Act, which provides that:
a)	Only persons who are at least 55 years of age will be allowed to reside that the subject land.
b)	Where a couple (whether married or not) intend to take up residence at the subject land, the couple will not be allowed to take residence unless at least one of the couple is at least 55 years of age; and
c)	Other than when b) applies, the consent of the Council must be obtained prior to authorising any person less than 55 years of age to take up residence at the subject land for the purpose of being a caretaker/,manager or other aged care related service provider.
What are the issues
3	The issues of this review are whether there are merits to the proposed subdivision, and the original intention to provide community housing for persons over 55 years of age under a Section 173 agreement referred to above.
Proposed subdivision
4	The proposed subdivision is to subdivide the land into eight lots (most of the lots have two parts, comprising the land for the dwelling and a car space) to reflect an existing development on the land. For subdivision of land for an existing development, clause 32.08-3 states: 

An application to subdivide land, other than an application to subdivide land into lots each containing an existing dwelling or car parking space, must meet the requirements of Clause 56 and…. 
(Underlining my emphasis)
5	Clearly Clause 56 does not apply. The proposal is, rather, a straight forward assessment to ensure that the subdivision accords with the development as approved, which is for eight single storey single bedroom dwelling, each with an open car space. The only common property in the subdivision is the driveway, pedestrian accessways, the visitor car space towards the front of the land, and a strip of 1.35 metres along the street frontage. This alignment is generally consistent with the footprint of the approved design and as constructed, except for the front setback of a fence specified as 2 metres from the street frontage required by a permit condition.
6	As for the design of the development in terms of neighbourhood character, density or liveability, they have been determined when the Tribunal considered the application in 2010. As it stands, this development has become part of the fabric and existing character of the area.
7	Council raised several technical issues with the subdivision: part of the existing drains/soak pit falling within one of the lots, disabled car spaces allocated to one of the lots instead of (both) being in common property, and possible enclosure of part of the front setback area.
8	Regarding drainage, Mr. Cicero’s submission is that the drains and pits are located in common property except Pit 4. I accept Mr. Cicero’s submission that permission to access Pit 4 for the purpose of maintenance can be obtained from the owner of the lot concerned, and not a reason to refuse the subdivision.
9	Regarding allocation of disabled car space to individual dwellings, I accept Mr. Cicero’s submission that car parking requirement of planning permit is to meet the requirements of the planning scheme where there is no specific requirement for disabled car spaces for dwellings. There are three disabled car spaces in the development. One of the spaces has become part of Lot 1 (one of the dwellings facing the street). The other two have become part of Lot 2 and Lot 3, the two dwellings located at the rear of the land. 
10	Instead of having communal control by an owners corporation if these spaces are located in a common property, the proposed subdivision will result in three of the dwellings having a disabled space. The disabled spaces are not lost to the development, except that in the process of change of ownership, those who desire a disabled space can purchase the lot with such a space.
11	Regarding the potential of enclosing the front setback areas of the two front dwellings (common property applying to the front 1.35 metres), my review of the permit issued for the development reveals that Permit condition 1i) requires the front fence setback to be a minimum of 2 metres from the street frontage.
12	This fence, I conclude, delineates the front common property and the balance of the setback area under the control of the two lots of the two dwellings facing the street.
13	To allow the common property along the front setback area to be reduced is contrary to the development as approved. There will be a permit condition requiring the alignment of the common property along the street frontage to comply with Condition 1i) of the permit.
14	Overall, subject to a minor adjustment of the common property along the street frontage, I can see no reason to refuse the proposed subdivision.
The original intent of the development
15	Council explained the original intent of the development as to provide accommodation of persons over 55 years of age. It also submits that the development has been leased to Haven Homes to provide community accommodation to assist older persons with needs and who require ongoing support to live independently in public or low cost housing. This permit contains a condition requiring a Section 173 Agreement under the Planning and Environment Act 1987, which requires the following:
a)	Only persons who are at least 55 years of age will be allowed to reside that the subject land.
b)	Where a couple (whether married or not) intend to take up residence at the subject land, the couple will not be allowed to take up residence unless at least one of the couple is at least 55 years of age; and
c)	Other than where b) applies, the consent of the Council must be obtained prior to authorising any person less than 55 years of age to take up residence at the subject land for the purpose of being a caretaker/manager or other aged care related service provider.
16	Council’s concern is that the subdivision of the land would increase the potential of the development being sold, which would in turn make it more difficult for a charitable institution to maintain the number of units it might want, that there is the possibility that it is more attractive financially for the owners to sell all the units individually, which would in turn lead to greater cost and less cohesiveness in the management and operation of this community housing project.
17	Council also argues that the development was put to council at the time on this particular basis with a Section 173 agreement as guarantee to provide this community housing, and was a tacit argument to overlook some of the design failing in meeting some of the ResCode standards.
18	Council is also concerned that the proposed subdivision will make enforcement of the Section 173 Agreement harder, as that will be through multiple parties and individual owners.
19	The applicant’s response to the section 173 agreement is that:
•	This application is not to review or contemplate amendment or removal of the agreement;
•	council has attempted to elevate the importance of the agreement and introduce it as a “quasi” planning control or policy, which is incorrect at law and policy;
•	this agreement will continue to have effect even if the subdivision is allowed; and
•	council has previously approved subdivision of the land as a ‘straight forward’ proposal with reference to the agreement.
20	The proposal is to subdivide the existing development into eight lots, reflecting the eight dwellings constructed on the land. It does not nullify any of the permit conditions imposed on the development. Although it may be true that the Responsible Authority may be dealing with multiple parties after the subdivision and subsequent disposal of the lots to separate entities, simply because the land is no longer under one ownership, the Section 173 agreement is still valid, enforceable, and relevant in the continued occupation of the dwellings according to the agreement. Further, this agreement stands outside this planning permit for subdivision. It cannot be a reason to refuse this application.
21	I gather from council that there is a request to remove the agreement. Potentially, the original intention of providing community housing for a particular sector of aging residents may be seen to be eroded. That request is not part of this applicant and cannot be handled as part of this subdivision before me.
conclusion
22	For the above reasons, council’s decision is set aside and a permit issued subject to the conditions stated in the appendix, which is a modification of council’s draft conditions after considering the applicant’s comments and deem necessary.

Christina Fong
Member			

Appendix A – Permit Conditions

Permit Application No:	95/2019/P	
Land:	5 and 5a Bainbridge Avenue
SEAFORD  VIC  3198	

What the permit allows	
In accordance with the endorsed plans:
•	Subdivision of land	

Conditions 
Amended Plans 
1	Before the Plan of Subdivision is certified, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority.  When approved, the plans will be endorsed and will then form part of the permit.  The plans must be drawn to scale with dimensions and three copies must be provided.  The plans must be generally in accordance with the plans submitted with the application, Plan of Subdivision PS828656E Version 2, but modified to show:
(a)	Retention of the visitor car space in common ownership; and
(b)	Unless prior approval is obtained from the Responsible Authority, the common property boundary within the front setback increased to 2 metres and realigned in accordance with the development approved by permit 416/2008/P. 
No alteration and Changes
2	The subdivision as shown on the endorsed plans must not be altered without the prior written consent of the Responsible Authority.
Public Open Space Contribution
3	The owner must pay to the Responsible Authority a sum equivalent to five per cent of the site value of all land in the subdivision.  This payment must be made before a Statement of Compliance is issued. 
Engineering Services
4	Where the development involves work on or access to Council controlled land including roads, reserves and right of way, the owner, operator and their agents under this permit must at all times take adequate precautions to maintain works to the highest public safety standards, to the satisfaction of the Responsible Authority.
Precautions must include, appropriate signage to AS 1743 Road Works Signing Code of Practice, the provision of adequate barricading of works, including trenches of Service Authorities and any other road openings, sufficient to ensure public safety.
All relevant permits must be obtained from Council for works within the existing road reserves, in addition to the planning permit. 
5	Prior to the issue of a Statement of Compliance provision must be made to demonstrate the shared responsibility for the on-going maintenance and repair of the approved drainage detention system required by Condition 9 of Planning Permit 416/2008/P, particularly for the pit outside Common Property.  
General
6	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.
7	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.
Expiry of Permit
8	This permit will expire if one of the following circumstances applies:-
(a)	The subdivision is not certified within two (2) years of the date of this permit;
(b)	The subdivision is not registered within five (5) years of the date of certification.
The Responsible Authority may extend the periods referred to in (a) if a request is made in writing before permit expiry or within six (6) months of the permit expiry date. 

– End of conditions -