In recent times we have published a number of Tit bits relating to issues associated with subdividing land that is affected by multiple zones with differing minimum lot size requirements.
In Leigh v Greater Geelong CC (2008)VCAT 1335 the tribunal aimed to provide an authoritative legal position and resolve the confusion surrounding conflicting decisions from previous VCAT cases. It concluded;
34… where land is in two (or more) zones, the correct interpretation of the planning scheme is that if the land is subdivided, each lot size in a zone must be at least the minimum lot size specified in the planning scheme for that zone. If a lot straddles the zone boundary, the lot must meet the minimum lot size for each zone.
As a result of this decision a Ministerial Amendment to the Victorian Planning Provisions (VC60) was introduced to provide clear guidance on the issue. The Advisory Note published with the amendment included the following explanatory diagram.
This example illustrates a lot in two zones near the edge of a township. Half the land is in the Township Zone (TZ) where lot sizes may be smaller i.e. there is no minimum lot size. The remainder of the land is in a Farming Zone (FZ) which seeks to avoid smaller lots in rural land by requiring a minimum lot size of 40 hectares.
In this example the land is 25 hectares in total and cannot comply with the minimum subdivision requirement of the Farming Zone. Before the introduction of Clause 64.03 subdivision of the land would have been prohibited. The new provisions allow an application for more lots in the TZ but not allow any new lots in the FZ zone.
In a recent VCAT case, Bonella v Casey CC (2009) VCAT 817,the tribunal was obligated to consider a further question; how to apply the principles outlined in Amendment VC60 in a subdivision that proposes a lot to extend beyond the zone boundary in order to achieve the minimum lot size specified.
In the Bonella case the application was for a two lot subdivision on land which was governed by a Low Density Residential Zone (LDRZ) and an Urban Floodway Zone (UFZ). Lot 2 was proposed to have an overall area of 1.066ha which exceeded the 0.4ha requirement in the LDRZ but 7,550m2 of that lot size was situated in the UFZ resulting only in 3,011m2 falling into the LDRZ.
Council refused the application on the grounds that lot 2 had to have an overall area of 0.4ha and the entire lot had to be located in the LDRZ otherwise the lot size would fall short of the required 0.4ha and would be contravening the planning scheme.
The following illustration depicts the proposed subdivision in the Bonella Case.
The Tribunal took into consideration Clause 32.03-3 (LDRZ provision) when making its decision and recognized that the lot must indeed be at least 0.4ha but it does not stipulate that all of the area has to be in the LDRZ.
The tribunal also took into consideration Clause 37.03-7 of the Planning Scheme relating to The Urban Floodway Zone subdivision provisions. Although this clause also requires planning permission for the subdivision of land, it does not however, impose a minimum lot size. It imposes other constraints (most of which are not relevant to this case) except for the one that provides that a permit may only be granted to subdivide land in the Urban Floodway zone if:
25 The subdivision does not create any new lots, which are entirely within this zone.
Meaning that; a new lot can be created in the UFZ providing that it incorporates land contained in another zone, as it is in the present case.
The tribunal considered that the view of the Responsible Authority would impose unnecessary further restrictions which were not actually specified in Clause 32.02-3 and therefore deduced that the proposal was not prohibited.
It appears to Clause:1 that a similar position is likely to be taken on subdivision applications when land is partially contained within a R1Z, R2Z and R3Z where no minimum lot sizes are mandated. It would appear if an application was lodged to subdivide land contained (for example) in both a LDRZ and a R1Z the proposed lot(s) could encroach into the R1Z in order to meet the LDRZ minimum lot requirements.
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Information contained in this publication should be considered as a reference only and is not a substitute for professional advice. No liability will be accepted for any loss incurred as a result of relying on the information contained in this publication. Seek professional advice in specific circumstances.
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