A recent VCAT matter, BMF Pty Ltd v Greater Geelong CC [2011], has thrown a spanner into the restrictions contained within numerous Schedules to Zones across Victoria. In the BMF case the Tribunal was asked to determine whether a schedule to a Low Density Residential Zone (LDRZ) that specified a minimum dimension for a lot was lawful.
The LDRZ Schedule in question specified the minimum subdivision lot requirements as follows:
1 hectare with the average area of lots in a subdivision being at least 1.5 hectares. For the purpose of calculating average area, all lots exceeding 3.0 hectares must be considered as 3.0 hectares (and the balance of a staged subdivision should be excluded). Each lot must also be capable of containing a rectangle of 0.8 hectares with minimum dimensions of 70 metres.(Emphasis added)
The Tribunal was essentially required to determine whether or not it was lawful for the Schedule to restrict minimum boundary dimensions (in this case a minimum dimension of 70m).
The Tribunal noted that the Schedule operates as a subordinate control to the Zone and can be used to provide optional additional provisions as permitted by the Zone.
In this instance the Zone includes the following at Clause 32.03-3 Subdivision
Each lot must be at least the area specified for the land in a schedule to this zone. Any area specified must be at least 0.4 hectare. If no area is specified, each lot must be at least 0.4 hectare.(Emphasis added)
The tribunal concluded that the Schedule has the ability to specify the minimum ‘area’ of a lot but not the minimum ‘dimensions’ of lot boundaries. To do so would exceed the scope afforded the Schedule by the higher level Zone control.
The Tribunal noted this ruling is likely to have implications throughout Victoria. Planning permit applicants are encouraged to carefully review Schedule requirements and confirm they do not go beyond the scope afforded them by higher level documents. This finding might allow previous unsuccessful subdivision applications to be reconsidered.
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