The Victorian Civil and Administrative Tribunal (VCAT) has clarified the interpretation of the provisions in all planning schemes in Victoria concerning the subdivision of land parcels which are in two planning zones.

In Irvine v Moyne Shire Council a proposed subdivision sought to facilitate a tourist redevelopment in south west Victoria.  The subdivision was challenged by objectors on the basis that it was unlawful by virtue of Clause 64.03 of the Planning Scheme, ‘Subdivision of Land in More than One Zone’.  Clause 64.03 provides an exemption whereby land which is in two planning zones which does not meet the minimum lot size requirements of those zones can be subdivided, but only subject to narrow conditions. 

Clause 64.03 is stated to apply where “one of the lots does not comply with the minimum lot size requirements of a zone”.

At issue was whether the clause applied to the relevant subdivision.  It was argued by objectors that the meaning of ‘minimum lot size requirements of a zone’ referred only to the lot sizes specified in the schedule to the zone.  The Council, represented by Harwood Andrews argued that the words should be read to include other exemptions in the primary zone document itself.  The Tribunal found that the latter applied and that a subdivision could satisfy the ‘minimum lot size requirements of a zone’ by meeting either the lot sizes in a Schedule or the exemptions in the primary zone control.

The decision has the effect of broadening the scope for subdivision of land to which two planning zones apply.

For more information please contact:

Greg Tobin
Principal
Harwood Andrews
T: 03 5225 5252
E: gtobin@harwoodandrews.com.au

Sophie McGuinness
Senior Associate
Harwood Andrews
T: 03 9611 0117
E: smcguinness@harwoodandrews.com.au