Subdivision of Land in Two Zones

Edward Mahony
5 August 2021

Tania Cincotta and Edward Mahony of our office were recently engaged by a landowner whose permit application for a two lot subdivision was refused by Campaspe Shire Council on the grounds that it was prohibited under clause 64.03 of the planning scheme.

Clause 64.03 of the planning scheme states:

SUBDIVISION OF LAND IN MORE THAN ONE ZONE

If a provision of this scheme provides that a permit is required to subdivide land and the land is in more than one zone a permit may be granted even if one of the lots does not comply with the minimum lot size requirements of a zone.

Permit Requirement

A permit may be granted to create one lot smaller than specified in the scheme if all of the following are met:

• The lot to be subdivided is in more than one zone and cannot comply with the minimum lot area specified in the scheme.
• The proposed subdivision does not create lots where any lot extends into more than one zone.

This does not apply to any lots created for the following purposes:

• To comply with the requirements of the Urban Floodway Zone.
• To provide access to a road.
• The remainder of the proposed lots must comply with the minimum lot area specified in the scheme.

The proposal was to subdivide the subject site into 2 lots. Lot 1 was fully included within the Low Density Residential Zone and the balance was located partly within the Farming Zone (“FZ”) and partly within the LDRZ and contained an existing dwelling. The proposed plan of subdivision submitted with the application is extracted below:

The proposed subdivision raised issues  as to whether clause 64.03 applied to the application and whether the exemption in the FZ in relation to the creation of a lot for an existing dwelling applied.

On behalf of our client, we submitted that Clause 64.03 was not activated as neither of the proposed lots created were smaller than the minimum lot size of the zones.

Specifically, consideration was given to the larger lot which was within the FZ, which contains the following requirements in relation to subdivision:

Subdivision

A permit is required to subdivide land.

Each lot must be at least the area specified for the land in a schedule to this zone. If no area is specified, each lot must be at least 40 hectares.

A permit may be granted to create smaller lots if any of the following apply:

• The subdivision is to create a lot for an existing dwelling. The subdivision must be a two lot subdivision.
• The subdivision is the re-subdivision of existing lots and the number of lots is not increased.
• The subdivision is by a public authority or utility service provider to create a lot for a utility installation.

As relevant to our client’s application, we submitted that as the proposal created a lot for an existing dwelling and as it was a 2 lot subdivision, it fell within the ambit of the first dot point exemption above. However, the Council disagreed and submitted that the lot which was being created was the smaller of the two lots (not containing the dwelling) and that the ‘balance’ lot could not therefore be found to benefit from the exemption provision within the Farming Zone for a lot smaller than 40 hectares.

The Tribunal agreed with Best Hooper’s analysis on behalf of the applicant and concluded at paragraph 22:

It follows from the above that I find the 40 hectare minimum lot size requirement of the FZ2 does not apply to the proposal and that smaller lots are permissible in this instance, as the subdivision is a two lot subdivision to create a lot for an existing dwelling. Because of this, I find the proposed lots comply with the minimum lot size requirements of both the LDRZ and FZ2. As a result, clause 64.03 of the scheme does not apply.

Please feel free to contact our office should you have any questions or comments on the above decision, or if you need any assistance from a member of our Planning Law Team.