A recent decision of the Tribunal, constituted by Deputy President Dwyer, has considered the proper meaning of the subdivision requirement in schedule 1 to the Green Wedge A Zone (GWAZ1) of the Yarra Ranges Planning Scheme (Scheme).

The decision of Kain v Yarra Ranges SC [2013] VCAT 1908 (Kain) has broad application because it answers two questions of law relating to the Tribunal's jurisdiction to declare a provision of a planning scheme invalid, and the proper interpretation of GWAZ1.

The Tribunal, in answering these questions of law, held that:

• The Tribunal does not have jurisdiction to declare that the provisions in the Schedule to the Green Wedge A Zone relating to subdivision are invalid. Even if the Tribunal has jurisdiction under its broad power in s 124 of the Victorian Civil and Administrative Tribunal Act 1998, it would not ordinarily be appropriate to exercise discretion to make a declaration of invalidity in relation to planning scheme provision of general application.
• In properly interpreting and applying the Schedule to the Green Wedge A Zone, the Tribunal should endeavour to construe the Schedule in such a way to resolve any apparent inconsistency with the empowering provision (and so as not to exceed that power) under which the Schedule is made.
• The proper interpretation of the requirements relating to the subdivision of land in the Schedule to the Green Wedge A Zone is that there is a minimum lot size of 1 hectare allowed subject to an overall average lot size of 2 hectares. The average lot size requirement is not a separate stand-alone requirement that might arguably exceed the power under the zone control but a qualification to the minimum lot size requirement. It forms part of the control for the minimum subdivision area for the land authorised by the zone control.

Statutory provisions

Clause 35.05-3 provided that:

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 8 hectares.

The table in GWAZ1, with respect to 'minimum subdivision area (hectares)' stated:

Except as provided in the schedule to Clause 53, a minimum lot size of 1 hectare with an average lot yield not exceeding lot to each 2 hectares of site area and a maximum lot size of 3 hectares.

The subdivision before the Tribunal satisfied the minimum lot size of '1 hectare' but did not meet the average lot yield of '1 lot to each 2 hectares of site area'.

Background

The questions arising in Kain had been previously considered in a number of other cases relating to the Scheme and the Greater Geelong Planning Scheme. These decisions were BMF Pty Limited v Greater Geelong CC [2011] VCAT 1666 (BMF), Mooney v Yarra Ranges SC [2011] VCAT 1866 (Mooney), Kelberg v Greater Geelong CC [2012] VCAT 1149 (Kelberg), and Davidson v Yarra Ranges SC [2013] VCAT 1966 (Davidson).

In BMF, Mooney and Davidson, the Tribunal had taken a relatively consistent approach regarding the validity of similar schedules and their interpretation. Kelberg stood alone as the only decision that supported the Council's case that the references to the average lot yield and maximum lot size qualified the minimum lot size specified in the schedule.

The Tribunal does not have jurisdiction to declare a provision of a planning scheme invalid

Deputy President Dwyer disagreed with the Tribunal's decisions in BMF, Mooney and Davidson and held that the Tribunal did not have power to declare a provision of a planning scheme invalid. He considered that the task for the Tribunal was to properly construe the provisions of a planning scheme as it found them. In cases where there was a clear inconsistency between provisions, the Tribunal should read down a provision rather than make a declaration as to its validity. The Tribunal considered that such an approach was consistent with section 7(4) of the Planning and Environment Act 1987 (Act) and concluded that:

In the case of a direct and seemingly irreconcilable inconsistency, an offending subordinate provision could thus be read down to constrain its operative effect, rather than resorting to a formal declaration about its validity.

In our opinion, this finding was consistent with a long line of decisions supporting the position that the Tribunal does not have jurisdiction to declare a provision of a planning scheme invalid.

Interpreting schedule 1 to the Green Wedge A Zone

The Tribunal considered that section 7(4) of the Act and the purposive approach to statutory interpretation should be applied to interpret schedule 1.

The Tribunal held that the average lot size requirement was not a separate, stand-alone requirement but was a qualification or refinement of the minimum lot size. The use of the word 'with' in GWAZ1 meant that the average lot size was part of the overall control on the minimum subdivision area and was intended to qualify the minimum lot size so as to achieve an appropriate minimum subdivision area for the land being subdivided as a whole. There was nothing in the Scheme or the zone control to suggest that such a provision was inappropriate or would have exceeded the power of the zone control.

What this decision means for you

Kain is a significant decision. We hope Kain will be accepted as resolving the inconsistencies arising from the earlier decisions.

The decision is one of considerable importance for both statutory and strategic planners.

For strategic planners, the decision is a timely reminder that the:

• drafting of a schedule needs to be undertaken with considerable care having regard to the scope of the enabling provision (which is usually found in the zone or overlay)
• ability to include requirements in a schedule to a zone (or an overlay) is not unlimited.

For statutory planners, the decision is an important reminder:

• that the Tribunal does not have jurisdiction to make declarations about the validity of a provision in a planning scheme
• of the need to carefully read and construe the provisions of a scheme
• that if further challenges are launched against similar provisions, councils should generally ensure that the question of law is drafted carefully and that a legal member is asked to determine such a question.

If you'd like more information about this matter, please contact a member of the Planning & Environment Team.