This case concerned the interpretation of Amendment C48, which is a Ministerial amendment which stops permits being granted for dwellings on lots less than 40ha in the Farming Zone or the creation of smaller lot subdivisions for an existing dwelling.

The facts of the case are that a planning permit application was lodged with the South Gippsland Shire Council for the re-subdivision of four lots into three. The site is located in the Farming Zone. One of the lots has an existing dwelling.

Before the introduction of Amendment C48, under the provisions of the Farming Zone in the South Gippsland Planning Scheme, a planning permit was required to subdivide land and each lot must be at least 40 hectares. However, pursuant to Clause 35.07-3, a permit could be granted to create a smaller lot if it was a re-subdivision of existing lots and the number of lots was not going to increase. This was regardless of whether there was an existing dwelling on one of the lots.

The Tribunal noted that ‘the effect of Amendment C48 is to introduce a specific control that prohibits or restricts the use or development of land in the Farming Zone beyond the controls that otherwise apply by virtue of the zone provisions in Clause 35.07’. Amendment C48, however, does not refer directly to the second exemption in clause 35.07-3, namely the re-subdivision of existing lots where the number of lots is not increased. The Tribunal concluded that ‘where there is no existing dwelling on any of the lots, the incorporated document does not prevent the creation of a smaller lot than 40 hectares where the second exemption in Clause 35.07-3 in being relied on’.

The Tribunal explained that in their view if there were to be no dwellings on the land then the re-subdivision would not be prevented by Amendment C48. However as there was an existed dwelling on one of the lots that was proposed to be re-subdivided, it came within the scope of Amendment C48. It did not matter that the number of lots would not increase. Thus, the Tribunal reaffirmed the Council's decision to refuse to grant a permit.

• The full decision is available on Austlii