L shape, frontage 41.17 metres, area 1884.7 square metres

2. A cash contribution equal to 5% of the value of the land must be paid to Council for open space. This payment must be made before the issue of a statement of compliance.

- Not in accordance with the appropriate planning principles and criteria including the criteria set out in Section 18(1A) Subdivision Act 1988.

3. The proposed subdivision will not create a need for more open space having regard to all the criteria set out in Section 18 of the Subdivision Act 1988.

4. Alternatively, the proposed subdivision will not create an additional need for more open space such as would justify the requirement for a payment of 5% of the site value of all the land in the subdivision, but rather some lesser amount.

5. The proposed subdivision is a subdivision of land including long standing existing buildings used for industrial or commercial purposes and now proposed to be used for residential purposes.

6. The condition should be deleted or alternatively modified.

Ms. J. Higgins, Statutory Planner, for the Responsible Authority on Day 1, and Mr. S. Stewart, Solicitor of Maddock Lonie & Chisholm Lawyers, for the Responsible Authority on Day 2.

Mr. T. Callander, Solicitor of Rigby Cooke Lawyers, for the Applicant for Review/Permit Holder.

Written submissions and other documents tendered by the parties have been placed on the Tribunal file.

The Tribunal inspected the subject site in the company of a representative of the Estate Agent for the property, for the Applicant for Review/Permit Holder, and a Solicitor of Maddock Lonie & Chisholm, for the Responsible Authority.

The Permit Application was made in the name of 765 Burwood Pty Ltd and the appeal was lodged in the name of 765 Burwood Road Pty Ltd. The correct name is 765 Burwood Pty Ltd, and Mr. Callander made application on Day 1 for the name of the Applicant for Review to be amended to 765 Burwood Pty Ltd. There was no objection and I made the requested amendment.

Directions dated 27 May 1998 and 8 September 1998, which were accompanied by Reasons, have previously been made. Directions and Reasons not quoted below will be relied on to the extent that they are relevant.

"On Day 1 the parties consented to me deciding questions of law even though I am not legally qualified.

Prior to the Tribunal considering and determining this matter Mr. Callander, for the Applicant for Review/Permit Holder, by letter dated 24 March 1998 which was received by facsimile on that day and by mail on 25 March 1998, advised inter alia as follows:

"We wish to draw to Mr Sharkey's attention a very recent decision of the Tribunal in appeal no. 1997/73042, Domain Hill Properties Pty Ltd v City of Port Phillip_, decision dated 18 March 1998 a copy of which is enclosed._

We accordingly request the Tribunal to consider this further point of law and adopt generally the submissions put in the Domain Hill Properties Pty Ltd appeal. The relevant facts have already been put to the Tribunal at the substantive hearing of the appeal on 27 January 1998, including the facts as to the time of the construction of the building, and its previous commercial/industrial use."

Maddock Lonie & Chisholm responded by facsimile on 25 March 1998 and 26 March 1998, and requested that the matter be called on for further hearing. The matter was listed for further hearing 21 April 1998, and Mr. Callander for the Applicant for Review/Permit Holder and Mr. Stewart for the Responsible Authority made submissions on the point raised by Mr. Callander.

I subsequently became aware that the Appellant/Applicant in Appeal No. 1997/73402 Domain Hill Properties Pty Ltd v City of Port Phillip_, had lodged an appeal "against the whole of the decision" in the Supreme Court._

I believed that I was constrained in considering and determining the matter until the outcome of the appeal to the Supreme Court was known. The Direction dated 27 May 1998 and the accompanying reasons refer. The Judgement is now to hand, and a copy is attached. I will direct that the parties have leave to make further written submissions. Liberty to apply will be granted and costs will be reserved."

"The Notice of Appeal was dated 9 April 1998, ie. prior to Day 2 on 21 April 1998. Unfortunately neither party drew my attention to the Notice of Appeal, and I accept that they were obviously not aware of it."

1. The Applicant for Review/Permit Holder file with the Registrar of the Planning List of the Tribunal a written submission on this matter, having regard to the Judgement in Port Phillip City Council v Domain Properties Pty Ltd_, and provide a copy of that written submission to the Responsible Authority, within 14 days of this Direction._

2. The Responsible Authority file with the Registrar a written submission in response, and provide a copy to the Applicant for Review/Permit Holder, within a further 14 days.

Written submissions were made as directed, and neither party requested that the matter be called on for further hearing which would have been possible pursuant to Direction 3.

Clause 7-1.4, Public Open Space, of the State Section of the Planning Scheme, reads:

"The following classes of subdivision are exempt from a public open space requirement, in accordance with Section 18(8) of the Subdivision Act 1988.

The subdivision of a residential building provided each lot contains part of the building. The building must have been constructed before 30 October 1989 or a planning permit must have been issued for the building before that date.

The subdivision of a commercial or industrial building provided each lot contains part of the building."

The judgement in Port Phillip City Council v Domain Hill Properties Pty Ltd (Decision No. 5399 of 1998 of the Supreme Court, Byrne J, dated 14 August 1998, read in part:

"As a matter of ordinary interpretation of the document, the word "building" in the opening words of the second sentence must refer to the building in the first sentence, that is a building which has been or is being constructed as a residential building. In order to satisfy the requirements of this sentence, it is this construction work which must be completed before the commencement date or a planning permit for this construction must have issued before that date. That the word "construction" covers work by way of major alteration to existing buildings is apparent from the definition of "construct" in the Planning and Environment Act 1987 s.3 which is imported into this part of the planning scheme by cl 2-1.1."

Whilst it was common ground that commercial or industrial construction took place prior to 30 October 1989, construction for residential purposes clearly took place well after that date, and the subdivision would not be exempt from a public open space requirement pursuant to Class 1.

The supplementary submission for the Responsible Authority read in part:

"16. It follows from this that the building is properly one classified as a residential one and accordingly the class 2 exemption is not applicable. It is submitted that this is consistent with paragraph 16 of His Honour's decision and the proper interpretation of clause 7-1.4 of the Planning Scheme because to adopt the applicant's submission theoretically means that:

16.1 a permit to convert a commercial building to a residential purpose could be obtained,

16.3 a subdivision permit obtained which would enjoy the benefit of the class 2 exemption, and

16.4 the lots then used for residential purposes,

thus avoiding the second sentence of the class 1 exemption. It is submitted that such a conclusion does not follow, and should not be tacitly endorsed by the Tribunal."

I accept this submission, and I consider that exemption is not available pursuant to Class 2.

Ms. Higgins, in her written submission for the Responsible Authority, described the site history as follows:

"Council records indicate that the site was originally developed and used as a motor vehicle wreckers yard and a detached house. Since then planning permits have been issued enabling the land to be used variously as an office and store, office and warehouse and auction rooms with office and warehousing. The earlier dwelling on the site appears to have been demolished in the 1970s under one of the aforementioned planning permits. More recently, the land has been used exclusively for warehousing for a chemical company although the buildings remained vacant for some time prior to commencement of the current refurbishment.

The buildings on the site are currently vacant and works appear to be nearing completion in accordance with Planning Permit No. BOR 97/400 (issued 6 August 1997), granted for the construction of alterations to the existing building and use for the purpose of seventeen (17) dwellings (attached houses). On 19 June 1997, application was made to subdivide the land into seventeen lots, corresponding with the development plan issued under Permit No. BOR 97/400."

Ms. Higgins described the appeal site and the proposal as follows:

The land is located on the north side of Burwood Road, Hawthorn, between Albert Street and the railway reservation. The site has a total area of 2672 square metres and supports a former warehouse which occupies an area of 1884.7 square metres. The building is situated on the rear of the rear boundary adjacent to the Right of Way and partly along the west boundary adjacent to a nursing home. The land falls uniformly from north-east to south-west and is an "L" shaped allotment.

Works have commenced on the residential conversion of the site.

Approval was sought for a seventeen lot subdivision consistent with the approved development plans forming part of Permit No. BOR 97/400. The car parking spaces have been made part lots with the lots containing the dwellings. Units 1,2,3,4,5,7 and 16 will be provided with two (2) car spaces each. The remainder of the units will be provided with a single car space each.

The floor areas of the apartments will predominantly be 89 square metres, but will range in size up to 123 square metres for apartment 17 which comprises two levels. Dwelling 1 provides two bedrooms with all the other dwellings containing a single bedroom and a study. It is noted that the study in each is to be provided with a wardrobe to enable the dwellings to be converted into two bedroom residences if required by future residents.

Each dwelling is provided with a ground level courtyard at the rear for open space. Apartments 3-5 provide an area of approximately 12-13 square metres. Apartments 6-16 will have small open spaces of approximately 9 square metres. Apartment 17 provides a total of 8.5 square metres at the upper floor balcony. Dwellings I and 2 which front Burwood Road have gardens in the frontage of 1 17 square metres and 103 square metres respectively.

The driveway and pedestrian walkway areas will comprise the common property with no communal open space allocated for the site."

Ms. Higgins described the surrounding and nearby land as follows:

The area is predominantly residential in character with commercial and industrial uses located along Burwood and nearby Camberwell Roads. No dominant character emerges in terms of residential development with the area displaying a mix of housing types and styles. There are, however many examples of multi-storey apartment buildings located in the immediate locality.

A Right of Way (ROW) providing vehicle access from Albert Street abuts the north (rear) boundary of the site. Single and double storey terrace houses addressing Lilydale Grove are situated further to the north, beyond the ROW.

A pedestrian walkway connecting Lilydale Grove and Burwood Road abuts a portion of the east boundary and continues southwards alongside a pair of single storey dwellings, also abutting the eastern boundary of the subject site. A nursing home is situated to the west with a car park and commercial establishments located to the south, on the opposite side of Burwood Road."

The Residential C Zone is the subject of Clause 118 of the Local Section of the Boroondara Planning Scheme, and a permit was required for subdivision pursuant to Clause 118-2.

* the City of Boroondara Open Space Strategy (adopted in September 1996), and

* the Interim Policy for Public Open Contributions required pursuant to Section 18 of the Subdivision Act 1988.

"Prior to the adoption of the Open Space Strategy, Council adopted an Interim Policy for Public Open Space Contributions pursuant to Section 18 of the Subdivision Act. The Policy is applied consistently and, given the adoption of the Open Space Strategy, is currently being reviewed.

The Policy essentially adopts the sliding scale provided for under the Victorian Code for Residential Development- Multi Dwellings, otherwise known as VicCode2. VicCode2 stated that the sliding scale for public open space contributions for small developments are principally derived from the likely number of residents and reflects the additional load that may be put on existing open space."

The following sections of the Subdivision Act 1988 were referred to in submissions at the hearing and in supplementary submissions:

18. Council may require public open space

20. What must the Council do with public open space?

"A part of the assessment and determination of the subdivision application Council had regard to the characteristics of the locality, the density of the approved development, the likely population density, the location and characteristics of nearby open space areas, the Interim Policy for Public Open Space contributions and the Open space Strategy. As a result of this assessment it was (and is) considered that a public open space contribution equivalent to 5% of the site value is appropriate and justifiable in this instance."

Ms Higgins discussed the appeal condition 2 under each of the headings set out in Section 18(1A) of the Subdivision Act and concluded:

"In conclusion, the recycling of this former industrial site for multi-dwellings will result in significant changes in the use and occupation of the land. The site will support a high population and dwelling density when compared with the balance of the municipality and the private open space on the site is particularly minimal and reliant on outside sources. In addition, this site is located within the most densely populated region of the municipality which also happens to be the area identified as being the area with a low provision of open space when compared with the balance of the City.

The existing open space network is likely to be intensively used due to the high number of medium-high density residential developments in the area (with their corresponding limited private open space provision) and the high proportion of persons in age groups which have been identified as being high open space users.

The adopted Open Space Strategy identifies clear and justifiable strategies and actions to enhance the open space assets of the municipality. Selected strategies and action will directly affect public open space in proximity to the subject land and in so doing provide a direct and tangible benefit to the occupants of the dwellings on the land.

The likelihood of residents of the development seeking the use of public open space is strongly supported by the limited amount of open space to be provided on the site itself

Given the factors outlined in this submission, a cash public open space contribution of 5% is indeed justified.

It is therefore respectfully requested that the Tribunal disallow the appeal and direct that Condition 2 be retained and continue to form part of Planning Permit No. BOR 97/527."

Mr. Callander, in his written submission for the Appellant/Applicant, said that the appeal site is amply served by nearby open space reserves. He said that Section 18(1) of the Act provides for "a percentage set by the Council not exceeding 5 per cent", and there is a discretion as to the percentage to be set. Mr. Callander said:

"Thus the Council has a discretion as to the percentage to be set. It is now trite law that the Council cannot arbitrarily demand a full 5 % but must exercise its discretion having regard to the circumstances of the case. Whilst Section 18 does not expressly set out the factors which a Council should consider in exercising its discretion as to the relevant percentage, it is submitted that the matters to which Council should have regard will include:

- those same factors which are set out in Section 18 (1A) of the Subdivision Act 1988 relating to whether there will be a need for more open space;

Section 18(1A) states that the Council may only make a public open space requirement if it considers that, as a result of the subdivision, there will be a need for more open space. It then sets out 6 matters to which regard must be had.

However it is firstly important to note that Council is not entitled to make a public open space requirement simply because it wishes to improve existing open space or even if the proposed subdivision will result in a need to improve existing open space. The Council must consider that there will be a need for more open space for a requirement to be made."

Mr. Callander also argued that the criteria of need, equity, accountability and nexus as set out in Eddie Barron Constructions Pty Ltd v Shire of Pakenham

6 AATR 10 should be followed. Mr. Callander said that there would not be a need for more open space as a result of the proposal, and said:

"As to the likelihood that existing open space will be more intensively used after than before the subdivision, it is submitted that, having regard to the small increase in "people" use, and the size of the 3 reasonably located reserves, and particularly the Fritsch Holzer Reserve, the increase of use of those open spaces is insignificant".

Mr. Callander said that alternatively the open space contribution should be less than 5 per cent, and cited appeals where lesser percentages were imposed. Mr. Callander concluded:

"For these reasons the Tribunal is requested to hold that:

(a) there is no need for any additional open space and therefore condition 10 (sic) should be struck out;

(b) Alternatively, if the Tribunal holds that there is a need for open space, that the Tribunal determine the percentage of site value to be contributed as no more than 1%, and amend condition 10 (sic) accordingly;

(c) Alternatively, if the Tribunal is of the view that a higher percentage (but being less than 5 %, should apply, to determine that percentage and amend condition 10 (sic) accordingly)."

The parties consented to me deciding questions of law even though I am not legally qualified pursuant to Section 47(1)(c)(i) of the Administrative Appeals Tribunal Act 1984.

I directed that the Responsible Authority could make a supplementary submission on the legal points within 21 days, and the Appellant/Applicant could make a supplementary submission in response within a further 21 days.

Maddock Lonie & Chisholm Lawyers made a supplementary submission on behalf of the Responsible Authority, and Mr Callander made a supplementary submission for the Appellant/Applicant.

Can an open space contribution be required for improvement of existing open space?

The supplementary submission for the Responsible Authority said:

"As part of his submission, Mr Callander for the applicant stated:

... Council is not entitled to make public open space requirement simply because it wishes to improve existing public open space, even if the proposed subdivision will result in a need to improve existing open space. The Council must consider that there will be a need for more open space.

The above submission is wrong in law and misdirects the Tribunal.

It is submitted that a contribution for open space can be required for improvement of existing open space, and not just for the immediate acquisition of further land for public open space."

The supplementary submission quoted Section 18(1A) and Section 20(2) of the Subdivision Act and said:

"The interpretation and application of this section has been considered on several occasions by the Tribunal. Due to the considerations which must be made under this section, most of those decisions are distinguishable on their facts. Indeed, it is also important to consider the other sections in Part 3 of the Act which concern open space contributions in interpreting the section and considering the former decisions of the Tribunal.

"What section 20(2) of the Act demonstrates is that any payment received under section 18 of the Act, inter alia, must be used for the stated purposes. Those purposes expressly include the improvement of existing or indeed proposed, public open space. As such, the intention of the legislature is clearly that any monies raised by way of a public open space contribution need not be applied only to acquire new public open space, but may also be used to improve existing open space. This, indeed, has been a practice of Councils for many years.

It is submitted that the proper interpretation of section 18(1A) of the Act is as follows:

the Responsible Authority must, after considering the required matters, consider that as a result of the subdivision there will be a need for more open space; and

that having reached that conclusion, the Responsible Authority can require an open space contribution regardless of whether it intends to acquire land immediately or not.

This is because the Responsible Authority is not required to acquire more open space by the Act, that is merely one option open to the Responsible Authority under section 20(2) of the Act. What the Responsible Authority must do is consider that as a result of the subdivision under assessment there will be a need for more open space. How the Responsible Authority meets that need is a matter for the Responsible Authority which must use the contributions obtained as it sees appropriate.

The mere fact that the Responsible Authority does not at this time intend to acquire more land to meet the need is not relevant. Indeed the Responsible Authority may alter its intention as circumstances change. Even if the Responsible Authority was required to acquire more land for public open space (which in our submission it clearly is not) then the Act does not specify when that acquisition must be made and the Responsible Authority is free to plan the future needs of its municipality."

".... Council is not entitled to make a public open space requirement simply because it wishes to improve existing open space or even if the proposed subdivision will result in a need to improve existing open space. The Council must consider that there will be a need for more open space for a requirement to be made",

is not wrong in law and does not misdirect the Tribunal.

"A contribution for open space can be required for improvement of existing open space_, and not just for the immediate acquisition of further land for public open space",_

It may be that section 18(1A) of the Subdivision Act does not require that the need be immediately satisfied by the purchase of land for additional open space, but, as the Tribunal (Mr. Marsden) expressly noted in Southern Surveys Pty Ltd the Boroondara City Council Appeal No. 1997/12963, at page 5:

"Section 18(1A) of the Subdivision Act requires that a need be established or demonstrated"

It has not been the Appellant/Applicant's contention that section 18(1A) of the Act requirements need to be met by the immediate acquisition of further land for public open space, but it is contended that there must still be demonstrated to be a need for more open space (in the physical sense) and not merely a need to improve existing open space. The words of the section are unambiguous."

This question has been considered by the Tribunal previously in appeals against conditions requiring contributions for public open space. In Peter Herbert & Associates Pty Ltd v City of Stonnington 17 AATR 27, which was an appeal against a condition in a permit for the subdivision of five town houses, Mr. Marsden said:

"Mr. Jones contended that the contribution sought in this instance failed all four tests. He submitted that there was no demonstrated need for Capital Works in the vicinity of the site, the contribution was excessive and therefore inequitable, there was little accountability with the Responsible Authority's processes and, as the appeal site was remote from any public open space reservation, the contribution lacked the requisite nexus."

Mr. Marsden quoted Section 18(1A) of the Subdivision Act and went on to say:

"The Tribunal sees no reason why Capital Improvements in facilities which attract regional patronage should not he at least partially funded from open space contributions, regardless of the precinct for which those funds are derived.

The third observation relates to the concession by Mr. Thompson that there is no intention on the Responsible Authority's part to purchase any land for public open space. This is a significant concession. The purchase of land in the Toorak area is very expensive and the size of an open space contribution is a function of the value of the land. However, it is no more expensive to carry out Capital Works within the Toorak area than it would be to carry out the same works in the poorest suburb in Melbourne ......"

Appeal No. 1997/12963 Southern Surveys Pty Ltd v Boroondara City Council, was an appeal against a condition in a permit for the subdivision of a development of five double storey attached houses, and was the subject of editorial comment at 19 AATR 241. Mr. Marsden said:

"Mr. Radisich drew particular attention to the opening words of the section which stipulate that a requirement can be imposed only if, as a result of the subdivision, there will be a need for more public open space. Mr. Radisich pointed out that nowhere in the Responsible Authority's submission was it suggested that there was an intention to purchase further land in the vicinity of the site, nor were any such purchases identified in the Strategy.

The fact that no new acquisition of open space within the vicinity is planned by the Responsible Authority seriously weakens its case for a 4% levy and, in the Tribunal's opinion, the figure is excessive. Setting a replacement figure necessarily involves exercising a somewhat arbitrary judgement. However, the Tribunal believes that :-

* existing open space would be used more intensively;

* the population density in the area of the subdivision is relatively high;

* there is an ongoing need to improve public open space reserves in the neighbourhood of the subdivision;

* the provision of private open space within the subdivision itself is minimal.

The Tribunal therefore fixes the contribution at 2%."

Appeal No. 1996/13136 K.J. Goodison & Associates v City of Boroondara, was an appeal against a condition in a permit for a submission of a site into nine lots. An existing building would be Lot 9 and the other eight lots would be developed with warehouse type buildings. Mr. Barr said:

"The Tribunal accepts that it is appropriate in established areas that a levy be obtained in order to maintain and/or develop open space for the benefit of residents and workers."

I accept what was said in the supplementary submission for the Responsible Authority than an open space contribution can be applied towards the improvement of existing public open space. The Council may well consider that there is a need for more and better public open space, but having regard to development in the area, if it is not able to provide additional public open space, I consider that having regard to Section 20(2) of the Subdivision Act, it can apply a contribution for public open space to the improvement of existing public open space, and it would then have more public open space of an appropriate quality. If it can be established that there is a need for additional public open space as a result of a subdivision then the preamble to Section 18(1A) is satisfied, whether or not the opportunity to obtain that additional public open space can be foreseen or not.

Equity and Accountability and the Eddie Barron Decision

The supplementary submission for the Responsible Authority said:

"It is submitted that these principles have no effect at all upon the statutory open space contribution under the Act.

If the principles have any relevance at all now then that relevance is confined to development contribution levies and similar impositions. The imposition of those levies is now governed by the Planning and Environment Act 1987 ("the P&E Act") and the provisions which were inserted into the P&E Act as a response to the Eddie Barron principles. The new principles on development levies are based on the Eddie Barron principles.

The type of development/infrastructure levies imposed under the P&E Act do not include contributions for public open space. Public open space contributions are governed under another statutory basis, that is, the Act.

Any matters which must be considered by the Responsible Authority (and by necessary extension, the Tribunal) in deciding what percentage of the value of the land should be contributed for public open space are those which the Act specifies. Any other matter is simply not relevant."

"The submissions put by the Responsible Authority relating to "equity and accountability" misinterpret the matters of principle set out by the Tribunal in Peter Herbert & Associates Pty Ltd v City of Stonnington 17AATR27. At page 32, the Tribunal, in its criticism of the City of Stonnington's policy, was clearly concerned with matters of equity and accountability, as well as the need for a demonstrated nexus between the percentage contribution being sought on the one hand and, on the other, the open space needs of the precinct or any wider regional need which may require satisfaction.

These principles, generally referred to as the Eddie Baron principles, are applicable to the public open space issue under section 18(1A), notwithstanding that they are not expressly listed as considerations to which regard must be had."

Both supplementary submissions sought to rely on Peter Herbert & Associates Pty Ltd v City of Stonnington, in which Mr. Marsden said:

"Mr. Jones referred the Tribunal to a number of decisions addressing the question of open space contributions and, in particular, the provisions of Section 18(1A) of the Subdivision Act. Insofar as they arrive at a particular percentage figure, most of these cases are distinguishable on their own facts. What emerges however is a strong line of authority for the following propositions:

* Public open space contributions can no longer be seen as a form of municipal taxation. There must be clear evidence that monies collected by this means will be spent in a way which benefits the neighbourhood of the subject site.

* It is highly desirable that a medium to long term strategy for Capital Works be in place.

Factors such as this, Mr. Jones contended, are simply extensions of the four criteria set down in the case of Eddie Barron Constructions Pty Ltd v Shire of Pakenham 6 AATR 10 namely, need equity, accountability and nexus.

Mr. Marsden went on to reduce the contribution required by Condition 5 of the permit from 4 per cent to 2 per cent. Whilst Mr. Marsden was concerned, as Mr. Callander argued in his supplementary submission, with matters of equity and accountability, he nevertheless allowed the permit to contain a requirement for a contribution for public open space. I consider that it is appropriate to follow the decision of Mr. Marsden in this respect.

Mr. Callander argued that with the previous uses of the appeal site there were employees on site who could have used public open space before and after work and at lunch time. Mr. Callander said that there would have been rate income generated as a result of those uses, "no doubt used in part to establish open space". Mr. Callander argued that the increase in the number of people on the appeal site would be small, and the increased use of public open space would "insignificant". He said that additional public open space would not be required.

In Peter Herbert & Associates Pty Ltd v City of Stonnington Mr. Marsden said:

"Having had regard to all the circumstances of this case, the Tribunal has come to the conclusion that the Responsible Authority has failed to justify its claim for a 4% contribution. On the material supplied by the Responsible Authority, the Tribunal believes that the appropriate figure should be 2%."

In Southern Surveys Pty Ltd v Boroondara City Council Mr. Marsden also reduced the contribution required from 4% to 2% ,for reasons that have already been quoted.

In K.J. Goodison and Associates v City of Boroondara Mr. Barr reduced the contribution from 5% to 2%, and said:

"The Tribunal finds that there should be some lesser contribution in this case because:

(a) there may be an increase in the actual numbers of workers on site full-time with his new development compared with the previous use even though the previous use may have had strong peaks.

The actual amount is difficult to establish with any precision because there are too many unknown or variables. Mr. Barber proposed that the levy be established at 1% based on his assessment that the workers on the site all would be engaged in warehousing. The Tribunal believes this is too low and makes no provision for possible changes of use for which it would be desirable to provide some additional margin."

Appeal No. 1997/16929 Bruce Anderson Assoc v Port Phillip CC was an appeal against a condition in a permit for development (including subdivision) and use of land at 350 St Kilda Road for the purposes of refurbishment and part reconstruction of existing buildings for residential serviced apartments. It was argued for the Appellant/Applicant that the proposal would probably result in a net reduction in population in the building and a substantial increase in on-site amenities was proposed. Mr. Gilfillan reduced the calculation required for 5% to 2.8% and said:

"The Tribunal is of the opinion that in this case the completed development will result in a sizeable reduction in population using the building but that these people will live in the building seven days per week and will therefore increase the weekend population in the municipality.

Clearly the heavy week day usage of facilities which the former government employees in the building engaged in, will not occur nevertheless, and I believe this is the major factor in this decision, the residential, population in the 76 apartments will be quite sizeable and these people will clearly add to the full time population of the municipality and will expect the provision, maintenance, upgrading and improvement of open space facilities as residents. Taking account of the ratio of respective areas of apartments to serviced apartments, ie 14,000m2 to 10,000m2, I believe it reasonable for the project to contribute 14/24 of 5% or 2.8%."

I accept that the number of people on the subject site may not increase significantly, but following Mr. Gilfillan in Bruce Anderson Assoc v Port Phillip CC I consider that those residents would use off site public open space, and use it more intensively. I believe that this approach is consistent with that adopted by Mr. Barr in K.J. Goodison & Associates v City of Boroondara.

Whilst the use of public open space by the future residents may not be significant in a municipality wide context, there will be some increase, which will lead to an increment in the demand for public open space. Whilst there might in fact be an increase in demand for the total public open space provided, if it is not possible to meet this demand it may be necessary to enhance the public open space already provided.

The 5% contribution may be appropriate for a greenfields site, but in this case some regard must be had to the fact that employees have been on the site for some time. The question then is what is an appropriate figure, which is more difficult to answer. I have come to the conclusion that 2% would be more appropriate, having regard to the factors that I have discussed, and the decisions in Bruce Anderson Assoc v Port Phillip CC and K.J. Goodison & Associates Pty Ltd v City of Boroondara.

Mr. Stewart, in his submission on Day 2, said in part:

"In the present case, this Tribunal has been addressed by way of oral and written submission on 27 January 1997, and even by supplementary written submission. We submit that it is appropriate for the Appellant to now devise new argument to seek to avoid the imposition of the condition requiring contribution by disguising it as a representation in respect of a recent and relevant case, without consequence. Accordingly, we seek an order of this Tribunal that the costs of this further hearing be awarded against the Appellant.

It is submitted that the Tribunal order that the Appellant/Applicant pay the costs of the Responsible Authority of this further hearing, which the Responsible Authority was required to call to address legal issues central to this matter that were not raised by the Appellant/Applicant to the Tribunal of the proper time, in the hearing of this matter or by inclusion in its supplementary submissions."

Mr. Callander, in an oral submission for the Applicant for Review/Permit Holder, opposed the award of costs.

The general rule as to costs pursuant to Section 109(1) of the Victorian Civil and Administrative Tribunal Act 1988 is that each party bears its own costs, but Section 109 goes on to provide that in certain circumstances the Tribunal may order that a party pay all or a specified part of the costs of another party in a proceeding. These provisions reflect Section 58(1) of the former Planning Appeals Act 1980, and Section 50 of the former Administrative Appeals Tribunal Act 1984.

The decision in Appeal No. 1997/73402 Domain Hill Properties Pty Ltd v City of Port Phillip, of which Mr. Callander became aware after Day 1, did provide an arguable case that this subdivision should be exempted from a requirement for a contribution provision for public open space. Unfortunately the matter had already been appealed to the Supreme Court, but neither of the parties nor the Tribunal were aware of that appeal on Day 2. Had there been an awareness of that appeal the Day 2 hearing may well have been adjourned or may in fact have been unnecessary. I have therefore come to the conclusion that it would be appropriate that each party bear its own costs in this matter.

The order of the Tribunal is that the Application for Review is allowed in part, and the figure of "5%" in Condition 2 is to be amended to "2%".

The Responsible Authority is directed to amend Permit No. BOR 97/527 in accordance with this Order to Section 85(1) of the Planning and Environment Act 1987.