1. The decision of the Responsible Authority is affirmed.
2. The application to amend or delete condition 2 of Permit PA0714557 is refused.

1. A permit was issued on 13 April 2007 (PA0612609) at the direction of the Tribunal, allowing the construction of three double storey town houses on land at 33 David Street, Altona. Three dwellings have been constructed on the land in accordance with the permit.
2. On 5 December 2007 a permit (PA0714557) was issued by the Responsible Authority allowing the subject land to be subdivided into three lots. Condition 2 of the permit requires:

Prior to the Statement of Compliance being issued by the Responsible Authority, a public open space contribution fee equivalent to 5 per cent of the value of the subject land shall be paid to Council, pursuant to Section 18 of the Subdivision Act 1988.

1. The Responsible Authority on 17 December 2007 requested the applicants pay a 5% open space contribution which amounts to $24,650.00 in accordance with the requirements of the permit.
2. The applicants have objected to this requirement and submit that if a percentage is required it should be 2% not 5%. Mr Ahmed submitted that at the time he applied for a permit to construct the three dwellings he was advised by the Responsible Authority that a 2% open space contribution would be required upon subdivision. In this respect Mr Ahmed referred to a number of nearby developments where the 2% contribution fee had been applied.
3. Mr Ahmed indicated he was aware that on 26 April 2007 the Responsible Authority adopted a policy applying up to 5% public open space contribution fee for all subdivisions over two lots. However he submitted that as he had obtained a permit for three dwellings on the land prior to this time then only a 2% contribution fee should apply to his land.
4. The requirement as to whether a public open space contribution fee is applied to land only occurs when the land is subdivided. If Mr Ahmed's permit for the construction of three dwellings had also included subdivision of the land into three lots then his argument that 2 % should apply rather than 5%, as the permit was granted prior to the implementation of this policy by the Council, may have some weight, but that is not the situation in this case.
5. The Responsible Authority is able, if a requirement for public open space is not specified in the planning scheme, to pursuant to Section 18 Subdivision Act 1988 require an applicant who proposes to create any additional separately disposable parcel of land, to set aside land not exceeding 5% of the site, or pay an amount not exceeding the equivalent of 5% of the site value (or a combination of land and payment not exceeding 5%).
6. There is no provision specified within the Hobsons Bay Planning Scheme requiring a public open space contribution. Clause 52.01 provides

A person who proposes to subdivide land must make a contribution to the council for public open space in an amount specified in the schedule to this clause (being a percentage of the land intended to be used for residential, industrial or commercial purposes, or a percentage of the site value of such land, or a combination of both). If no amount is specified, a contribution for public open space may still be required under Section 18 of the Subdivision Act 1988.

1. The land was used for residential purposes prior to the granting of the subdivision permit. The land had contained one residential dwelling. The land now contains three residential dwellings. There has been a potential increase in the number of persons occupying the land and a reduction in the area of private open space available for residents of the subject land. The use of the land has therefore intensified. As a result of this intensification there will be a greater demand placed on open space in the area.
2. A Council may only make a public open space requirement if is considers that, as a result of the subdivision, there will be a need for more open space. As a result of the intensification of residential development on the land there is a resultant likelihood that existing open space will be more intensely used[1].
3. The Responsible Authority has an expectation that its resident population will marginally increase from 80,400 (estimated in 2001) over the next 15 years. The subject land is identified in the Council's Housing Strategy as 'being in an area of substantial change'.
4. The areas of open space within close proximity to the subject land are the foreshore, Logan Reserve and JK Grant Reserve which vary in distance from 430m to 850m. Clause 21.11-2, the Open Space, Environment and Conservation policy in the planning scheme has various objectives including
   • To provide adequate open space for active recreation to meet the needs of the community and to provide a diverse range of experiences and leisure opportunities.
   • To improve the overall open space system by enhancing the diversity of leisure opportunities available through out the municipality.
5. This policy also includes strategies to 'allocate and spend the open space funds collected under the Subdivision Act including 'the open space needs of incoming residents'.
6. The Council's adopted Open Space Plan includes similar objectives and strategies as those highlighted within the policies of the planning scheme and has as an overall objective 'the creation of a diverse and integrated network of public open space to meet the current and future needs of the community'.
7. The requirement for an open space contribution is supported by numerous policies either contained within the planning scheme or adopted by the Council. The Responsible Authority has adopted in its policy a requirement that 5% be applied to the creation of more than two lots.
8. It is unfortunate that the Council's adopted policy has not found its way into the schedule to clause 52.01 in the planning scheme which would resolve the argument currently being had. Be that as it may, I am not persuaded by the arguments put by Mr Ahmed that there is any justification in reducing this percentage in relation to his property. The condition stands.

[1] Aaltonen v Yarra Ranges SC [2005] VCAT 1308