Victorian Civil and Administrative Tribunal|2008-12-09

The applicant and the owner must pay to the Municipal council a sum of $90,000 equivalent to 5% of the site value of all the land in the subdivision intended to be used for residential, commercial or industrial purposes. The payment must be made prior to the issue of Statement of Compliance and may be adjusted in accordance with Section 19 Subdivision Act 1988.

The applicant for review has objected to the condition on what amounts to two grounds; firstly that there is existing places of public resort and recreation adjacent to the site and within the neighbourhood of the subdivision which is capable of catering for the current need of the lots in the subdivision and secondly that the Council has had plenty of opportunity to insert '5%' as a standard open space requirement to be applied in the Schedule clause 52.01 of the Moreland Planning Scheme.
In relation to the second ground this is not a relevant consideration for the Tribunal as to whether a 5% open space contribution has been imposed in the schedule in the planning scheme. Whilst the Council may have had time in which to insert such provisions into the planning scheme, it has not done so.

(1) If a requirement for public open space is not specified in the planning scheme, a Council, acting as a responsible authority or a referral authority under the Planning and Environment Act 1987 may require the applicant who proposes to create any additional separately disposable parcel of land by a plan of subdivision to-

(b) pay or agree to pay to the Council a percentage of the site value of all of the land in the subdivision intended to be used for

residential, industrial or commercial purposes, being a percentage set by the Council not exceeding 5 per cent; or

Section 18 (1A) provides 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, having regard to-

(a) the existing and proposed use or development of the land;

(b) any likelihood that existing open space will be more intensively used

subdivision and the effect of the subdivision on this;

(d) whether there are existing places of public resort or recreation in

the neighbourhood of the subdivision, and the adequacy of these;

(e) how much of the land in the subdivision is likely to be used for

(f) any policies of the Council concerning the provision of places of

Mr Easton highlighted the location of the subject land, indicating it has a common boundary with the De Chene Reserve to its east. This reserve Mr Easton described as part of a significant open space spine which extends several kilometres to the north and includes bicycle and pedestrian paths near Merri Creek. Within 500 metres of the subject land all classes of public open space is available including both passive and active areas. In this respect Mr Easton focused on whether there was an actual need for more open space created as a result of the subdivision.
Mr Easton was critical that there was no specific reference, in the Officer's report in relation to the application, as to an analysis of the imposition of the open space contribution, rather there was only a reference to the Moreland City Plan and policies.
Mr Wong referred to five areas of parkland within close proximity to and up to 850m from the subject land. He referred to clause 15.10 of the State Planning Policy Framework which has as an objective 'to assist in the creation of a diverse and integrated network of public open space commensurate with the needs of urban communities and rural areas'. The specific reference to 'open space' at clause 21.02-8 of the Local Planning Policy Framework indicates almost 10 per cent of Moreland (580 hectares) is available as public open space, this equates to less than two hectares of open space per 1000 residents with the distribution being uneven. At clause 21.03- 4 it is recognised that with increased development density there is additional pressure on public open space.
One of the Council's aims highlighted in clause 21.03-7 is 'to improve areas of public open space and to maximise opportunities to expand and enhance Moreland's open space network with a view to improving its environment.'
The Council commissioned SGS Economics and Planning Pty Ltd (SGS) to prepare a Public Open Space Contributions and Subdivision Report for the purposes of preparing a schedule to clause 52.01. This report, dated 25 August 2008, formed the basis of evidence presented on behalf of the Council by Mr Hrelja from SGS.
Mr Hrelja referred to the Moreland Open Space Strategy and Central Coburg 2020 policies as forming a strategic base which indicates 'new subdivisions will generate a need for more open space and/or improved or reconfigured open space in various parts of the municipality.' There is a recognised increase not only in housing and population within Moreland but also an increased employment base.
In the SGS report 36 open space projects were identified. The report refers to various rates if averaged across the municipality as a whole would suggest a contribution rate of 6.6%. On a suburb basis, 24 open space projects are flagged for Coburg which on the SGS calculations would suggest a rate of 7.9%. Given this assessment it was Mr Hrelja's view that a 5% levy was reasonable.
Whether the contribution will ultimately be for the acquisition of land or whether it is to be used for the improvement of existing land, it is evident that the subdivision into 45 lots will contribute to an increase in population density within the municipality. It is considered that the increase in population will result in an increase in the intensity of use of existing areas of public open space and particularly the ones located in close proximity to the subject land[1]. Numerous decisions of the Tribunal have accepted that the constant redevelopment of an area with an emphasis on residential use results in a need for more open space whether by way of purchase of land or the upgrading of existing facilities.
Mr Easton also submitted that if a contribution was determined it should be lower than the imposed 5%. Having regard to the analysis in the SGS report and the comments made in respect to the imposition of a particular rate by Mr Hrelja I am unable to conclude that the amount of 5% should be reduced.
I find that the subdivision will result in an increase in the number of dwellings on the subject land from originally one to 45 and as a result of the increase in the number of dwellings there will be an increase in the population on the subject land and an expected intensification in use of the public open space as a result of the increase in population.
There is no area set aside on the subject land for the occupants to use for resort and recreation. The reserve which abuts the subject site to the east appears to be heavily relied upon as being sufficient for the use of the increased number of residents on the subject land. Whilst the reserve exists it does from time to time require maintenance and upgrading to meet the increased demand for use. Along with an increase in density the Council has recognised in clause 21.03 - 4 that there must be an ensuring community benefit by way of enhancing its environmental assets within the municipality. It is not unreasonable that a developer increase the number of lots should contribute to such upkeep and enhancement of such assets. "the incremental effect has to be taken into consideration, and each should pay its share, or there will be no funds and no means of meeting the increased need.'[2]
The decision of the Responsible Authority is affirmed.

[1] PJR Paul v City of Melbourne 2 PABR 8; Dragicevic v Bayside CC [2001] VCAT 467; 765 Burwood Pty Ltd v City of Boroondara [1998] VCAT 466; Stokoe Pty Ltd v Melbourne City Council [2000] VCAT 2621

[2] Agnew v Yarra CC [2008] VCAT 489

Environment Act 1987

Barker Monahan Pty Ltd v Moreland CC [2008] VCAT 2432 (9 December 2008)

PJR Paul v City of Melbourne 2 PABR 8; Dragicevic v Bayside CC [2001] VCAT 467; 765 Burwood Pty Ltd v City of Boroondara [1998] VCAT 466; Stokoe Pty Ltd v Melbourne City Council [2000] VCAT 2621;Agnew v Yarra CC [2008] VCAT 489

Barker Monahan Pty Ltd v Moreland CC [2008] VCAT 2432

At a glance

Court

Decision date

Source

Judgment (17 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (2)

Barker Monahan Pty Ltd v Moreland CC [2008] VCAT 2432 (9 December 2008)