1. Clause 52.01 of the planning scheme sets out the provisions for public open space contributions and subdivision. In summary this clause provides that, where a person proposes to subdivide land:
   • A contribution must be made to the council for public open space in the amount specified in the schedule to the clause.
   • If no amount is specified in the schedule, a contribution for public open space may still be required under section 18 of the Subdivision Act.
2. The schedule to clause 52.01 of the planning scheme does not specify a public open space contribution amount for the area within which the subject land is located. While the Council submits that proposed amendment C148 to the planning scheme seeks to specify a 5% public open space contribution in the schedule to clause 52.01, this amendment is still underway.[2] As such, the Council must rely on section 18 of the Subdivision Act to require a public open space contribution.
3. Section 18 of the Subdivision Act provides for a council to require public open space. Subsection 18(1AA) of the Subdivision Act provides that (subject to subsection 18(1AB)), section 18 applies if a requirement for public open space is not specified in the planning scheme. Subsection 18(1AB) sets out circumstances in which Section 18 does not apply; [3] none of these circumstances apply to this matter. As such, Section 18 applies to the subdivision of the subject land.
4. Subsection 18(1) provides, in summary, that a council acting as a responsible authority under the Planning and Environment Act 1987 (PE Act) may require an applicant who proposes to create any additional separately disposable parcel of land by a plan of subdivision to set aside land for public open space, or pay a percentage of the site value, or a combination of the two. Specifically, as relevant to this application, subsection 18(1)(b) provides that a council may require an applicant to-

(b) pay or agree to pay to the council a percentage of the site value of all 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;

1. Subsection 18(1A) provides that a council may only make a public open space requirement if it considers that there will be a need for more open space as a result of the subdivision, having regard to a range of specified matters.
2. The Council has included a condition on the planning permit requiring payment equivalent to 5% of the land value in lieu of providing public open space on the plan of subdivision.

CAN A PUBLIC OPEN SPACE CONTRIBUTION BE REQUIRED UNDER SECTION 18 OF THE SUBDIVISION ACT?

1. The Applicant submits that the planning permit condition requiring the payment of a public open space contribution under section 18(1)(b) of the Subdivision Act is invalid as the land is not 'residential land' (or industrial or commercial land). In summary, their submissions include that:
   • The land is in the GWAZ1 and that the purposes of the GWAZ1 seek to provide land for agriculture, not residential purposes.
   • The use of the land for residential and most commercial purposes requires a planning permit, and most industrial uses are prohibited in the GWAZ1.
   • The application for subdivision did not seek the use of the land for dwellings, and there is no other application or permit for the lots to be used for dwellings.
   • The drainage strategy plan prepared for the proposed subdivision that shows the potential dwelling envelopes on the new lots was prepared at the request of the Council for further information; the existence of the dwelling envelopes on this plan should not be construed as meaning that the land will be used for dwellings.
   • The new lots are of sufficient size, ranging from 2.0ha to 2.36ha, to be used for a variety of agricultural related purposes, such as horse agistment.
2. The Council submits that section 18(1)(b) of the Subdivision Act does apply. They say, in summary, that:
   • The subdivided lots will enable the lots to be used for dwellings, and there is a high possibility that the land will be used as dwellings in the future.
   • The application was assessed on the basis that dwellings will be constructed in the future. Although a planning permit is required for use of the lots as dwellings, Council expects that permits would be approved.
   • The surrounding land has been subdivided in a similar fashion and those lots developed with dwellings.
   • The small size of the lots removes their use for agricultural purposes.
   • The subdivision provides rural residential lots, consistent with clause 11.02-1 (Supply of land) of the planning scheme.
   • The area is designated a 'rural residential area' based on clause 21.04 (Land use) of the planning scheme. Objective 1 of this clause includes the strategy to "Ensure land in the ... Green Wedge A ... Zones remains committed to low density, single dwelling residential use as the primary function of the area."
3. The key consideration in relation to the application of Section 18(1)(b) relates to whether the lots to be created by the subdivision (proposed lots) are intended to be used for residential, industrial or commercial purposes. While the parties' submissions focus on whether the land is intended to be used as residential land, having regard to Section 18 of the Subdivision Act I need to consider the matter more broadly and determine if the land is intended to be used for residential, industrial or commercial purposes.
4. I find that the proposed lots are intended to be used for a range of uses, including residential, industrial or commercial purposes, and as such a public open space contribution can be required under Section 18 of the Subdivision Act. I say this for the following reasons.
5. It is not reasonable to conclude that the intended purpose of the proposed lots is only the existing use of the subject land from which the proposed lots are to be created. While the existing use of the land is agricultural in nature, the application does not seek to limit the future use of the land to this purpose.
6. Even though the proposed lots are not associated with a specific use or development it does not follow that the subdivision is not intended for residential, industrial or commercial purposes. In the absence of a specified purpose for the proposed lots, I find that the intended uses of these lots should be considered broadly.
7. The purposes [4] of the GWAZ1 anticipate both agricultural and residential land uses; these purposes are-

To recognise and protect the amenity of existing rural living areas.

1. There is planning policy support for the residential use and development of land within the GWAZ1. The strategic statement for land use under clause 21.04 (Land use) of the planning scheme includes that land within the GWAZ [5] "remains committed to low density, single dwelling residential use as the primary function of the area".
2. The terms 'residential', 'industrial' and 'commercial' are not defined under the PE Act, the Subdivision Act or the planning scheme. As such, these terms have their ordinary meaning. In interpreting the ordinary meaning of these terms, I have had regard to relevant definitions in the Macquarie Dictionary.[6] The Macquarie Dictionary defines these and related terms,[7] as follows-

1. of or relating to residence or residences
2. adapted or used for residence: a residential district
3. (of a hotel , etc.) catering for guests who stay permanently or for extended periods.

'Residence' - the place, especially the house, in which one resides; dwelling place; dwelling; [8]

'Industrial' - of or relating to, of the nature of, or resulting from industry or productive labour;

'Industry'-a particular branch of trade or manufacture;

1. of, or of the nature of, commerce.
2. engaged in commerce.
3. capable of returning a profit: a commercial project.

'Commerce' - interchange of goods or commodities...; trade; business.

1. Having had regard to these definitions and those within the planning scheme, I find that many of the land uses possible [9] within the GWAZ1 can reasonably be considered residential, industrial or commercial uses. A 'dwelling', which is most obviously a residential purpose, is a possible use within the GWAZ1, albeit one for which a planning permit is required. The Council's assessment of the planning permit application and their submissions to the Tribunal indicate their acceptance of this subdivision as a 'rural residential' subdivision. Their submissions also indicate the likelihood of the approval of permits for dwellings on the proposed lots. The development and use of the surrounding GWAZ1 land to the north, east and south is rural residential in nature.
2. 'Bed and breakfast' and 'home occupation' are commercial uses associated with a dwelling; no planning permit is required for these uses in the GWAZ1. 'Primary produce sales' is another commercial use for which no planning permit is required under the GWAZ1, while 'plant nursery' is a commercial use for which a planning permit may be sought.[10] Within the GWAZ1 a planning permit may be sought for a 'camping and caravan park', which is a commercial use as well as potentially a residential use.[11]
3. I find that the categorisation of land as being used for 'agricultural' [12] purposes is not mutually exclusive of other categorisations and does not exclude such a use from also being an industrial or commercial use. For example, while horse agistment [13] is a use that falls within the scope of 'agriculture' it is also a commercial use.
4. I place no weight on whether a planning permit is required for the use or development of land as to whether that use or development can reasonably be considered an intended use for the proposed lots. The application does not seek to limit the use of the proposed lots to only those uses for which no planning permit is required, therefore the uses for which a planning permit is required are reasonably within scope of the intended use of the proposed lots.
5. I find that the only uses for which the proposed lots cannot be intended are uses that are prohibited under the planning scheme. It is not necessary for me to document those uses, rather I rely on the fact that no submissions have been made that the use or development of land for all residential, industrial or commercial purpose is prohibited.
6. Even if the application of Section 18 of the Subdivision Act can only be interpreted to apply where the intended use of the land in the subdivision can only be those uses for which no planning permit is required, within the GWAZ1 those uses include residential and commercial uses (as outlined above).

IS A REQUIREMENT FOR A PUBLIC OPEN SPACE CONTRIBUTION JUSTIFIED?

1. The Applicant submits that there will not be a need for more open space because of the proposed subdivision. They say, in summary:
   • There is no proposed residential or commercial use of the proposed lots at present.
   • While the subdivision will increase the population it is not a 'fait accompli' that existing open space will be more intensely used.
   • The large size of the proposed lots does not support an argument that even if the proposed lots are developed with dwellings the existing open space will be more intensively used.
   • The large sized lots cater for the recreational needs on site.
   • The subject land is proximate to the Dandenong Ranges National Park, which provides extensive recreational opportunities, and there is no case as to a deficiency of public open space provision in the vicinity of the subject land.
   • The facts of this matter are vastly different to those in Stupak v Hobsons Bay CC[14], as that decision involved land within the Residential 1 Zone and related to a proposal for three dwellings on a lot for which no planning permission was required for the use of the land.
2. Having regard to Section 18(1A) of the Subdivision Act, I find that there will be a need for public open space as a result of the subdivision and as such a public open space contribution is justified; I say this for the following reasons.
3. Section 18(1A) of the Subdivision Act limits the application of Section 18. Section 18(1A) provides that-

(1A) 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 after than before the subdivision;

(c) any existing or likely population density in the area of the 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 places of resort and recreation for lot owners;

(f) any policies of the Council concerning the provision of places of public resort and recreation.

1. As discussed above, the proposed lots can potentially be used for a range of residential, commercial and industrial uses. The Council anticipates the proposed lots to be developed and used as dwellings, although this is not an inevitability.
2. Any use or development of the proposed lots, whether for residential, industrial or commercial purposes, has the potential to increase the number of residents, occupants or employees on the land above that of the single dwelling that currently occupies the subject land. While the number of proposed lots is modest proportional to the area of the subject land, I consider that the creation of five additional lots in the context of a rural residential subdivision pattern is a moderate increase in the number of lots. I also find that the number of proposed lots is an indicator of the likely population density increase.
3. I find that as a consequence, there is a likelihood that areas of existing public open space will be more intensively used than at present. While the increase in the use of public open space may be marginal as a direct result of this subdivision, as noted by Deputy President Gibson in the Stupak decision [15] "any increase in population adds pressure, no matter how minimally, on existing public open space".
4. Even though the size of the proposed lots will provide considerable opportunities for resort and recreation for future residents, occupants or employees on the land, those opportunities relate to informal recreational activities. The proposed subdivision provides no areas of public resort or recreation. As such, the residents, occupants or employees of the proposed lots will need to rely on public open space and recreational facilities for activities that will not be accommodated on the proposed lots. Those types of activities reasonably include organised and club based sports such as netball or football and the like, and recreational activities such as hiking, biking or riding trails for example.
5. There are areas of public resort and recreation within reasonable proximity of the subject land. These include Pinks Reserve, approximately 2km to the north along Liverpool Road, and the Dandenong Ranges National Park. While there is no suggestion that there is a lack of public open space within proximity to the subject land, the Recreation and Open Space Strategy - Implementation Plan 2013-2023[16] identifies a range of improvements to existing facilities and proposal for new open space and recreational facilities within and in proximity to Kilsyth. Some of these facilities are recreational facilities that would not reasonably be expected to be accommodated on the proposed lots, and as such any future residents, occupants or employees of these lots may use these facilities. These include the proposed netball courts at Pinks Reserve and the proposed hiking and biking paths in various locations.
6. The Recreation and Open Space strategy sets out the intentions of the Council for the provision and improvement of public open spaces and recreation facilities across the municipality and the precinct within which the subject land is located. I note Member David's comments in relation to the Recreation and Open Space strategy in his decision in Chandler v Yarra Ranges SC, [17] which relates to the subdivision of land nearby[18] the subject land, as follows-

[30] I accept that the council has a rolling program of investment into open space and recreation reserves including shared use trails, and that future residents of the proposed subdivision here will have the opportunity, with all other residents, to use these facilities. The Council argued that its Recreation and Open Space Strategy that is to be considered by Council in July 2013 provides the framework for this, and require continued investment from its Public Open Space Investment Fund. I accept the Strategy to be a seriously entertained planning document, and whether or not it is approved in full by the Council, it will provide a basis for ongoing investment and into new and upgraded facilities. The question is whether this justifies the requirement for a 1% contribution.

1. Since the Chandler decision the Council has progressed with amendment C148 to the planning scheme that, amongst other things, proposes to specify a requirement for a 5% public open space contribution in the schedule to clause 52.01 of the planning scheme. Public exhibition of this amendment was completed in October 2016 but at the time of the hearing the submissions in response to the proposed amendment had not been considered by the Council. Despite the amendment not having yet progressed beyond public exhibition I am satisfied that the Recreation and Open Space strategy is the current policy framework for the Council in planning for and providing open space and recreation facilities. I am also satisfied that it is not necessary for this framework to be referenced or incorporated within the planning scheme for it to be relevant. I note Deputy President Gibson's comments in relation to section 18(1A)(f) of the Subdivision Act in the Stupak[19] decision that "...I do not consider that this reference is confined to policies within the planning scheme. The council has an open space plan, which I consider is a policy within the meaning of this criterion...".
2. I am therefore satisfied that there is justification for a requirement for a public open space contribution to be made under Section 18 of the Subdivision Act.

WHAT AMOUNT OF PUBLIC OPEN SPACE CONTRIBUTION IS APPROPRIATE?

1. In support of their requirement for a public open space contribution of 5% the Council submits, in summary, that-
   • The adopted Recreation and Open Space strategy outlines the upgrades that are sought to public open spaces across the council area.
   • While there is no specific legislative guidance in calculating the percentage payable, in circumstances where a specific requirement for the amount of a public open space contribution is not set out in clause 52.01 of a planning scheme, it is not unusual for a council to seek the full 5%.[20]
   • In Spencer v Yarra Ranges SC [21], the applicant's request to have the public open space contribution reduced from 5% to 3% was dismissed by the Tribunal (Member Cook).
   • Having regard to the potential use of the subdivided land and likely future demands of users, the subdivision will substantially increase the need for open space compared to the existing conditions.
   • There will be an increase in demand for sporting facilities.
   • The contribution will go some way to upgrading existing facilities to meet the needs of future residents.
   • A 5% public open space contribution is justified based on the enormous strategic work undertaken by Council relating to the demand for public open space and the resources required to upgrade public open spaces.
   • A 5% public open space contribution is the default the position and the onus is on the applicant to justify a reduction from this position. [22]
2. The Applicant submits that if a public open space contribution is imposed, it should be commensurate with the 0.2% applied by the Tribunal in the Chandler decision. In the Chandler decision the Council had sought a public open space contribution equivalent to 1% of the value of the land and the Tribunal (Member David) reduced the requirement to 0.2% of the value of the land.
3. I find that the circumstances of the application before me justify imposing a requirement that is less than the maximum 5% provided for under section 18(1) of the Subdivision Act. I say this for the following reasons.
4. There is discretion under section 18(1) of the Subdivision Act to impose a public open space requirement for an amount up to the equivalent of 5% of the value of the land. In the Stupak decision Deputy President Gibson said-

[13] In a case where there is no amount specified in the schedule to clause 52.01, there is discretion to vary the 5% allowed for by section 18, but the exercise of this discretion is separate to the consideration of whether there will be a need for more open space under section 18(1A).

1. There is no amount specified in the schedule to clause 52.01 of the planning scheme. While the Council is proposing to specify a requirement for a 5% public open space contribution in the schedule to clause 52.01 through planning scheme amendment C148, this amendment has not yet progressed beyond public exhibition. The proposed 5% public open space contribution and outcomes of the public exhibition of amendment C148 have not been tested through the independent Planning Panel process. Due to the substantial time that has elapsed since the completion of the public exhibition of this amendment I find there is a lack of certainty as to if, or when, this amendment will progress or whether it will progress in its exhibited form. I find that this provides sufficient uncertainty as to whether the proposed 5% public open space contribution will be included in the schedule to clause 52.01 of the planning scheme.
2. I put little weight on the Recreation and Open Space strategy as support for the specific requirement for a 5% contribution in this matter. No part of the Recreation and Open Space strategy documents provided to the Tribunal in this matter specify a requirement for a 5% public open space contribution. The 'Public Open Space Contributions Policy' that forms part of the strategy [23] states that the Stupak decision "will act as a precedent for how public open space contributions are treated in Victoria",[24] it does not however specify that the public open space contribution is to be 5%.
3. While in the Stupak decision Deputy President Gibson affirmed the application of a 5% public open space contribution, I find that the circumstances of that matter differ to the proposal before me. A key issue considered by Deputy President Gibson in determining what percentage of open space should be required related to whether a different proportion of public open space contribution should be paid by small subdivisions compared to large subdivisions in terms of the number of lots created. That is not the issue in the matter before me. The key issues in the matter before me relate to the extent of the demand for public open space in the context of the uncertainty of their ultimate use and the proportionally large sizes of the proposed lots.
4. The degree of uncertainty about the actual extent of the demand for public open space resulting from the proposed lots supports a public open space contribution amount less than the 5% required by the permit. While I have found that the intended use of the proposed lots includes a range of residential, commercial or industrial uses, the eventual use of each lot is unknown. I find that different uses may result in different numbers of residents, occupants or employees on the proposed lots, with the potential for consequential differences in the resultant demand for public open space. The ultimate use of the proposed lots will therefore have an impact on the extent of the demand for public open space.
5. I am satisfied that due to the large size of the lots, particularly compared to average size lots in conventional suburban residential areas, the demand for open space and recreational facilities will be less than might be generated in a conventional suburban residential area. As outlined above, the size of the proposed lots will provide considerable opportunities for resort and recreation for future residents, occupants or employees on the land, particularly for informal recreational activities, and that this will consequently impact the demand for public open space and recreational facilities. In find that the anticipated generation of a lesser demand for public open space justifies a lesser public open space contribution.
6. The circumstances of the Spencer decision are different to those in this matter and do not justify the 5% public open space contribution in this matter. In the Spencer decision the land was in a residential zone [25] and the proposal was for a conventional residential subdivision of a 6000 square metre lot into 10 lots. I find that the likely impact of such a subdivision on demand for public open space and recreation facilities would be different to that of the matter before me.
7. While not identical, the circumstances of the matter in the Chandler decision are somewhat similar to the circumstances of this matter. That decision relates to land within close proximity to the subject land within the same zone as the subject land. In the Chandler decision the land was zoned GWAZ1 in part, and that part of the land was to be subdivided into nine lots of between 1.15-2.98 hectares, similar to the proposed lots in the matter before me. The other part of the land was in the GWAZ2 zone; that part of the land was to be subdivided into four lots ranging in size from 3.74-5.72 hectares. In the Chandler decision Member David commented that "it is clear to me however, that a contribution in the order of 5% would be expected to apply to a much more intensive development than that considered here". I consider that finding can equally apply to the matter before me.
8. In finding that an amount of less than 5% is appropriate I have given little weight to the Applicant's submissions that the Recreation and Open Space strategy focusses on improving and upgrading existing open spaces and recreation facilities, rather than purchasing land or providing new open spaces or recreation facilities.[26] I say this because-
   • There are no submissions providing costings for purchasing land and providing new facilities comparative to costings for upgrading facilities.
   • The Recreation and Open Space Strategy - Implementation Plan includes proposals to provide new or expanded facilities within the Kilsyth and Montrose precinct, including constructing a regional netball facility at Pinks Reserve, and creating off road trails along the O'Shannassy Aqueduct and through the Dandenong Ranges National Park.
9. As to what amount the public open space contribution should be, I find that an amount equivalent to 1% of the value of the land is appropriate. I say this for the following reasons.
10. Section 18 of the Subdivision Act provides no guidance as to how to arrive at an appropriate amount for a public open space contribution. As commented by Deputy President Gibson in Stupak decision-

[16] The difficulty associated with considering the criteria in section 18(1A) is that whilst they may lead to a conclusion there is need for more open space, no assistance is provided about quantifying the percentage of the open space contribution that should be required under section 18(1).

[26] The lack of guidance in section 18(1) about what percentage of public open space may be required means that a discretion must be exercised in each case and this may lead to apparent inconsistencies from time to time. This is unfortunate and potentially inequitable. ...

1. In the absence of there being any actual analysis, as distinct from conjecture, of the likely demand for public open space and recreational facilities, or any analysis of how the amount for the public open space contribution should be calculated in the matter before me, any amount that I arrive at will be somewhat arbitrary. However, I consider that the Chandler decision provides a relevant reference point for establishing the appropriate amount for the public open space contribution in this matter.
2. While in the Chandler decision the Tribunal reduced the public open space requirement to 0.2% of the value of the land, the Council had originally sought a public open space contribution of 1%. While I find that the Chandler decision supports the application of an amount less than 5% for the proposal before me, I find that the circumstances of that matter and this proposal are sufficiently different that it does not justify a contribution of 0.2% in this case. Those differences include:
   • In the Chandler decision several of the proposed lots were substantially larger than those proposed in this matter. I consider that those larger lots could have a lesser impact on the demand for public open space and recreation facilities.
   • In the Chandler decision the Tribunal took account of the proposed provision of a 5 metre wide tree reserve and the retention of vegetation on one of the new lots, and the contribution this would make to biodiversity linkages. The proposal before me includes no such elements.
3. In the Chandler matter Council had originally sought a public open space contribution in the amount equivalent to 1% of the value of the land. The Council relied on the Recreation and Open Space strategy in support of that public open space contribution, although at the time of that hearing (in May 2013) the Council had not considered that strategy.[27] Other than the progression of planning scheme amendment C148 to completion of public exhibition, there are no submissions that there has been a substantive change in the circumstances of the subject land or surrounding GWAZ1 area, or to the Recreation and Open Space strategy. Having regard to this and to the uncertainty around whether and how amendment C148 will progress (as outlined above), I find there to be no substantive change to the circumstances that surrounded the Chandler decision. I therefore find that the Council's position in seeking a 1% public open space contribution in the Chandler matter to be an appropriate amount in the circumstances of this application.
4. Accordingly, I will order that requirement for the public open space contribution be amended to be the equivalent of 1% of the value of the land.

1. For the reasons given above, the decision of the responsible authority is varied. Condition 6 of planning permit YR-2016/292 is amended to read:
   1. Prior to the issue of a Statement of Compliance, a payment equivalent to 1% of the value of the land as determined by the Responsible Authority must be made to the Responsible Authority being payment of cash-in-lieu of the Public Open Space requirement.

[1] The submissions of the parties, any supporting exhibits given at the hearing and the statements of grounds filed have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.

[2] Proposed Amendment C148 to the Yarra Ranges Planning Scheme was placed on exhibition from 11 August 2016 until 6 October 2016 but has not progressed further. At the time of the hearing the Council had not considered submissions made in response to the exhibited amendment.

1. [3] Subsection (1AB) provides that section 18 of the Subdivision Act does not apply to land to which a planning scheme applies if
   • (a) the planning scheme includes an approved infrastructure contributions plan (within the meaning of section 46GA of the Planning and Environment Act 1987); and

(b) the infrastructure contributions plan applies to that land; and

(c) the land is of a type of land specified in a direction of the Minister issued under section 46GF(3)(n) of the Planning and Environment Act 1987 as being land to which this subsection applies.

[4] Clause 35.05 of the planning scheme.

[5] Along with land within the Low Density Residential Zone, and the Rural Living Zone.

[6] Macquarie Dictionary Online, 2017, Macquarie Dictionary Publishers, an imprint of Pan Macmillan Australia Pty Ltd, www.macquariedictionary.com.au.

[7] In many instances the dictionary definition for individual words include multiple definitions. I reference only those definitions that I consider applicable to the circumstances of this matter.

[8] 'Dwelling' is defined under clause 74 (Land use terms) of the planning scheme as "a building used as a self-contained residence which must include: a) a kitchen sink; b) food preparation facilities; c) a bath or shower; and d) a closet pan and wash basin. It includes out-buildings and works normal to a dwelling."

[9] Uses under clause 35.05-1 for which either a planning permit is or is not required.

[10] These terms are nested under in the land use term 'retail premises' under clauses 74 and 75 of the planning scheme.

[11] 'Camping and caravan park' is a land uses nested under the term 'Accommodation' under clauses 74 and 75 of the planning scheme. Whether or not the use can be categorised as a 'residential' use will depend on whether the accommodation serves as a person's residence, rather than being temporary accommodation.

[12] 'Agriculture' is defined under clause 74 (Land use terms) of the planning scheme, as "Land used to: a) propagate, cultivate or harvest plants, including cereals, flowers, fruit, seeds, trees, turf, and vegetables; b) keep, breed, board, or train animals, including livestock, and birds; or c) propagate, cultivate, rear, or harvest living resources of the sea or inland waters". The term includes 'Animal husbandry', 'Aquaculture' and 'Crop raising'.

[13] Defined by the Macquarie Dictionary as "to take in and feed or pasture (livestock) for payment".

[14] Stupak v Hobsons Bay CC [2011] VCAT 618

[15] Stupak v Hobsons Bay CC [2011] VCAT 618 at [14]

[16] The Recreation and Open Space Strategy - Implementation Plan 2013-2023 forms part of the Yarra Ranges Council 'Recreation and Open Space strategy'. This strategy consists of the Recreation and Open Space Strategy - Policy 2013-2023, the Recreation and Open Space Plan - Strategic Framework 2013-2023, and the Implementation Plan. The Implementation Plan includes issues and actions as well as precinct strategies actions; the Precinct E - Kilsyth and Montrose actions relate to the general area of the subject land.

[17] Chandler v Yarra Ranges SC [2013] VCAT 1154

[18] The Chandler decision relates to land at 395 Liverpool Road, Kilsyth; that land is approximately 500m to the south of the subject land.

[19] Stupak v Hobsons Bay CC [2011] VCAT 618 at [14]

[20] The Council referred to Peter J Mulcahy and Associates Pty Ltd v Whittlesea CC [2013] VCAT 375 at [47].

[21] Spencer v Yarra Ranges SC [2014] VCAT 338.

[22] The Council relied on Parry v Bass Coast SC [2011] VCAT 1977 [52]-[53].

[23] Recreation and Open Space Plan - Strategic Framework 2013-2023, Yarra Ranges Council at Appendix 3 pages 32-38.

[24] Recreation and Open Space Plan - Strategic Framework 2013-2023, Yarra Ranges Council at Appendix 3 page 34.

[26] As per the Precinct Strategies actions identified for Precinct E - Kilsyth and Montrose in the Recreation and Open Space Strategy - Implementation Plan 2013-2023, Yarra Ranges Council .

[27] The decision notes that the Council was due to consider the strategy in July 2013.