For the Responsible Authority: Ms. K. McPherson, Planning Officer

1. This is an Application under Section 80 of the Planning and Environment Act 1987 ("the Act") brought by the Permit Holder for review of a condition in a permit which the Nillumbik Shire Council ("the Responsible Authority") has issued to it.

2. Ms. McPherson, in her written submission for the Responsible Authority, said:

"The site is situated on the southern side of Main Road between the intersections of Main Road and Coolabah Drive to the west and Main Road and Zig Zag Road to the east (refer to attachment 1). The site covers an area of 1847m2 with a gradual fall from the rear south western corner to the front north east corner to the front north east corner of the property. The site has a 30.5 metre frontage to Main Road.

The site has been developed with 4 units at a density of 1:462m2, replacing an existing single storey weatherboard dwelling set back 23 metres from the road reserve and located approximately in the centre of the site.

A Planning Permit application was lodged in January 2000 for a 4 lot subdivision of the site. The site had been developed for residential use and the dwellings on the site were at lock up stage. A number of referrals were carried out in accordance with Section 8 of the Subdivision Act 1988 and no objections were received subject to conditions being placed on the permit.

The application was not advertised and a Permit was issued on 22 March 2000 which included a requirement for cash in lieu of open space representing 5% of the site value (Condition 2 subject of this appeal) (refer attachment 2 - Planning Permit 8/2000)."

3. The subject land is covered by the New Format Nillumbik Planning Scheme, approval of which was gazetted on 22 June 2000, and is in a Residential 1 Zone.

Condition subject to the Application for Review

4. The condition that is the subject of the Application for Review is:

"Prior to the issue of a Statement of Compliance, the owner must pay to the Council an amount equal to 5% of the site value of all of the land being subdivided, in accordance with Section 18 of the Subdivision Act."

5. Ms. McPherson discussed references to provision for public open space in the Municipal Strategic Statement, which is part of the Planning Scheme, and said:

"Within Clause 21.03 of Council's Municipal Strategic Statement it is stated that with respect to infrastructure development issues within the Shire, "an increasing population and changes in demographics result in a demand for additional recreational facilities and localised parks/playgrounds, and a greater variety of recreational opportunities. The use of development contributions in new subdivisions will assist in the provision of appropriate open space and recreational facilities (Page 25)".

6. Ms. McPherson also addressed Condition 2 in the context of the tests set out in Section 18 of the Subdivision Act of 1988.

7. Mr. Loy spoke to a written submission for the Applicant for Review/Permit Holder. Mr. Loy said:

"The Nillumbik Shire Council Municipal Strategic Statement is included within the New Format Planning Scheme and there appears limited reference to public open space issues within the document."

8. Mr. Loy went on to set out some of those references. Mr. Loy also addressed the tests set out in Section 18 of the Subdivision Act.

8. With the respect to policies, as referred to in Section 18(1A)(f), Mr. Loy referred to the Decision of Mr. Marsden in Appeal No. 1995/17453 David Ellis v Shire of Nillumbik, which was an appeal against conditions in a permit for a three lot subdivision, including a condition requiring a 5% contribution for provision of public open space. Mr. Loy provided a quotation from that Decision as follows:

"The Council presently has no policy concerning the provision of open space in this area. If it is to succeed in appeals such as this, it needs to establish such a policy. Even so, it will be necessary to demonstrate that the impost is `a result of the subdivision' ".

9. Mr. Loy also cited a decision by Mr. Terrill in Appeal No. 1995/21214 M and M Grasberger v Shire of Nillumbik, which was an appeal against conditions in a permit for a four lot subdivision, including a requirement for a contribution of 5%. Mr. Terrill directed that the permit not contain this condition, and relied on the decision of Mr. Marsden as quoted above.

10. I note that at the time of the above two decisions the relevant planning scheme was the former Diamond Valley Planning Scheme.

11. Mr. Loy tendered a page from a submission by himself in Application for Review No. 1998/30343 K and G Schmidt v Shire of Nillumbik, which was an Application for Review of a condition in a permit for a five lot subdivision which required a 2% contribution. Dr. Atkinson considered that 2% was an appropriate figure. Dr. Atkinson said in her Reasons:

"The subject land is also affected by the Yarrambat Extension Local Structure Plan, adopted by the Council in September 1994. To the east, land towards Yarrambat is affected by the Yarrambat Local Structure Plan adopted in May 1993. These two plans envisage the creation of an additional 55 and 128 lots respectively, with the area covered currently providing some 141 lots.

Under the Council's New Format Planning Scheme and Municipal Strategic Statement (MSS) which are currently waiting a panel hearing, the subject site and surrounding area is proposed to be re-zoned Environmental Rural, with a minimum 2h subdivision requirement.

The Tribunal also considers that the location of such facilities on one site reinforces the need for linkages to provide access for residents and which are part of the network of walking trails and open space linkages identified in the Structure Plans.

The Tribunal considers that in such areas these linkages provide an important role in increasing access to formal and other recreational facilities for residents at some distance from their location, such as those in this proposed subdivision.

While the Structure Plan indicates that a special charge scheme is to be levied for the bridle paths proposed, this is stated to be in addition to contributions applied for other purposes such as public open space and open space linkages, walking trails etc.

The Tribunal notes that Council's MSS makes a clear commitment to the need for formal recreation facilities and open space linkages, and which reinforces local policy already adopted for this area."

12. Whilst there may well have been a policy vacuum in this respect under the former Diamond Valley Planning Scheme, which was in force at the time of the decisions of Mr. Marsden and Mr. Terrill, it would seem policy development had moved somewhat by the time of the decision of Dr. Atkinson. It would seem also that policy development has moved further with the gazettal of the New Format Nillumbik Planning Scheme. The New Format Planning Scheme includes the Municipal Strategic Statement, details of which were discussed by Ms. McPherson, and which was referred to by Mr. Loy. I consider that the policy deficiencies evident at the time of the decisions of Mr. Marsden and Mr. Terrill have now been addressed.

"According to Section 18(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 certain criteria set down under the provisions of Section 18(1A)."

14. I consider the question of "need for more open space" in Appeal No. 1997/72488 765 Burwood Pty Ltd v City of Boroondara. This was an appeal against a condition requiring a 5% contribution in a permit for subdivision of refurbished buildings into 17 lots for residential purposes. Mr. Callander, for the Applicant for Review/Permit Holder, said:

"... 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."

15. Messrs. Maddock Lonie & Chisholm, Solicitors for the Responsible Authority, responded:

"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."

"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. 1997112963, 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."

18. I consider that four dwellings on the subject land, in place of the one dwelling which previously occupied the site, are likely to result in an increase in the number of residents on the site, and an increase in the use of public open space. Whilst the provision of private open space for each the dwellings might be relatively generous for medium density housing, the open space per dwelling will be less than available for the former dwelling.

19. I consider that what was said in my Reasons in 765 Burwood Pty Ltd v City of Boroondara can be applied in the subject Application for Review. The fact that there are no specific proposals for provision or improvement of public open space in the area does weakened the case to some extent, as in Southern Surveys Pty Ltd v Boroondara City Council. The case of the Responsible Authority would also be stronger if in fact there was a medium to long term strategy for capital works for provision and improvement of private open space, in addition to the policies set out in the Municipal Strategic Statement.

20. I consider that there is a case for a contribution for public open space. I am not convinced that the demand for public open space generated by these dwellings would be sufficient to warrant a contribution of 5%, and as I have said above, the case is weakened to some extent by the fact that it would seem that there are no proposals at this time for acquisition of land for public open space, and there is no strategy for capital works. Having regard to all these factors I consider that a contribution of 2% would be appropriate, and I will vary the condition accordingly.

For the above reasons this Application is allowed in part. It is appropriate that the permit provide for a 2% contribution for provision of public open space, and I will so order.