Environment and planning - Planning - Development assessment and control - Assessment and control of particular matters - Subdivision - Conditions imposed on subdivision approvals - Other conditions - Payment in lieu of increasing public open space - Operation of ss 117(1) and (2) of Local Government (Building and Miscellaneous Provisions) Act 1993 - Even if the council does not seek security under s 117(1) it can still require payment in lieu of public open space under s 117(2) - If council intends to require such a payment, whether or not it seeks security for it, council must give notice of that requirement at the time of planning approval - Such requirement must be made in the conditions of planning approval - Once requirement for payment is made by way of condition then provisions of the legislation will apply according to the terms of s 117 - Section 117 will, if applicable, take precedence over any contrary provision in the condition - To extent the condition requiring payment is inconsistent with s 117 it is ultra vires and of no effect.

Acts Interpretation Act 1931 (Tas), s 8A

Land Acquisition Act 1993 (Tas), ss 27, 36, 41, 42, 59(2), 62

Land Use Planning Approvals Act 1993 (Tas), s 51(3A)

Local Government (Building and Miscellaneous Provisions) Act 1993 (Tas), ss 80, 81(2), 83(1), 84, 85, 87, 88(1), 89(1), 89(5), 94, 116(1), 116(6), 117(1), 117(2), 117(3), 117(4), 117(5)

Raff Angus Pty Ltd v Resource Management and Planning Appeal Tribunal [2018] TASSC 60

Spencer v The Commonwealth of Australia [1907] HCA 82; (1907) 5 CLR 418

Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63

Appellant: Leonard Fernadez Barristers & Solicitors

Judgment Number: [2025] TASCCA 10

1. I have had the benefit of Brett J's draft judgment and I would dismiss this appeal for the reasons given by his Honour.

1. This appeal concerns the subdivision of a block of land situated at Lot 26, Mannata Street Lauderdale. In 2015, the then owner of that property applied to the respondent, who was and still is the relevant planning authority, for approval of a plan of subdivision. The proposed subdivision was to divide the land into seven residential lots with an eighth lot constituting the balance.
2. The respondent approved the subdivision by the grant of a permit. The subdivision plan did not include any provision for public open space, but a condition of the approval required the appellant to pay a cash sum in lieu of public open space, calculated at five per cent of the value of the land. A dispute subsequently arose between the parties concerning the value upon which the payment was to be based, and hence the quantum of the payment. By originating application filed on 11 November 2022, the appellant sought to have the question of the amount of the contribution determined by the Supreme Court as a disputed claim for compensation under the Land Acquisition Act 1993. The jurisdiction for that determination is asserted to arise pursuant to s 117(3) of the Local Government (Building and Miscellaneous Provisions) Act 1993 (the LGBMP).
3. The application was heard by Marshall AJ on 2 December 2024. Each party presented expert evidence from a valuer. The primary differences between the valuation evidence were the date at which value was to be assessed and the methodology adopted for the assessment. The valuation asserted by the respondent was $2,500,000, resulting in a contribution of $125,000, and by the appellant $1,300,000 resulting in a contribution of $65,000. The primary judge handed down his decision on 19 December 2024. His Honour accepted the valuation evidence presented by the respondent and assessed the relevant contribution accordingly. The appellant has now appealed that decision to this Court. In essence, the grounds of appeal assert that the primary judge erred in respect of both the date and the methodology of the valuation.
4. Because the primary judge exercised jurisdiction to determine the amount of the payment as a disputed claim for compensation under the Land Acquisition Act, it is arguable that the hearing and determination of that question was in accordance with the power conferred by s 59(2) of that Act. Section 62 provides for appeals to this Court from a determination made under s 59. The appeal is to be by way of rehearing. However, the right to appeal is confined to a question of law. The grounds of appeal assert errors "in law and/or fact". On the face of the legislation, there is no right to appeal on a question of fact. This question did not arise either in the submissions of the parties or on the hearing of the appeal. Because of the view I have taken about the merits of each ground, it is not necessary to determine the point. It may well be in any event that the fundamental questions raised by the grounds of appeal at the very least are questions of mixed fact and law, but as the parties have not had the opportunity to make submissions, I decline to express a concluded view.

1. Before considering the dispute in detail, it is convenient to first consider the legislative context.
2. Subdivision is the division of the surface of a piece of land by creating estates or interests giving separate rights of occupation: s 80 of the LGBMP. The process for subdivision is dealt with and regulated by Part 3 of that Act. The starting point is s 81 which prohibits an owner of land from subdividing the land except, for relevant purposes, in accordance with a plan of subdivision which has been approved by the grant of a permit under the Land Use Planning Approvals Act 1993 (LUPA). Section 81(2) provides that a planning scheme may provide that an application for approval of the subdivision plan is to be made as if it were an application for a discretionary or permitted development permit. I will refer to this approval as "planning approval". In accordance with the definition contained in s 80, the plan submitted for planning approval is termed the "plan of subdivision". The planning approval stage is fundamental to the balance of the process because it is then that the concept and layout of the proposed subdivision is determined. The application can be rejected. Section 84 provides circumstances in which the council "is not to approve a plan of subdivision". Section 85 prescribes a further set of circumstances, largely to do with layout and design, in which the council can, in its discretion, refuse to approve the plan of subdivision. These include where the council is of the opinion that the layout should be altered to include or omit public open space. Of course, these provisions are in addition to specific provisions relevant to the land contained in the applicable planning scheme. Further, it is at the stage of planning approval that the council can place conditions on the permit. There is no power to do so subsequently. It is therefore at this stage that the owner will be aware as to what conditions it must meet if the subdivision is to proceed.
3. Part 3 then prescribes the process whereby an approved plan of subdivision becomes registered by the Recorder of Titles, thereby creating the new and separate titles. The legislatively prescribed journey between planning approval and registration provides for one or more further iterations of the plan. These iterations provide for provision of further detail, related in particular to survey, engineering, provision of services, and roads. They can be subject to further approval by relevant agencies. There is provision for adjustment to layout and design to meet title requirements including ensuring that each separate parcel has the qualities of a minimum lot. However, it is clear that any further iteration must comply in substance with the approved plan of subdivision. There is nothing to prevent the owner from withdrawing the plan and terminating the process at any time prior to registration. However, once registered, the act of subdivision is complete and the land is then comprised of the individual proprietary interests thereby created.
4. In general overview, the process is as follows:
   • Section 87 provides that on receipt of planning approval, the owner is to arrange for the preparation of a final plan by a registered surveyor in accordance with:

(a) the requirements approved by the Recorder of Titles and

(b) any other requirement of the permit issued under LUPA.

By virtue of s 80, "final plan" where it appears elsewhere in Part 3, means a final plan referred to in this section.

• Section 88 provides that the owner is to lodge the final plan with the council, together with certain other documents. This includes evidence satisfactory to the council of compliance with each of the permit conditions which must be complied with before the plan is sealed.
• By s 89, the council within 20 business days after the final plan is lodged with it under s 88, is to determine whether the final plan complies with Part 3. If it does so determine, then the council is to cause its seal to be affixed to the plan and cause the sealed plan to be lodged in the office of the Recorder of Titles.
• By s 89(5), on lodgement of the plan, the Recorder must notify the council and the owner that the plan requires to be amended if satisfied that it is deficient in certain defined respects. This includes issues affecting title and minimum lot size.
• By s 94, the final plan takes effect as a sealed plan when the Recorder of Titles signs and dates a memorandum on the plan that the plan is accepted. There are then provisions which apply in respect of the registration and issue of the plan and separate titles. Under s 80, a "sealed plan" for the purposes of Part 3 means a plan approved and sealed under the Part and which has taken effect as provided in s 94. Accordingly, although the legislation variously refers to the plan after the council has affixed its seal as the "sealed plan", "priority final plan" and "final plan", it does not comply with the definition of a sealed plan until it takes effect in accordance with s 94.

1. It is clear that the legislative scheme contemplates that one of the matters to be considered and determined at the time of the grant of planning approval is the question of provision by the owner of public open space within the proposed subdivision. "Public open space" is defined by s 80 to mean "space for public recreation or public gardens or for similar purposes".
2. Although the legislation permits the council to require a greater proportion, the underlying expectation given effect by the relevant provisions of the LGBMP is that the owner will dedicate, for nominal compensation, five percent of the whole area of the land being subdivided to public open space. There are various ways in which this expectation can be met. The most basic of these is that the plan may show land set apart for public open space. Section 83(1) provides that the council, before it approves a plan of subdivision, may require the owner to sell to it for a nominal consideration any land shown on the plan in this way. If the council considers that the plan does not show sufficient public open space, then it has two options. Firstly, under s 85 it may refuse to approve the plan of subdivision if it is of the opinion that the layout should be altered to include public open space. Secondly, the Act seems to assume that the council may require an owner to increase the area set apart for public open space in the plan. This assumption arises from the provisions of s 116. Section 116(1) provides that if the council requires an owner to increase the area for public open space beyond that provided for in the plan of subdivision, so that the total area so dedicated exceeds five percent of the land, then the council must purchase the excess. The combined effect of ss 83 and 116 is that the council may require an owner to provide any amount of public open space, but may only acquire for nominal consideration under s 83 an area up to five percent of the whole area comprised in the plan of subdivision. Any land required for public open space in excess of five percent must be purchased by council in accordance with a sum calculated according to the provisions of s 116. These provisions include that the land is to be valued at the date of lodgement of the plan of subdivision and the amount, if not agreed, is to be determined as if it were a disputed claim for compensation under the Land Acquisition Act.
3. The other alternative which is available to the council under the legislative scheme, where it takes the view that the owner has not shown adequate or any public open space in the plan of subdivision, is to require a cash payment in lieu of the provision of public open space. This option is the subject of s 117. I will return to this section in due course.

1. The respondent granted planning approval for this subdivision on 2 February 2015. The permit contained a number of conditions, but as already noted, the one of relevance to these proceedings is a condition which provided for the payment by the developer to the respondent of a cash sum in lieu of provision of public open space in the plan. The plan did not include any provision for public open space. The condition provided for a payment calculated at 5% of the value of the subdivided land assessed "as at the date of the lodgement of the final plan of subdivision for sealing". The value was to be assessed by the Valuer General. The effect of the condition was that either the payment or provision of security for it in the form of a bond and supporting bank guarantee was to be provided to the respondent prior to the sealing of the final plan.
2. The respondent's decision to approve the subdivision was subject to an appeal to the Resource Management and Planning Appeal Tribunal. On 25 August 2015, in accordance with the decision of the Tribunal, the respondent issued a fresh planning permit for the subdivision. In 2017, the appellant became the registered owner of the land. On 19 January 2021, the appellant's surveyor lodged with the respondent for the first time the final plan and schedule of easements, pursuant to s 88(1). There were also a number of minor amendments to the permit. However, any such changes did not substantially affect the layout of the subdivision originally approved in 2015. The final plan did not show any provision for public space and the condition which provided for a cash contribution in lieu of public open space remained unchanged.
3. On 28 January 2021, the respondent forwarded an invoice to the appellant's surveyor for the public open space contribution. The invoice was in the sum of $100,000. This sum was calculated as five per cent of a value of $2 million. Although the condition had provided that the payment was to be based on a valuation performed by the Valuer General, the value upon which the payment was based was assessed by a private valuer, Andy Bevin, who had been engaged for that purpose by the respondent. The appellant paid the invoiced sum under protest. I assume that this was done to avoid any further delay. The proceedings at first instance and this appeal proceeded on the basis that neither party was bound in respect of the quantum of the required payment, by either the invoice or the payment made by the appellant. Both parties subsequently commissioned further valuations, which were the subject of the evidence presented to the primary judge.
4. On 4 August 2021, there was a minor amendment to the planning permit. This seems to have been a consequence of the requirements of Tas Water. The amendment included an adjustment to the plan relating to a significant easement on the land. On 11 August 2021, the appellant's surveyor forwarded the amended final plan to the respondent. There was then some further correspondence to resolve matters of detail. The respondent affixed its seal to the plan on 14 September 2021 and forwarded the sealed plan to the Recorder of Titles on 16 September 2021. This constituted the lodgement of that plan for the purposes of s 89(1). It is not clear from the evidence when the Recorder signed and dated the memorandum in accordance with s 94, but it can be inferred that this was done shortly after 16 September 2021.

1. The respondent's valuer, Mr Bevin, was initially instructed to and did value the land as at 20 December 2020. In accordance with his instructions, he valued only Lots 1 to 7 which were the new lots created by the subdivision excluding the balance, Lot 8. This valuation was $2,000,000. In accordance with amended instructions, his final assessment was of the value of the whole land, including Lot 8, as at 11 August 2021. He assessed the value on that basis at $2,500,000.
2. Mr Bevin's evidence was that he valued the land on the basis of its market value as at the stated date. In general terms, he relied on comparable sales and applied what he termed the "current international standard" which is consistent with the test set down by the High Court in Spencer v The Commonwealth of Australia [1907] HCA 82; 5 CLR 418. However, he was instructed to and did value the land on the assumption that the subdivision was complete, as if the lots were ready to market, suitable for residential development and sold individually. He then applied a discount which, for the final assessment, was 15%, to reflect the assumption that they were to be sold together at one time.
3. The appellant's valuer, Mr Page, applied the same general test when assessing value. However, in accordance with his instructions, he valued the land as at 19 January 2021, which was the date when the final plan was first provided by the surveyor to the respondent under s 87. He utilised a methodology known as the hypothetical development approach complemented by the direct comparison approach. In essence, this involved an assessment of the gross value of the land based on comparison with other sales to achieve an aggregate gross value calculated by reference to the area of each proposed subdivided lot. He calculated an aggregate gross value on this basis of $2,695,000. He then deducted his assessment of the hypothetical cost of subdivision which reduced the aggregate value to $1,300,000. The purpose of the deduction was to achieve a market value of the land on the basis that it was to be sold as a single parcel of land in its unsubdivided state, but taking into account its potential for subdivision.
4. The differences between the bases of valuation, in particular the date at which the land was to be valued and whether it was to be valued on the assumption that it was before or after subdivision, reflected the issues raised by the parties before the primary judge. They also reflect the issues raised by the grounds of appeal. The primary judge found in favour of the respondent on both issues and accepted the valuation evidence of Mr Bevin in preference to that of Mr Page. It is apparent from his Honour's decision that he took the view that the issues are interrelated. He determined that the value must be assessed on the assumption that the subdivision has been completed. His Honour, in fact, found that the correct date for valuation was 16 September 2021, which is the date that the final plan was sent to the Recorder of Titles for final acceptance under s 94. This was subsequent to the date contended for by the respondent and upon which Mr Bevin had based his valuation. However, the primary judge concluded that any potential difference in value was insignificant and, accordingly, simply applied the valuation arrived at by Mr Bevin. Although the primary judge did not directly criticise Mr Page's opinion, he concluded he had applied an incorrect methodology and, in particular, that he should not have deducted the hypothetical costs of development. Ultimately, his Honour concluded that the market value of the land as a single sale but on the basis of individual subdivided allotments was the correct methodology and this accorded with Mr Bevin's opinion. The primary judge assessed the amount payable as $125,000, being five per cent of Mr Bevin's assessment of value at $ 2,500,000.

1. The common position of the parties, which seems to have been accepted and assumed by the learned primary judge, is that the amount of a cash payment in lieu of provision of public open space was payable and fell to be assessed under the provisions of s 117 of the LGBMP. I set out the relevant provisions of that section:

"117 Payment instead of increasing public open space

(1) Instead of requiring an owner to increase the area for public open space, the council, before approving a plan of subdivision may require security for the payment of an amount calculated under subsection (2) .

(a) may specify that compliance with a requirement specified in subsection (1) is an acceptable solution in relation to subdivisions; and

(b) may enable a permitted development permit to be issued if such an acceptable solution is complied with in relation to a plan of subdivision.

(2) The amount required to be paid is an amount not exceeding an amount which bears the same ratio to the value of the whole area comprised in the plan as one-twentieth of that area less any area provided for public open space in the final plan and any area created by the final plan of the littoral or riparian reserve bears to that whole area.

(3) If the owner and the council do not agree on the amount to be secured, it is to be determined as a disputed claim for compensation under the Land Acquisition Act 1993 .

(a) a bond by the owner of an amount in excess of any possible demand to secure payment of the amount within 90 days after the demand is made after the final plan has taken effect; and

(b) a guarantee by an authorised deposit-taking institution, a guarantee, money-lending, insurance or trading corporation approved by the council guaranteeing all money payable on the bond.

(5) The council is to receive an amount payable under this section on trust for the acquisition or improvement of land for public open space for the benefit of inhabitants of the municipal area."

1. The claim which came before the primary judge purported to rely upon the conferral of jurisdiction contained in s 117(3), that is as a disputed claim for compensation under the Land Acquisition Act. That Act is, of course, concerned with the compulsory acquisition of land by the Crown and other defined acquiring authorities. Section 36 provides for claims for compensation in respect of land so acquired. By s 41, a disputed claim for compensation arises where the amount claimed by the landowner is rejected by the acquiring authority. Section 42 provides for methods of determining disputed claims, one of which is by application to the Supreme Court. The Land Acquisition Act does not encompass nor confer jurisdiction in respect of the dispute arising as to the amount payable as a contribution for public open space on a subdivision under the LGBMP. The only available basis for the Supreme Court's jurisdiction to determine this question as a disputed claim for compensation is that contained in s 117(3).
2. Notwithstanding the position of the parties concerning jurisdiction, this Court raised concerns in relation to that question at the commencement of the hearing of the appeal. The Court's concern arose from a possible construction of the section, which rendered its application dependant upon s 117(1) being enlivened by a requirement by the council for security for a payment. Both the parties and the primary judge had assumed that such a requirement had not been made, although having regard to the permit condition this would seem to be incorrect. In any event, the position of the parties is that on a proper construction of the section, s 117(2) authorises the payment of a cash contribution in lieu of public open space irrespective of whether the council has first sought security for such a payment under s 117(1). This Court's concern was whether that position was correct.
3. The resolution of this question depends upon the construction of s 117. The construction of the section is also necessary in any event in order to understand its operation and this in turn is likely to shed light on, if not determine, the substantive questions concerning valuation on this appeal. There are also related questions in respect of the operation of the section, including whether the assessment of value is to follow the provisions of the permit condition or otherwise be determined by the section, and the role played by provisions of the Land Acquisition Act, in respect of the determination of the relevant payment.

1. The construction of the section, as with any legislative provision, will depend on both textual and contextual considerations. In Raff Angus Pty Ltd v Resource Management and Planning Appeal Tribunal [2018] TASSC 60, I summarised the task in this way:

"The starting point of any process of statutory construction is the plain and ordinary meaning of the text, read in the context of the surrounding provisions and the legislative scheme. The aim of the process is to derive from the statutory words read in context, the meaning "that the legislature is taken to have intended them to have": Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at 384, per McHugh, Gummow, Kirby and Hayne JJ.

In Taylor v The Owners - Strata Plan No 11564 [2014] HCA 9, 253 CLR 531, Gageler and Keane JJ expanded on the relevance and effect of context in the process of statutory construction:

'Statutory construction involves attribution of legal meaning to statutory text, read in context.' 'Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning ... But not always.' Context sometimes favours an ungrammatical legal meaning. Ungrammatical legal meaning sometimes involves reading statutory text as containing implicit words. Implicit words are sometimes words of limitation. They are sometimes words of extension. But they are always words of explanation. The constructional task remains throughout to expound the meaning of the statutory text, not to divine unexpressed legislative intention or to remedy perceived legislative inattention. Construction is not speculation, and it is not repair.

Context more often reveals statutory text to be capable of a range of potential meanings, some of which may be less immediately obvious or more awkward than others, but none of which is wholly ungrammatical or unnatural. The choice between alternative meanings then turns less on linguistic fit than on evaluation of the relative coherence of the alternatives with identified statutory objects or policies." [Footnotes omitted.]

1. To the extent that there is more than one possible construction, I note the provisions of s 8A of the Acts Interpretation Act 1931, which provides that an interpretation that promotes the purpose or object of the Act is to be preferred to an interpretation that does not do so.
2. Some observations can be made about the text of s 117 and its apparent operation within the legislative scheme. Firstly, it is apparent that the section is concerned with the liability for and calculation of a cash payment instead of provision of public open space in the subdivision. The section is not limited to the question of provision of security for such a payment as provided in s 117(1) but also contemplates that the payment will ultimately be made. See in particular s 117(5). Secondly, s 117(2) is concerned with calculation of "an amount required to be paid". It does not expressly provide that its operation is subject to a requirement for security for payment of that amount having been made under s 117(1). This suggests that the provision of security is intended to be a mechanism for ensuring payment of the relevant amount, but that the requirement for payment and its calculation is not dependent upon the utilisation of that mechanism. In other words, the council will have the power to require payment of a cash amount calculated under s 117(2) notwithstanding that it has not first sought security under s 117 (1). Although the right to require such a payment is not spelt out expressly, I am of the view that it arises as a matter of necessary implication from the text of s 117(2). Further, both ss 117(1) and 117(5) assume that a payment will actually be made. Otherwise, there would be nothing to secure or receive as the case may be.
3. The Supreme Court's jurisdiction to determine a dispute about the calculation of the "amount required to be paid" under s 117(2), as a disputed claim for compensation under the Land Acquisition Act, depends upon the construction of s 117(3) and, in particular, the meaning of "the amount to be secured". It is common ground between the parties that "the amount" is that arising under s 117(2), although it could encompass, as well, a dispute about the amount of security under s 117(1). I am satisfied that this construction is correct. Section 117(4) provides for the security that may be required, which is clearly a reference to the requirement that may be made under s 117(1). The security includes "a bond by the owner of an amount in excess of any possible demand to secure payment of the amount". The necessary implication from and the assumption which underlies these provisions is that the amount of security and the amount of the payment are different and are to be calculated at different times. This is consistent with the structure of the section. Section 117(1) expressly provides that the requirement is to be made "before approving a plan of subdivision". Having regard to the definition of "plan of subdivision", the relevant approval must be the planning approval. This accords with the overall legislative scheme which requires the question of the provision of public open space to be dealt with at the planning approval stage. If the submitted plan of a subdivision does not provide a satisfactory amount of public open space, then under s 85, the council may reject the plan. Alternatively, it may proceed under s 117 to require a cash payment in lieu of provision of actual land in the subdivision. It is desirable that that question be dealt with at the planning approval stage but, of course, it is not possible at that time to determine the value of the land upon which the cash payment is to be based, and hence the precise amount of the payment. This is because the subdivision process is not then complete. That question can only be determined after it is complete, that is when the final plan takes effect as a sealed plan under s 94. This is consistent with the text of s 117(2) which requires a calculation in accordance with the "final plan". In particular, it requires the determination of "the value of the whole area comprised in the plan" and "any area provided for public open space in the final plan". I have already discussed the definition of this term. The final plan comes into existence after the planning approval. I will return to the precise timing of this calculation shortly.
4. Because the requirement is made at the time of planning approval, but the precise calculation of the payment cannot be made until later, the legislative scheme provides for security for the payment to be put in place when the requirement is made. This is the purpose of s 117 (1). The council can determine that it will seek a payment in lieu of public open space and seek security for that payment at that time. Therefore, s 117(4) provides for the security, the bond, to be for an amount "in excess of any possible demand to secure payment of the amount".
5. The necessary implication is that ss 117(1) and (2), although related, have separate operation. Even if the council does not seek security under s 117(1), it can still require the payment under s 117(2). Of course, this gives rise to the question of the mechanism and timing of such a requirement so as to create liability under s 117(2). Again, this is not dealt with expressly in the section. However, in my view, the question of timing arises by clear implication from the legislative scheme. If the council intends to require such a payment, then whether or not it seeks security for the payment, it must give notice of that requirement at the time of planning approval. This is necessarily implied by the section, and any other interpretation could lead to an open-ended liability, and this is inconsistent with the legislative scheme. It could result in absurd, unjust, or unreasonable consequences. This interpretation informs the second part of the question, the mechanism by which the requirement is to be made. The position of both parties is that the council's power in this regard arises implicitly from the section, and it can simply make a demand for the payment. I reject this. In my view, it is clear from the legislative scheme that any such requirement must be made in the conditions of planning approval. The council clearly has power to impose such conditions: s 51(3A) of LUPA; Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63. That, in fact, is what it did in this case. The condition on the permit required a payment in lieu of provision of public open space to be calculated at a later time and permitted the condition to be satisfied by provision of appropriate security for the payment. The use of a condition of the planning permit to make the requisite requirement is logically consistent with the overall scheme, in particular the intention that the question of public open space is resolved, at least in principle, as part of the planning approval. It fits neatly with the use of provision of security to ensure that the requirement for the payment is established but to leave the precise calculation and making of the payment to a more appropriate time, in particular when the subdivision takes effect. When that calculation is made, the assumption in s 117(4) is that there will be a "demand" for payment. Again, that is what occurred in this case.
6. The question which then arises is the interrelationship between the terms of the condition and the relevant provisions of s 117. In particular, does the liability for and calculation of the payment arise pursuant to and under the terms of the condition, or alternatively is the condition subject to the provisions of s 117 in that regard. I am satisfied that the latter is the case. In other words, once the requirement for a payment including by way of security is made by way of condition, then the provisions of the legislation will apply according to the terms of the section and will, if applicable, take precedence over any contrary provision in the condition. This is of some importance in this case because the relevant condition contains a number of provisions which are inconsistent with the provisions of s 117. Firstly, it required the value to be calculated by reference to "Lots 1-7", rather than "the whole area comprised in the plan" as required by s 117(2). Secondly, it required the contribution to be calculated by the Valuer General. Of course, to the extent that this suggests that the payment must be in accordance with that determination, it would preclude the determination of the amount in accordance with s 117(3), and would therefore have the effect of ousting the legislatively conferred jurisdiction of the Court. A final matter which is relevant to the application of the section is that the council must receive the payment on trust as provided in s 117(5). In my view, it is clear that the section is intended to apply in the circumstances and must take precedence over the terms of the condition where they are in conflict. Accordingly, to the extent that the condition is inconsistent with the section, it is ultra vires and of no effect. In this case, the relevant parts of the condition are easily severed from the balance, leaving the balance valid and with legal effect.
7. This construction disposes of the jurisdictional questions. In particular, the calculation of the payment under s 117(2) was not dependent on whether security had been required or provided under s 117(1), and further that the dispute in respect of calculation fell to be determined as a disputed claim for compensation under the Land Acquisition Act. This will be so irrespective of the question of security but in any event it is clear that the relevant permit condition enlivened both ss 117(1) and (2). As events transpired, the appellant purported to make an actual payment to the respondent before the plan was sealed and did not seek to provide alternative security. This does not affect the question of jurisdiction. The amount that required determination was the "amount required to be paid" under s 117(2). It is common ground that the appellant's payment was made provisionally upon the final amount being agreed and that the parties have been unable to reach agreement. Accordingly, the Court had jurisdiction to determine the amount as a disputed claim for compensation under the Land Acquisition Act.

1. It is clear that the critical question that underpinned the approach of the valuers and the primary judge's determination of value is the date at which value was to be determined. This question, particularly in the circumstances of this case, was important because it affected both the data which informed the assessment of value and the stage of the subdivision process at which value was to be assessed. I am satisfied that this Court should construe the provision to answer the question of the timing and subject matter of the valuation for the purpose of s 117(3).
2. For the appellant, all three grounds are underpinned by the argument that the correct date of assessment was the date on which the final plan was first provided to the respondent by the appellant's surveyor under s 88(1), which is 19 January 2021. The appellant's argument relies on the wording of s 117(2). The section requires value to be assessed by reference to one twentieth (5%) of the whole area comprised in the plan "less any area provided for public open space in the final plan and any area created in the final plan of the littoral or riparian reserve bears to that whole area". The appellant notes that the definition of final plan means "a final plan referred to in s 87". Hence, the argument goes, value must be assessed at the date that the plan of subdivision first becomes the final plan by lodgement under that section.
3. There is a fundamental difficulty with this argument. While it is true that the calculation is to be made in accordance with s 117(2), and the section requires an assessment of value, it is, in contrast with s 116, silent on the question of how that value is to be calculated and in particular, the date of the assessment of value. In my view, there is no grammatical or logical connection in s 117(2) between the date of assessment of the value and the provision of public open space at the point that the plan of subdivision first becomes a final plan. On the contrary, the final plan remains exactly that through various iterations until it is endorsed by the Recorder under s 94. In my view, the reference to the final plan in s 117(2) is not intended to guide the question of when value should be assessed. It is intended to be a reference to the plan which will eventually become the sealed plan under s 94, which until that point proceeds through the process as the "final plan".
4. As already discussed, the better approach is to consider construction of the provision having regard to its legislative purpose and taking account of its place within the legislative scheme. The critical aspect of the legislative purpose of the requirement for such a payment is to place the council as closely as possible to the position it would be in if the relevant land had been set aside in the subdivision. In other words, the council should be able to receive from the developer a sufficient amount of money to enable it to purchase alternative land within the municipality to fulfill the function of public open space that would otherwise have been provided in the subdivision. This necessarily requires value to be determined for the purpose of assessment of the amount required to be paid under s 117(2) on the basis that the subdivision process has been completed, and the subdivided allotments will be available for individual sale. This approach is consistent with s 117(4)(a) which provides that the security that may be required includes a bond "of an amount in excess of any possible demand to secure payment of the amount within 90 days after the demand is made after the final plan is taken effect". The final plan takes effect as provided by s 94, that is when the Recorder has accepted the plan. At this point, the subdivision is, in practical terms, complete and it simply remains for the Recorder to follow through with the consequential formalities and machinery steps including the creation of any necessary folios. This construction accords with the legislative scheme which intends the payment in lieu of provision of public open space to be an alternative to the receipt by the council of actual land in the final subdivision. Section 117(5) makes it clear that the money is to be used for the acquisition and improvement of land for public open space for the benefit of inhabitants of the municipal area generally, and this can only properly be achieved if the council receives in lieu of actual land, an amount sufficient to permit the purchase of compatible land.
5. In my view, s 116 does not assist the construction of s 117 on this question. Section 116(6) expresses a legislative choice with respect to the date of valuation, but such a choice is conspicuously lacking from s 117. In any event, s 116 is concerned with a payment made for a different purpose and in different circumstances. Although it is part of the matrix of provisions which regulate the determination of the public open space issue at the time of planning approval, it is concerned with land which the council wishes to purchase in excess of five per cent of the subdivided land to which the council is otherwise entitled at nominal cost. It is concerned with the price council must pay for the extra land, not with the amount to be paid by the developer in lieu of provision of land which would otherwise be provided to the council at nominal cost. Further, although s 117(3) requires "the amount" to be determined as a disputed claim for compensation under the Land Acquisition Act, that legislation also provides little if any, guidance on the question of assessment. Section 27 provides that in determining compensation under the Act, regard is to be had to the market value of the subject land. This was the basis of the valuation methodology used by both valuers, but it does not assist with other aspects of valuation in particular the date of the valuation. Insofar as the Land Acquisition Act deals with such questions, its provisions are patently inapplicable to the calculation under s 117(2). Again, it is dealing with a different legislative framework, and subject matter and valuation for a different purpose.

1. Accordingly, I reject the submission made on behalf of the appellant that the date of valuation should be assessed at the time that the plan of subdivision first becomes the final plan upon being sent by the owner's surveyor to the council under s 87. The primary judge was substantially correct when he determined that the appropriate date for valuation was 16 September 2021, which he determined was the date when the respondent forwarded the final plan bearing its seal to the Recorder, so that the plan could be signed and dated and hence take effect in accordance with s 94. His Honour was therefore correct in his determination that the land was to be valued for the purpose of calculating the amount required to be paid under s 117(2) on an after-subdivision basis, which was consistent with the approach adopted by Mr Bevin. His Honour did not err when he accepted Mr Bevin's opinion evidence in preference to that of Mr Page. Mr Page's opinion was of no assistance because it was calculated at an incorrect date and on a before-subdivision basis. Although Mr Bevin had assessed value at a slightly earlier date than that on which the plan took effect under s 94, the ultimate determination of value was a matter for the primary judge. His Honour's view that the earlier assessment would make no material difference to the final value is unimpeachable.
2. For the reasons set out above, I conclude that the grounds of appeal are without merit. I would dismiss the appeal.