Eisner v Mornington Peninsula SC [2020] VCAT 585

Eisner v Mornington Peninsula SC [2020] VCAT 585 | Case summary | Zoe

Based on the emphasis in the extracted provision above, I am not persuaded that it is open to me to even consider whether a section 173 agreement can be imposed to defer the public open space requirement to a future time. This clause makes it clear, in my view, that if it is determined that a public open space requirement must be made, then it must be effected through the permit to subdivide the land that generates the public open space requirement. Deferring such a payment through a section 173 agreement would be contrary to the mandatory requirement of clause 53.01.
Even if I considered that there was an ability to defer payment through requirement of a Section 173, I would not support this approach in the circumstances of this case. Further, such an agreement would not provide certainty that such a payment would ever be made, as it is possible that no further subdivision would occur, either by the choice of the owner or through discretion applied in any future approvals process.
There have been previous decisions of the Tribunal[13] that section 173 agreements are a 'last resort' rather than used in preference to a condition where a condition might not be able to deliver sufficient certainty.
In my view, a section 173 agreement to achieve what the applicant proposes, would in fact provide less certainty than retaining condition 8 as it stands.
Further, I find that if it is determined that a public open space requirement is necessary for a subdivision, such requirement should be paid at the time of that subdivision and not at some future, unknown time.
The applicant also referred me to a decision of the Tribunal in Timespan[14] in support of its contention. In that case, a section 173 agreement was imposed that effectively deferred the public open space for one of the lots in that matter.
However, it is not clear to me that the circumstances of that case are so similar to that which is before me now. That decision also sets out that there was no dispute about the inclusion of such a condition whereas there is in the case before me.

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Eisner v Mornington Peninsula SC [2020] VCAT 585 (9 June 2020)