If a council requires an applicant to pay an amount under sub-section (1) despite paragraph (a)[4], the whole or any part of the amount may be paid after the council issues its statement of compliance if the applicant and the council so agree under section 21(1)(b)(ii).

1. This latter section requires council to issue a statement of compliance as soon as possible after it is satisfied that there is an agreement to secure compliance of part 3 of the Subdivision Act (which includes the public open space requirement). I note that this elaborate provision is not included in clause 52.01.

1. A variety of approaches have been adopted to these issues, some of which are on appeal to the Supreme Court. I will deal with them chronologically.
2. Tucker v Mornington Shire Council No. 3[5] (decided in August 2006) only dealt with a two-lot subdivision under clause 52.01 which exempted it from a public open space requirement if council considers it unlikely 'that each lot will be further subdivided'. Senior Member Byard found that it was not unlikely[6] that each lot would be further subdivided and held that splitting[7] of a public open space contribution between the lots was unlawful.
3. Van Der Zweep v Maroondah City Council followed in September 2007. Member O'Leary analysed that the net outcome of the staged subdivision in that case, which is on all fours with my subject subdivision, is three lots; two containing a dwelling and a new vacant house lot.
4. Member O'Leary was comforted by a permit condition that gave council the discretion to require the five percent against 'the site value of all land in the subdivision or a particular lot or lots'. Member O'Leary was also comforted by a site specific fact of a restrictive covenant preventing more than one dwelling per lot on one of the lots. Conceding that clause 52.01 mandates a five percent contribution[8], Member O'Leary applied the five percent only to that part of the subdivision that resulted in the creation of one additional developable lot because the other two lots already contained dwellings and the covenant provides a limited ability to further develop them.
5. In Thompson v Maroondah City Council[9] the Van Der Zweep approach was urged upon me in a case concerning a two-lot subdivision under the clause 52.01 exemption. I found it not unlikely that each lot could be further subdivided. I heard Thompson before Scott v Maroondah City Council[10] was decided by the Supreme Court of Victoria. Scott revolved around a section 173 condition prohibiting further subdivision of either of the two lots (in a two-lot subdivision) except with the written consent of the responsible authority.
6. I found it not unlikely that both lots could be subdivided at some point in time in the future. I distinguished Van Der Zweep on the facts and refused to split the mandatory five percent contribution and apply it to one lot only. I sympathised with council's fear of repeated two-lot subdivisions avoiding this contribution by stealth.
7. I said that, were my hands not tied by the peculiar practice day circumstances of Thompson, I would have been prepared to impose a section 173 agreement preventing resubdivision of the lots and satisfying the 'unlikely' test of the clause 52.01 two-lot exemption.
8. Maroondah City Council v Scott[11] was decided in February 2008. Scott revolved around a rider attached to a permit condition requiring entry into a section 173 agreement prohibiting further subdivision of each of the lots in a two-lot subdivision 'except with the written consent of the responsible authority'. Justice Osborn held that the rider giving the responsible authority the power to permit resubdivision no longer prevented the land from being further subdivided and therefore could not render future subdivision 'unlikely'. Justice Osborn made it clear that his decision turned on a fundamental unexplained inconsistency between the Tribunal's reasons and the condition it imposed[12]. In coming to his decision, Justice Osborn considered the question of whether the five percent public open space could be split and only applied to a particular lot or lots instead of all the land in the subdivision[13]. As obiter dicta, Justice Osborn held that there is no warrant for imposing a five percent levy by reference to the site value of the proposed lots. Clearly Justice Osborn agrees with Senior Member Byard in Tucker and does not agree with the Van Der Zweep approach.
9. I was also advised that Fletcher[14] is still on appeal to the Court of Appeal of the Supreme Court of Victoria as is Haasta[15] (whose issues differ).

1. In my case, I am not being asked by the developer to impose a section 173 agreement preventing future subdivision of either of the two dwelling lots, although Justice Osborn did not find the imposition of such a condition invalid. What I am being asked is to split the contribution and apply it only to the newly created lot. Pursuant to the dicta of Justice Osborn in Maroondah City Council v Scott, I am unable to split the mandatory five percent public open space contribution under clause 52.01 between the lots.
2. Further, it is only in the case of a two-lot subdivision that clause 52.01 provides discretion for an exemption if it is unlikely that each lot will be further subdivided. The subject subdivision is a 'three lot subdivision' as conceded by all parties in this case, so there is no discretion to apply the exemption.
3. As to deferral of payment, I observe that clause 52.01 does not include the ability to give time payment in circumstances similar to those set out in a combination of section 18(1B)(c) in combination with section 21(1)(b)(ii) of the Subdivision Act 1988.
4. Council's solicitor points out Tucker refused to allow time payment but did not go so far as to say such a condition would be invalid. In Scott, Justice Osborn concluded that a section 173 agreement prohibiting resubdivision was a valid planning condition, applying the usual tests[16].
5. The attractiveness of the Timespan condition is that it works a less harsh outcome on the developer than an outright time payment refusal. Timespan imposes the public open space requirement over the whole of the land but defers its payment until the time of any further subdivision of the developed lot.

1. Given the Court's opinion that contribution splitting is unlawful, the preponderance of boundary alignments and re-subdivisions, the clause 52.01 silence as to time payment, the administrative burden and the delay imposed by the Timespan condition, it is my opinion that the Timespan condition may be justified in special circumstances but this case is not one of them.

[1] [2007] VCAT 1806 (3 October 2007), Member O'Leary

[2] where council considers it unlikely that each lot will be further subdivided

[3] [2003] VCAT 357, Senior Member Baird

[4] which requires the amount to be paid before council issues its statement of compliance

[5] [2006] VCAT 1780 (22 August, 2006), Senior Member Byard

[8] without the usual discretions contained in section 1(a) Subdivision Act 1988

[9] [2007] VCAT 2455 (20 December 2007)

[10] [2007] VCAT 1474

[11] [2008] VSC 42 (21 February 2008), Osborn J

[13] council's permit condition read 'the applicant or owner must pay to council a sum equivalent to five percent of the site value of all land in the subdivision or a particular lot or lots' (Tribunal emphasis)

[14] [2006] VCAT 2205 (8 December 2006), Morris J

[15] Hasstta Holdings Pty Ltd v Maroondah City Council P1663/2007 per DP Gibson

[16] Roads Corporation v McCarthy [2004] VSC 369; (2004) 137 LGERA 433 at 448; 271 William Street Pty Ltd v City of Melbourne [1975] VicRp 15; [1975] VR 156 at 162; Allen Commercial Constructions Pty Ltd v The Council of the Municipality of North Sydney [1970] HCA 42; (1970) 123 CLR 490 at 499; Crichton v City of Moorabbin [1992] VicRp 69; [1992] 2 VR 372; Pyx Granite Co Ltd v Ministry of Housing and Local Government [1958] 1 QB 554 at 572; Protean (Holdings) Ltd v Environment Protection Authority [1977] VicRp 5; [1977] VR 51 at 59; Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) HCA 63, (2004) 137 LGERA 232