This statement of general principle applies more broadly to planning scheme provisions. The Planning and Environment Act is mature legislation and (together with cognate legislation, such as the Subdivision Act) is intended to authorise the making of planning schemes within limits. Some limits are to be ascertained from the general nature and scope of legislative provisions; other limits are to be ascertained by particular provisions, including the legislative history and context of those provisions.
28 Part 3B of the Planning and Environment Act authorises the making of a development contribution plan. This may require a person to make a public open space contribution upon the subdivision of land. Although this is relevant, it does not determine whether the planning scheme may make such a requirement outside of a development contribution plan: as section 46I of the Act makes it clear that the power to make a development contribution plan does not limit the general power to make a planning scheme.
29 Section 6(1) of the Planning and Environment Act is cast in broad language: it provides that a planning scheme may make any provision which relates to the use, development, protection or conservation of any land in an affected area. But this broad language is confined by the nature and scope of the legislation: for example, as the Act is a planning statute, not a taxing statute, it would not be regarded as extending to the making of a planning scheme that imposed a general land tax or a tax on the windows of dwellings[12] or the compulsory exaction of property. Further, there are particular provisions in the Act - such as the reservation provisions (that may give rise to a compensation claim under Part 5) and the compulsory acquisition power (in section 172) - that would be inconsistent with an unbridled power to make a planning scheme sterilising land or compulsorily taking land.
30 A provision that requires a person who proposes to subdivide land to make a contribution to a council for public open space must be interpreted in the light of the nature of the power to make a planning scheme. Clearly it is not a requirement to be taken literally: in order to trigger the requirement it must be necessary to do more than propose a subdivision. It would be unconscionable if a person was required to make a contribution in respect of a proposed subdivision for which a permit was ultimately refused. How, then, should clause 52.01 be interpreted?
31 In my opinion, there is no lawful basis for a planning scheme requirement for an open space contribution in respect of a subdivision which does not increase the number of lots. For a requirement to contribute open space to be a lawful requirement, a subdivision needs to be of a character that is likely to generate a need for more open space; otherwise, the requirement would be a mere tax. In this respect, the analysis in the seminal decision of Eddie Barron Constructions Pty Ltd v Shire of Pakenham[13] is relevant, even though the present context is that of a planning scheme provision, rather than what is a valid permit condition. Hence, I do not regard clause 52.01 as applying to a subdivision that does not create an additional separately disposable lot.
32 It is possible that the original authors of the Subdivision Act thought that this issue was put beyond doubt by the exemption provisions in the planning scheme. On 30 October 1989 the regional section of metropolitan planning schemes provided that any control over the subdivision of land did not include a subdivision which realigns the boundary between lots provided that any lot which is reduced in area meets any minimum lot area and dimensions for the zone. However the introduction of VicCode 1 in 1991 opened an argument as to whether there remained lot area minima in residential zones. Further, in September 1991 Victorian planning schemes were amended to confine the exemption provision (in cases where there was no minimum lot area) to a realignment of boundaries where no more than 30 square metres was being transferred.
33 It is instructive that clause 52.01 does not use the term "responsible authority", but uses the term "council": which is the same term which is used in section 18 of the Subdivision Act and which is defined in that Act (but not in the Planning and Environment Act, nor in the planning scheme). Further the other references in clause 52.01 to the Subdivision Act (and its predecessors) indicate a very strong connection between a requirement under the planning scheme and those Acts. I have already referred to section 18(8)(a) in this regard.
34 It would be an odd outcome if many of the provisions set out in the Subdivision Act in relation to a public open space contribution did not apply to a contribution pursuant to a planning scheme requirement. For example, it would be odd if a payment pursuant to a planning scheme requirement could be made after the issue of a statement of compliance without being secured in some way.[14] It would be odd if the provisions concerning staged subdivisions did not apply to a requirement under a planning scheme.[15] It would be odd if the provision that an open space requirement could only be made once did not include requirements under a planning scheme.[16] It would be odd if the valuation provisions found in section 19 of the Subdivision Act did not apply to a requirement under a planning scheme. And it would be particularly odd if Parliament intended that contributions under a planning scheme requirement would be devoid of the trust provisions set out in section 20 of the Subdivision Act.
35 Further, the history and context of the provisions are consistent with an intention that the machinery provisions in the Subdivision Act apply equally to contributions required by a planning scheme. This is clearest when it comes to the process of calculating the precise amount of a requirement, and to the way in which land or money, provided or paid pursuant to a requirement, must be used. But, in turn, it also suggests that the circumstances in which a requirement for public open space may be specified in a planning scheme - and has been specified in this planning scheme - are the same circumstances in which a council may require a public open space contribution under section 18(1) of the Subdivision Act. That is, that a planning scheme requirement ought be interpreted as only applying to a subdivision which creates an additional separately disposable parcel of land. Of course, the first of the two subdivisions in this case does not do this.
36 Thus, in my opinion, the effect of the opening words in clause 52.01 of the planning scheme is to fix the percentage (in this case at 5%, but which may be greater than 5%) of any contribution for open space, but to otherwise leave in place the provisions of the Subdivision Act as to the circumstances in which a contribution is required, the method of calculating the requirement and the trust in which funds or land the subject of a contribution must be used.
37 The conclusion I have reached may seem to be at odds with the decision of Senior Member Byard in Tucker v Mornington Peninsular Shire Council.[17] However Mr Byard was not required to address the question of the power to make a planning scheme which requires the payment of a tax in circumstances where a subdivision does not generate any additional need for open space. It is this issue that drives my conclusion: as I have interpreted clause 52.01 in a manner that confined its operation so as to be within power.
38 I wish to emphasise the equity of the outcome in this case. If one lot was being divided into two lots - with no prospect of re-subdivision - no contribution would be required. In other words, there is no open space requirement if the outcome that results is one additional lot. In this case two lots are to be re-subdivided, then one of them is to be subdivided into two, with the outcome being one additional lot. There is no basis in equity to require a contribution in the second case, but not the first.
39 In addition to allowing the application for review, I think I should also make a declaration that the subdivision does not attract the requirement contained in clause 52.01; because there is the possibility that the current dispute may persist, not in the context of a permit condition, but in the broader context of a planning scheme requirement.