Victorian Civil and Administrative Tribunal|2007-06-28

Freeman & Freeman v Boroondara CC [2007] VCAT 1146 (28 June 2007)

Review of condition requiring public open space contribution for a subdivision; prior approval of and development of eleven dwelling units on-site; no open space contribution required in previous subdivision of larger area of land of which this lot was one parcel; no schedule to clause 52.01 of the planning scheme; section 18 of Subdivision Act; a need for more open space or contribution; a lack of intention to provide open space in immediate area of subdivision.

Freeman & Freeman v Boroondara CC [2007] VCAT 1146

The decision of the responsible authority is varied in accordance with section 85(1)(e) of the Planning and Environment Act 1987. The Tribunal directs that Permit No PP06/00623 must contain the conditions as set out in the permit issued by the responsible authority on 21 August 2006 with the following modifications:

Condition 17 must be deleted from the permit and the conditions renumbered. The responsible authority is directed to issue an amended permit in accordance with this order.

Mr Ragu Appudurai, solicitor, of Russell Kennedy, solicitors

This is a review of a condition of a permit relating to the subdivision of land into eleven lots at 17 Pakington Street, Kew. The condition is condition 17. It states:

Prior to the issue of a Statement of Compliance, cash in lieu of open space equivalent to 5% per cent of the site value of the land must be paid to the Responsible Authority.

The grounds of review are summarised as the fact that the council had prior opportunity to make a requirement on a prior subdivision and did not and the subdivision itself will not create a need for any additional open space or to improve any existing open space.

The site is on Pakington Street and is a large lot that has resulted from a prior subdivision of land into three lots. It has an area of 2772 square metres. Eleven large double storey dwellings are being constructed in accordance with a permit issued at the direction of the Tribunal, No PP03/01358. The dwellings have their own secluded private open space, both at ground level and the first floor balconies for six of the eleven. No communal open space exists. The site is within 420 metres of a large park called Alexandra Garden, 450 metres off Petrie Square which is a neighbourhood park with other parks a further distance away as well as the large Yarra Bend Park which runs along the river for a considerable distance. The site also adjoins the Kew Primary School and is surrounded by a residential area in which there are a number of large multi-unit development sites.

This is to subdivide the land into eleven lots with each containing a dwelling and open space. The driveway is to be common property.

The land is zoned Residential 1 under which a permit is needed to subdivide land. There are no overlays. Clause 52.01 of the scheme is the appropriate mechanism within the scheme for a public open space contribution but there is no amount required under the schedule to clause 52.01 and therefore section 18 of the Subdivision Act is applicable.
I do not intend to list the various sub-sections of section 18(1A) of the Subdivision Act as these are contained in the file and the council's submission. I note that two State policies, clause 15.10 and clause 19.01 are applicable to this application.
The MSS and local policies contain matters in relation to existing open space and provision of new open space. Clause 22.09 of the scheme contains a policy in relation to public open space contribution and it sets a standard contribution rate to 5% of the land value. It can be reduced under certain conditions.
Clause 21.10-1, an overview of recreation and leisure in the municipality, outlines findings of an open space policy of 1996 and a leisure facilities strategy of 1997 as well as an arts and culture strategy of 1996. These strategies place emphasis on improving existing facilities to accommodate greater use such as a regional indoor basketball/netball facility as well as increased diversification of use of existing parkland trails etc.
Clause 21.10-3, objectives, strategies and implementation of the local policies, provide for the application of the Public Open Space Contribution Policy at clause 22.09 in accordance with the Subdivision Act 1988.

The foregoing sets the scene for this review. Both Mr Chow and Mr Appudurai spoke to written submissions as well as tabling various documents and photographs. These documents are retained on the Tribunal's file. It is therefore not my intention to repeat all the matters that were put before me as these are on the file.
Each advocate, in the material they tabled, included previous Tribunal decisions in relation to this matter. The key issue is whether the subdivision in itself will create the need for more public open space and whether there is an appropriate mechanism to levy the public open space contribution in the case where the development is either existing or under construction. As stated there is no provision under clause 52.01 to levy private open space contribution on this subdivision. Section 18(1A) of the Subdivision Act is therefore the mechanism that the council has relied on in imposing this condition. In support of the responsible authority's position Mr Chow tabled Tribunal decisions in Katella Barbara Nominees v Glen Eira City Council, VCAT reference P378/2002 where Member O'Leary included:

The real increase in population may be a greater determining factor in assessing the real increase in need for open space than some of the other criteria listed in the council's draft policy.

He supported this by quoting Member, now Senior Member, Baird in Ocala Pty Ltd v Glen Eira City Council, VCAT references P501/2002 and P640/2002, where Ms Baird concluded:

It is more relevant to have regard to the number of persons who created the potential demand for and demands on open space.

A further decision by Ms Baird in Ghent v Glen Eira City Council, VCAT reference P51833/2001:

Gave significant weight to the lack of communal open space and relatively small areas of private open space within the development and the increased demand on open space that is likely to occur through the subdivision and the previous occupancy of the site.

These decisions suggest that the increase in population on an allotment or allotments is a relevant figure to determine the needs on present and future open space. It was also accepted that improvements to open space is a legitimate use of monetary contributions under section 20(2)(b) and (c) of the Subdivision Act.
However in his submission, Mr Appudurai tabled two recent decisions by the former President of VCAT, Justice Stuart Morris, that
- (1) state that public open space contribution cannot be imposed on a development as such; and
- (2) that the subdivision of land where there are existing buildings does not in itself create any further need for public open space or of public open space contribution.

These decisions were Hand v Warrnambool CC [2004] VCAT 19 (6 January 2004) and Palenkas v Whitehorse CC [2003] VCAT 2043 (10 October 2003). The Palenkas case clearly establishes that clause 52.01 and its schedule is the appropriate place for the requirement for a contribution for public open space. This is where Mr Appudurai's arguments about the fact that there had been a previous permit for a three lot subdivision on which it would have been appropriate for the responsible authority to levy public open space and it chose not to do so, would have been the time to do this. Now the buildings were approved and have been constructed on the subject site, the mere creation of titles does not provide the extra need. In fact the former President in Hand referred to clause 62(6) of the Planning and Environment Act that states:

The Responsible Authority must not include in a permit a condition requiring a person to pay an amount for or provide services or facilities other than

(a) a condition required to implement an approved development contributions plan; or
(b) a condition requiring services or facilities to be provided in accordance with an agreement under Section 173.

In Hand there was no approved development contributions plan relevant to the application, nor did the former President consider that condition 11 (the condition being reviewed) was one that provided for special works to be done or paid for. Therefore, he stated, that the condition was not authorised by section 62(5), the section requiring approved development contributions and specified works. He followed by saying that

On the other hand, condition 11 is a condition requiring a person to pay an amount for a facility.

Hence, on the face of it, the responsible authority is commanded by section 62(6) of the Act to not include in a permit a condition to the effect of condition 11.

Mr Appudurai also referred to Georgiou v Bayside CC [2006] VCAT 1134 (13 June 2006) in which Member Hewet, also in dealing with a condition 11 requiring public open space contribution, followed the decisions of Justice Morris, particularly in Palenkas v Whitehorse CC and concluded that, for reasons he had outlined:

The schedule to clause 52.01 is the appropriate mechanism through which councils are able to place open space requirements on development proposals, and where a council has not incorporated its requirements into the schedule, it is I think very difficult to substantiate the imposition of such a requirement on a permit authorising a subdivision of an existing development.

As with Bayside, Boroondara has had its open space and recreation strategies in existence for ten to eleven years. These preceded the VPPs. The council has had more than ample time to place its public open space requirements into the schedule to clause 52.01 and, at this stage, seems not to have availed itself of that opportunity. In my view following the recent decisions of Justice Morris and Mr Hewet, with which I concur, I cannot uphold the responsible authority's condition for the very reasons that they used and therefore it will be deleted from the permit conditions.
One would hope that the responsible authority would give urgent consideration to the fact that it has not been able to substantiate its requirement for a public open space contribution here and seek to bring into effect the appropriate mechanism to enable it to do so in future.

Freeman & Freeman v Boroondara CC [2007] VCAT 1146

At a glance

Court

Decision date

Source

Judgment (28 paragraphs)

Freeman & Freeman v Boroondara CC [2007] VCAT 1146 (28 June 2007)

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