15 The fact that a dispute exists in this matter about whether a public open space contribution can or ought to be required, and if so, what that contribution ought to be, arises from the failure of the council to amend its planning scheme to include requirements in the Schedule to Clause 52.01. By incorporating such requirements into the planning scheme, a contribution to the council for public open space in an amount specified in the schedule to the clause is mandatory[1]. Having regard to the objectives of the planning framework in Victoria in Section 4(2) of the P_lanning and Environment Act 1987_ and Clause 19.01 of the State Planning Policy Framework of the planning scheme, the Schedule to Clause 52.01 is intended to be the appropriate mechanism through which councils are able to place open space requirements on development proposals.
16 The opportunity to incorporate open space contribution requirements into planning schemes arose through the introduction of VPP format planning schemes in the mid 1990's and was intended to provide a straight forward mechanism through which councils would be able to specify their requirements without having to negotiate the otherwise complex provisions of Section 18 of the Subdivision Act 1988[2] on every subdivision application made to the Council.
17 There are considerable benefits to be gained through the incorporation of open space requirements into the Schedule, not the least of which is that it provides transparency and certainty for both the applicant and the council about what the open space contribution for a development will be. It also ensures that the council is able to secure a contribution where an existing building is being subdivided, subject to the exemptions contained in clause 52.01. Admittedly under Section 18 of the Subdivision Act 1988 there is a high degree of flexibility and discretion available about whether a contribution ought to be made and what that contribution ought to be, and that discretion will be lost where open space requirements are incorporated into the schedule to Clause 52.01, unless of course a discretion is built into the schedule. I suspect however that the time and cost associated with disputes about open space contributions are quite considerable not only to the Council but also to the applicant. These costs need to be taken into account by a council when it determines whether it wishes to retain the flexibility available under the Subdivision Act 1988, or whether it wishes to achieve a greater degree of certainty in these matters. The costs and delays associated with such disputes can be avoided where the Council is prepared to undertake the necessary strategic work in the first place, to justify an amendment to the Scheme and the incorporation of its requirements into Clause 52.01.
18 Notwithstanding the benefits of incorporating its requirements into the schedule to Clause 52.01, this Council for reasons best known to itself, has not pursued that course of action. Ms Bowden informed me that it is the council's intention to amend clause 52.01 but as Mr Tweedie correctly pointed out, the council's open space strategy is now ten years old and it has had ample opportunity to do the work necessary to amend its planning scheme.
19 Because there is no amount specified in the schedule to Clause 52.01, the power to impose a requirement to make an open space contribution derives from section 18 of the Subdivision Act 1988 and under the provisions of that Act, such a requirement can only be imposed where the council, and on review of a council decision, the Tribunal, is satisfied that as a result of the subdivision there will be a need for more open space.
20 It was Mr Tweedie's submission that there is no evidence before the Tribunal that establishes the approval of this subdivision has resulted in a need for more open space. Mr Tweedie went further and submitted that not only is there no evidence that the Council has any intention to acquire more open space but that the evidence which is available establishes that the contrary is the case, and that the council's intentions are limited to carrying out maintenance on or making improvements to existing open space. Mr Tweedie relied on Clause 21.11 of the MSS and on the council's open space strategy in support of his submission. Mr Tweedie referred me to the findings of that strategy document (at page 16 part 1) where a summary of the municipality's open space resources is provided and it is concluded that there is an adequate amount of open space with an adequate range of facilities to meet the needs of the community.
21 Mr Tweedie further submitted that while open space contributions do not necessarily need to be used for the acquisition of new open space and may be used for capital works/improvements to existing open spaces in accordance with the principles established by the decision of the Tribunal in Peter Herbert and Associates Pty Ltd v City of Stonnington 17 AATR 31, (the Herbert case) the test that more open space is needed must still be met before a contribution can be sought.
22 I am not persuaded by Mr Tweedie's submission on this point. A reading of the decision in the Herbert case indicates to me that the analysis in that decision proceeded on the basis that any distinction between whether more open space is needed or whether existing open space is in need of improvements, is more arbitrary than anything else. In my view it is reasonable for the council to carry out an assessment of whether a subdivision generates a need for more open space and whether it generates a need for improvements of existing open space, in determining whether a contribution ought to be made.
23 In the circumstances of this case however, my conclusions on this point are not fatal to the applicant's submission that no contribution ought to be imposed, because the council has not demonstrated to my satisfaction that there will be a need for more open space, or improvements to existing open space, as a result of this subdivision.
24 Mr Tweedie acknowledged that while it may reasonably be concluded that the addition of four dwellings might cause a marginal intensification of the use of public open space, this arises out of the construction of the four additional dwellings and not the approval of the subdivision. This is clearly the case. There are currently ten dwellings on the site (six of which were constructed in the 1930's and four which were constructed in accordance with a permit issued in 2004) and the subdivision makes no difference to that and it cannot therefore be concluded that the subdivision makes any contribution to the need for more open space. My findings in this respect are consistent with those of Morris J in J Palenkas v Whitehorse CC (2003) VPR 15 237, a case in which His Honour considered the merits of a permit condition requiring a public open space contribution be made in respect of an application to subdivide two dwellings on a lot. His Honour concluded in that case as follows: