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[2004] VCAT 602
Victorian Civil and Administrative Tribunal
2004-04-02
Stuart Morris J
Original judgment source is linked above.
The applicant for review seeks to have this condition deleted. Although the application is out of time, I am satisfied that an extension should be granted.
2 Prior to the development of the units the land consisted of two titles upon each of which was erected a dwelling. The two titles essentially divided the land in a north-south direction. The effect of the proposed subdivision is to replace that configuration of the land in two lots with a configuration in three lots or, put in another way, only one additional lot is to be created.
3 Clause 52.01 of the Glen Eira Planning Scheme adopts the VPP requirement that a person who proposes to subdivide land must make a contribution to the council for public open space in an amount specified in the schedule to the clause. Of course, where no amount is specified in a schedule to the clause, the contribution for public open space may still be required under of the . In this case the schedule provides that any subdivision of land in the Residential 1 Zone must make the contribution specified in a table contained in the schedule. One of the requirements of the table is that if the number of lots in the subdivision capable of containing a dwelling is three lots, the percentage of contribution must be 2 per cent. There are other provisions in the schedule, but I have not looked beyond that requirement in this case.
The subdivision is exempt from a public open space requirement, in accordance with section 18(8) of the Subdivision Act 1988, if:
* it subdivides land into two lots and the council considers it unlikely that each lot will be further subdivided.
The permit applicant relied upon this provision to argue that no contribution should be required in this case.
5 I should say that if the matter was one of discretion, I would not have required the permit to contain a condition that there be a public open space requirement. This is because the subdivision has the effect of adding one additional lot only and all lots are such that it is unlikely that there will be further subdivision.
6 Section 18(8) of the Subdivision Act, upon which the quoted part of clause 52.01 is based, might be thought to be directed at exempting from the requirement to make a contribution modest subdivision proposals which result in there being just one additional lot and where there is no reasonable likelihood of further subdivision. Applying this logic it does seem to me unfair that the applicant in this case should pay the contribution. But where an amount is specified in the planning scheme, there is no discretion; and it is a case of determining the meaning of the planning scheme provisions and then applying them.
7 In this case the amount specified in the schedule is 2% (or at least 2%) and, further, the exemption in relation to a subdivision which divides land into two lots is simply inapplicable. I say this because this subdivision divides the land into three lots. It cannot be reasonably characterised as a subdivision into two lots. Possibly, if the subdivision had been done in two stages, it might have been configured so as to avoid the requirements of clause 52.01, but this was not the case.
8 What this case shows is that when strict rules are designed without some overriding discretion to deal with anomalous situations injustice can arise. It is the task of courts and tribunals, as best they can, to seek to achieve justice; but, in doing so, they are bound to apply the law. In this case, I regard myself as having no choice but to disallow the appeal because the exemption does not apply.
Grochowski
Glen Eira CC [2004] VCAT 602